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[2015] ZALCD 41
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Devraj v Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines and Others (D1154/13) [2015] ZALCD 41 (10 July 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
JUDGMENT
Not Reportable
Case no: D1154/13
DESMOND
EMMANUEL DEVRAJ
Applicant
And
UNITRANS PASSENGER (PTY) LTD t/a
GREYHOUND COACH LINES
First
Respondent
SOUTH AFRICAN ROAD PASSENGER
BARGAINING COUNCIL
Second
Respondent
DR HILDA GROBLER
Third
Respondent
Heard: 02 December 2014
Delivered: 10 July 2015
Summary: Review of an award – applicant
uttering a threat to inflict violence – threat serious to
justify dismissal
-
piecemeal or a fragmented analysis of an
award inappropriate – application dismissed.
JUDGMENT
Cele
J
Introduction
[1]
This application in terms of section 145 of the Labour Relations
Act
[1]
has been brought for an order in the following terms:
(1)
the arbitration award handed down by the third respondent under case
no: RPNT 1613 dated 14 September 2013 and received
by the applicant
on 20 September 2013 is reviewed and set aside in terms of the
provisions of section 145 of the Labour Relations
Act ,66 of 1995.
(2) That in the circumstances the applicant`s dismissal
was unfair.
(3) That the applicant is reinstated by the first
respondent.
The
first respondent opposed the review application in this matter.
Factual
Background
[2]
The applicant was in the employ of the first respondent (employer)
for a period of about 6 years as a Bus Driver in a transport
industry. The first respondent was the owner of a fleet of luxurious
buses some of which were used in the tourism industry. The
first
respondent had an arrangement with the Private Safaris to convey
tourists to various destinations, including hotels where
such
tourists would be accommodated. One such Hotel was the Pine Lake Inn.
[3]
One employee, a Food Beverages Manager of Pine Lake Inn, was a lady
known as Sally. For whatever reason and circumstance the
applicant
and Sally did not get along. The result was that the applicant could
no longer be accommodated at Pine Lake Inn overnight
as he brought in
tourists. He used another Hotel across the road from Pine Lake Inn.
[4]
On 20 February 2013 the applicant was driving tourists to Pine Lake
Inn for an overnight stay. He also needed to have accommodative.
In
his bus there was also a Tour Guider known as Alex. The applicant was
advised by Alex that Sally had declined accommodation
for the
applicant in an arrangement that Alex had made with Sally on the
previous day. The applicant, while still enroute to Pine
Lake Inn,
booked a telephone call to the inn and asked to speak to Sally. The
duty Manager Ms Charlene Minaar received that call
and reported that
Sally was not in at the time. The applicant asked to speak to the
General Manager and was told that he was also
not in.
[5]
The applicant that left a message for Sally with Ms Minaar, according
to the applicant he said that:
“
I
am coming and I am going to f*% bash her head in “.
[6]
According to Ms Minaar the applicant used an ‘f’ word but
not freaken. Ms Minaar reported the matter to Mr Daniels
of Pine Lake
Inn who in turn telephoned Mr Koos of the first respondent. The first
respondent immediately sent another bus driver
to Pine Lake Inn to
replace the applicant. Ms Minaar also conveyed the message to Sally
and she overheard Sally making arrangements
with High Tech Security
to make available guards upon the arrival at the Inn of the
applicant. The first respondent instructed
the applicant to report at
its offices. It then suspended him and charged him with misconduct
which it described as:
“
Placing
the company`s name into disrepute in that you threatened Sally from
Pine Lake Inn telephonically over the secretary of Pine
Lake Inn”.
[7]
The internal disciplinary hearing was scheduled and it took place but
none of the staff from Pine Lake Inn testified. The applicant
was
found to have committed the act of misconduct he was charged with.
The first respondent dismissed him. He referred an unfair
dismissal
dispute for conciliation and when the dispute could not be resolved
he referred it for arbitration. The third respondent
was appointed to
arbitrate the dispute. Various witnesses were called by the first
respondent, including Ms Minaar. The applicant
was the only witness
to testify for his case.
[8]
The third respondent found that the applicant committed the
misconduct proffered against him. She found also that the dismissal
was procedurally and substantively fair and she dismissed his
application. Her chief findings may be summarised as follows
hereunder.
Chief
findings
Ø
She said that it made little
difference whether the applicant had used the words “ he would
knock/smash/bash Sally`s fucking
or freaking head as both words,
regardless of the aggressive content thereof were no more than
adjectives.
Ø
The applicant made two threats. The
first was that he would attack her upon arrival at the hotel and the
second spoke to the manner
in which he would attack her. The threat
suggested that he would physically harm her by beating her up. The
Hotel took the threat
seriously, hence the deployment of two extra
security guards.
Ø
While driving the tour bus the
applicant represented the first respondent in that he was wearing
first respondent’s uniform
and was carrying out its
instructions in driving the tourists to Pine Lake Inn. His conduct
was immediately associated with that
of the first respondent. The
applicant contravened the first respondent’s code of conduct in
that, while he was on duty,
he behaved in an unprofessional manner or
failed to in good faith and in the best interest of the employer.
Thus his conduct had
the potential, at the very least, to call into
question the reputation of the employer.
Ø
The understanding of the applicant
that there was no relationship between the first respondent and Pine
Lake Inn was fallacious.
There was a link between the first
respondent, Pine Lake Inn and the Tour Guide.
Ø
There was no negative impact on the
tourists being transported only because the first respondent
intervened immediately and sent
another driver to replace the
applicant.
Ø
The first respondent proved that the
applicant brought the name of the company into disrepute.
Ø
The applicant had threated a Tour
Guide before, even though he was not disciplined for it as the
company accepted his explanation.
He had a propensity for such
misconduct.
Ø
On procedural fairness, there was
nothing to show that the internal chairperson deliberately excluded
the applicant’s witness
from testifying. In any event that
witness was not present when the incident in question took place.
There was thus nothing to
show that the dismissal was procedurally
unfair.
Ø
The sanction of dismissal was the
only appropriate sanction in the circumstances.
Grounds
for review.
[9]
The submission is that the award of the third respondent fell to be
reviewed, set aside and corrected in that the third respondent
committed a gross irregularity by making findings that were not
rational and justifiable in relation to the evidence placed before
her. It was hence not a decision a reasonable decision maker could
have reached.
[10]
The third respondent was said to have erred by misinterpreting vital
evidence and by employing flawed reasoning in making a
determination
of the matter. There was hence a defect in relation to the
interpretation of evidence by the third respondent. The
third
respondent erred by making a finding that the first respondent
provided a service to the Tour Operator known as Private Safaris
in
the same way that Pine Lake Inn Hotel provided an accommodation
service.
[11]
It was contended that the Tour Operator was a customer of the first
respondent. The Pine Lake Inn Hotel was a service provider
providing
an accommodation service to tourists, tour guides and drivers
travelling on the coaches of the first respondent. The
result was
that it could therefore be said that the Tour Operator and the first
respondent were customers of the Pine Lake Inn
Hotel. The reasoning
used by the third respondent that the first respondent would have
been prejudiced by the conduct of the applicant
was therefore said to
be flawed. The Pine Lake Inn Hotel was there to provide an
accommodation service to its customers. The applicant,
like the first
respondent, was a customer and should have been treated with courtesy
and respect by the staff of the Pine Lake
Inn, said the submission.
[12]
The applicant said that there was no negative impact on the tourists
the applicant had transported to the Pine Lake Inn. The
only negative
effect was that the applicant was not provided with accommodation at
the Pine Lake Inn. The submission was that the
respondent did not
sufficiently examine the entire context in which the incident had
taken place. The third respondent did not
consider the entire context
specifically the concessions made by the chairperson of the
disciplinary enquiry,
inter alia,
that:
·
She was aware of the history between
Sally and myself,
·
That the issue remained unresolved
·
That she considered the fact that
Sally was a difficult person and that the applicant was very
frustrated.
[13]
It was also applicant’s submission that the effect of the
incident and/or his conduct was exaggerated by the third respondent.
The applicant said that he did not misbehave on the premises of the
Pine Lake Inn. Neither did he have any direct telephonic contact
or
direct confrontation with Sally on the day in question. He was
further advised that it was trite that in accordance with the
concept
of progressive discipline, dismissal should only be imposed as a last
measure in a series of penalties or in respect of
serious misconduct
which did not warrant progressive discipline. The third respondent
was said to have erred by not taking into
consideration in addition
to the gravity of the misconduct, factors such as applicant’s
circumstances including length of
service, previous disciplinary
record and personal circumstances as those aspects were not dealt
with in her award. The applicant
was advised that those factors ought
to be considered and weighed up together to decide whether dismissal
was justified, or whether
a less severe sanction would be more
appropriate. The third respondent was said to have erred by not
furnishing any reasons for
finding that the sanction of dismissal was
the only appropriate sanction in the circumstances.
Opposition
to the review application
[14]
The submission by the first respondent was that a piecemeal or
a fragmented analysis of an arbitrator’s award as done by the
applicant was inappropriate. The question was not whether each and
every step along the way of the arbitrator coming to an overall
conclusion was correct. The test is not process based. The test is
rather outcome based. In other words, the question in final
analysis
was whether the overall outcome, in this case the conclusion that
dismissal was an appropriate penalty, was one which
a reasonable
arbitrator could not have reached. The question was also not whether
the arbitrator made factual errors. Even an error
or errors along the
way can on an overall conspectus result in a substantive outcome
which is not unreasonable. It was submitted
that the overall
conclusion in this case, that the Applicant committed misconduct
which was serious enough to justify dismissal,
is not one which a
reasonable arbitrator could not have reached.
[15]
Individual submissions to answer to the issues raised by the
applicant were then made.
Evidence
[16]
It behoved the first respondent to prove the fairness of the
applicant’s dismissal. The Operations Manager Mr Maphumulo
testified that the employer relied almost entirely on referrals which
came from hotels, and that if staff were allowed to threaten
hotel
staff it would be very difficult for the employer to get future jobs.
He said that a professional driver of tourists while
holding a public
permit should not be threatening the public.
[17]
The chairperson of internal hearing, Mr Royeppen said that the
applicant had put the company’s name into disrepute and
that
the employer’s reputation was placed at risk. Mr Royeppen also
admitted that Sally had been described as a headache
and a difficult
person to work with. Mr Nel, Manager of the first respondent, who
also assisted with marketing, the operations
side and dealt with
clients, immediately reacted on the report of what the applicant had
done, because he held the view that the
company’s name had been
put in a very bad light and the situation had to be corrected
urgently. When the general manager
of the hotel telephoned Mr Nel,
the Manager came across to Mr Nel as very upset. Mr Nel said that two
of his drivers had problems
with Sally, that the applicant did not
resolve his issues with Sally, further that the employer addressed
the issue with the hotel
but that the hotel’s policy was clear
that it could decide who stayed overnight, and consequently drivers
were booked in
across the road. He said that efforts to reconcile the
applicant and Sally were unsuccessful, and the applicant stayed
elsewhere.
Mr Nel said that the applicant threatened someone, a lady,
in the work situation before, although the employer did not take
formal
action against the applicant at the time.
[18]
The first respondent’s version was that when the applicant
uttered the threat, he was busy working as a bus driver, he
was in
the employer’s bus, and was wearing the employer’s
uniform. There was evidence of a 3-way relationship between
the
employer, the hotel, and the tour operator. That money may not have
been flowing directly between bus operator and hotel was
irrelevant.
The conduct was sufficiently work related, because as part of his
work the applicant had to stop at that particular
hotel for the
passengers to sleep over. Had it not been for the applicant’s
job, he would not have had any contact with Sally.
[19]
The applicant admitted making the threatening remarks though of a
different flavour and justified doing so,
inter
alia
, by saying that:
§
He never intended to carry such
threat to fruition;
§
He made the utterances out of
frustration due to Sally’s attitude towards him;
§
Such utterances were not made direct
to and there was no confrontation with Sally;
§
He was not at the premises of the
Hotel when he uttered them;
§
While the first respondent knew out
the negative attitude Sally had against him, it did nothing to
resolve the issue;
§
His conduct did not affect the
relationship between the first respondent and the Tour Operator;
§
The Pine Lake Inn was only a service
provider and could not pull away any business. Instead it received
business from the Tour Operator;
§
There were strong mitigating factors
justifying progressive discipline.
[20]
The applicant admitted though that the employer would be affected
should tour operators stop using its buses because of conduct
of
drivers.
Evaluation
[21] In these proceedings it needs to be
determined whether the arbitration award of the third respondent is
one that a reasonable
decision maker could not issue
[2]
,
in which case the review application would succeed.
[22]
The submission by the first respondent
that a piecemeal or a fragmented analysis of an arbitrator’s
award as done by the applicant
was inappropriate finds its base from
the decision in
Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine)
v CCMA and Others
[3]
.
The question was not whether each and every step along the way of the
arbitrator coming to an overall conclusion was correct.
The test is
not process based. The test is rather outcome based. In terms of the
Gold Field Mining decision t
he Court should not
dissect and investigate each step or statement or finding made in the
arbitrator’s award, but rather consider
whether the final
outcome was unreasonable.
[23] At the arbitration hearing it remained common
cause that the applicant made the threating utterances. Sometime was
spent on
the exact words he used but it was never in dispute that
whatever form they took, they were a threat. The applicant’s
version
suggested that the threat was not as horrific as it was taken
to be, thus mitigating the seriousness of the misconduct. The
Commissioner
had to and did make a finding on this issue. She found
that the acceptance of either version did not change the threatening
nature
of the utterances. She was entitled to make this finding. This
being a review application and not an appeal, the enquiry into the
issue ends.
[24] There never was evidence that the applicant
made the utterances in a joke. In fact, the applicant admits that he
was serious
when he made these utterances. He said that he spoke out
of frustration and he complained that the gripe between him and Sally
was never properly dealt with officials of the first respondent or
those of Pine Lake Inn. It could therefore not be an exaggeration
for
the staff at Pine Lake Inn and those of the first respondent to
accord seriousness in his utterances. Accordingly he
made a
serious threat to Sally. The threat suggested nothing else other than
that he would harm her physically. On arrival at the
Inn two security
guards were already waiting for him, in the event he wanted to carry
the threat to fruition. When the Tour Guide
told the applicant that
Sally had declined accommodation for him there was nothing new which
he was told of. He had no reason on
that occasion to expect that he
would sleep over at the Inn. He had an alternative accommodation
waiting for him. He objectively
had no reason to be frustrated. The
threat was therefore unlawful for lack of justification,
notwithstanding prevailing circumstances.
The company disciplinary
code provided dismissal for an unlawful threat.
[25] Alex, the Tour Guide, was around when the
applicant made the threat. The applicant would have come across as a
violent person
to those he did not agree with. He therefore did not
portray a positive image that an employee of the first respondent
ought to
have displayed to those the company was trading with. Alex
could very easily suggest to his employer not to use the buses of the
first respondent henceforth, so as to avoid exposing the tourists, on
whom they also depended for their business, to violence.
It is true
that employees of the first respondent, such as Drivers, were hotel
guests at Pine Lake Inn. For that reason, it remained
the prerogative
of the Hotel to decide who to give accommodation to, bearing in mind
the interests of its other hotel guests.
[26] The result is simply that the conduct of the
applicant could bring the first respondent’s name into
disrepute, a fact
the applicant denied. A swift action by Mr Nel
indeed minimised the seriousness of the misconduct from the eyes of
its business
clients. Any such clients would know that the first
respondent does not tolerate violence and is swift in taking
disciplinary measures
to eradicate it. The applicant was however not
entitled to the benefit of the swift action by the first respondent.
He was the
very cause of it.
[27] The evidence of the first respondent is
worthy of further consideration. Mr Nel said that two of his drivers
had problems with
Sally. Further that while the applicant’s
issue with Sally was not resolved, the employer addressed the issue
with the hotel
but that the hotel’s policy was clear that it
could decide who stayed overnight, and consequently drivers were
booked in
across the road. He said that because efforts to reconcile
the applicant and Sally were unsuccessful, the applicant stayed
elsewhere.
Therefore the applicant was not the only employee of the
first respondent at odds with Sally and there was a solution to
address
the drivers’ accommodation.
[28] In the arbitration award, there is reference
to the previous incident involving the applicant with a Tour Guide.
The applicant
was not disciplined for this incident as his version of
events was upheld. This incident ought therefore not to have been a
factor
in aggravation of the sanction. However, the employer’s
disciplinary code and procedure allowed for dismissal for a first
offence of threatening behaviour. His behaviour went beyond being a
mere threat. It had the potential to cause disrepute to the
company’s
name. The applicant continued denying that his utterances were
serious, meaning he could repeat a similar misconduct.
There appears
to have been little sign of remorse during the arbitration.
[29] Bearing in mind all the foregone
considerations, I am unable to find that the third respondent’s
decision is one that
a reasonable decision maker could not have
arrived at, as contended by the applicant. Consequently, the
following order stands
to be issued:
1.
The
review application in this matter is dismissed.
2.
No
costs order is made.
___________
Cele J.
Judge of Labour Court of South Africa.
Appearances
1.
For the applicant: Advocate T V O
Chetty.
Instructed by Gerhard Grobbelaar Inc. Durban
2.
For the first respondent: Advocate F van der Merwe.
Instructed by Hana Geldmacher
Attorneys, Bryanston.
[1]
Act number 66 of 1995, hereafter referred to as the Act.
[2]
See
Sidumo and Another v Rustenburg Platinum Mines Limited and
Others
[2007] 12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC).
[3]
(2014) 35 ILJ 943 (LAC) at paragraphs 14 to 21. See also
Herholdt
v Nedbank
(2013) 34 ILJ 2795 (SCA) par 25.