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[2016] ZALCJHB 21
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SACCAWU obo Tsoku v Commission for Conciliation, Mediation and Arbitration and Others (JR2467/10) [2016] ZALCJHB 21 (26 January 2016)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: jR 2467/10
In the
matter between:
SACCAWU obo SIMON TSOKU
First Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
First Respondent
P KEKANA
N.O.
Second Respondent
METCASH TRADING AFRICA (PTY)
LTD
Third Respondent
BSC TECHNOLOGIES (PTY) LTD
T/A STAX FOURWAYS
Fourth Respondent
Heard
:
22 October 2015
Delivered
:
26 January 2016
Summary:
(Review – employee found not guilty –
reinstatement not ordered – conclusion not unreasonable on the
evidence
before the arbitrator, despite his findings on the charges)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is a review of an arbitration award in
which the arbitrator found that Mr S Tsoku’s (‘the
applicant ‘) dismissal
was procedurally fair but substantively
unfair and awarded him eight months’ remuneration as
compensation. The applicant
believes he should have been reinstated.
Although the employer did not agree with the arbitrator’s
finding that he was not
guilty of the charges against him, the
employer did not attempt to set aside these findings by launching a
cross review.
[2]
The original employer was the third
respondent, but the business in which the applicant worked was
subsequently sold to the fourth
respondent. The fourth respondent did
not oppose the review application, but the third respondent did.
[3]
The applicant was originally dismissed on
22 February 2007 after being found guilty on the following charges:
“
1.
Victimisation in that 1 February 2000 and 7U victimised and harassed
the female employees in front of customers and staff.
And/or
2.
Incompatibility in that you are failing to work in harmony with
fellow employees and to act in line with the culture of the
organisation.
And/or
3.
Insolence in that you acted offensively, contemptuously and in an
insulting manner towards fellow employees in the period between
the
first and third of February 2007.”
[4]
The reason for the long period of time
between the applicant’s dismissal and this review application
is that the third respondent
had applied to review the previous
arbitration award in terms of which the applicant had been
reinstated. In the absence of a complete
record the matter was
remitted back for a fresh hearing before the second respondent whose
award was handed down on 7 September
2010. On 9 October 2013, the
applicant launched an application to join the fourth respondent to
these proceedings on the basis
that the business of the third
respondent had been transferred to it under section 197 of the Labour
Relations Act 66 of 1995 (‘the
LRA’). Initially, the
third respondent gave notice of its intention to oppose this
application but subsequently withdrew
its opposition to the joinder
and did not dispute the allegation that the business in which the
applicant had been employed had
been transferred to the fourth
respondent.
[5]
The fourth respondent was represented by
attorneys but also did not oppose the joinder application and the
fourth respondent’s
attorneys of record withdrew on 05 October,
a couple of weeks before the matter was heard on 22 October 2015. No
representative
appeared for the fourth respondent when the matter was
heard.
The
joinder application
[6]
On the basis of the founding affidavit,
which is uncontested, it appears that the fourth respondent ought to
be joined in the matter
as the successor in title to the business of
the third respondent for the purposes of section 197 of the LRA and
the award was
enforceable against it. Accordingly, the joinder of the
fourth respondent is appropriate.
The
review application
The
award
[7]
The arbitrator held that the first and
third charges related to alleged victimisation and insolence directed
at female employees
and considered three incidents which were the
basis of the charges. In respect of the first incident in which he
had implied that
an employee was a management spy, the arbitrator
found that it had been accepted as a joke and his apology had been
accepted by
the employee which settled that complaint. In another
incident in which it was alleged that he had not assembled a pedestal
fan
for a customer, the arbitrator found on the probabilities that
the incident never took place. In another incident in which he had
threatened to Lodge a grievance against an employee because she had
told him to put a smile on his face, but had not done so, whereas
the
employee had lodged her own grievance against him for being
threatening when she approached a customer he was not servicing,
the
arbitrator found that he had not contravened any rule. In relation to
the second charge of incompatibility, the arbitrator
found that the
employee was not given an opportunity to respond to the allegations
of incompatibility or to remedy the alleged
disharmony he had caused
and therefore found that the applicant was not incompatible. In light
of these conclusions the arbitrator
found that the applicant’s
dismissal was substantively unfair.
[8]
However, when it came to the appropriate
remedy, the arbitrator stated:
“
The
circumstances surrounding the employee’s dismissal are such
that it continued relationship would be intolerable. I have
thus
ordered compensation.”
Grounds
of review
[9]
The contrast between the arbitrator’s
findings that the applicant was not guilty of the misconduct he was
charged with, and
his conclusion that it would be intolerable to
reinstate him is very difficult to reconcile. This is particularly so
in the light
of his finding that the charge of incompatibility was
not proven. Perhaps the explanation lies in the fact that the
arbitrator
only concluded that the applicant was not incompatible
because the applicant was not given an opportunity to deal with his
incompatibility.
The arbitrator did not reach his conclusion because
of insufficient evidence of the applicant’s incompatibility. In
other
words, the arbitrator appeared to have made a finding on the
substance of the charge of incompatibility based on evidence of
procedural
defects in dealing with incompatibility.
[10]
The applicant argues that there was no
evidence led by the employer, nor any other evidence, to suggest that
a continued employment
relationship would be intolerable and
therefore no basis was laid for making any other order than an order
of reinstatement.
[11]
As the respondents have not sought to cross
review the arbitrator’s findings on the charges themselves, the
court must accept
those findings as unchallenged, however flawed they
may be, and confine itself to consideration of the question whether
the conclusion
that a continued employment relationship would have
been intolerable was a feasible one.
[12]
In view of the nature of the review test
based on rationality, the court may have regard to the arbitrator’s
reasoning but
ultimately must decide whether the outcome is justified
on the evidence that was before the arbitrator. In the latest
iteration
of the test of review relating to an arbitrator’s
factual findings, the LAC has stated:
“
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry.
In
the final analysis, it will depend on the materiality of the error or
irregularity and its relation to the result. Whether the
irregularity
or error is material must be assessed and determined with reference
to the distorting effect it may or may not have
had upon the
arbitrator’s conception of the inquiry, the delimitation of the
issues to be determined and the ultimate outcome.
If
but for an error or irregularity a different outcome would have
resulted, it will
ex
hypothesi
be
material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable
result. The reviewing judge must then have regard to the general
nature of the decision in issue; the range of relevant
factors
informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA
.
Provided the right question was asked and answered by the arbitrator,
a wrong answer will not necessarily be unreasonable. By
the same
token, an irregularity or error material to the determination of the
dispute may constitute a misconception of the nature
of the enquiry
so as to lead to no fair trial of the issues, with the result that
the award may be set aside on that ground alone.
The arbitrator
however must be shown to have diverted from the correct path in the
conduct of the arbitration and as a result failed
to address the
question raised for determination.”
[1]
(emphasis
added – footnotes omitted).
[13]
In this instance, the applicant essentially
alleges that the arbitrator’s material error was to reach a
conclusion for which
no evidentiary basis was laid, namely, that it
would be intolerable for the applicant to return to work. The issue
then was whether,
irrespective of the arbitrator’s own
conclusions in relation to the charges against the applicant, this
contention is valid
in the light of the evidence before him. In
evaluating the evidence before the arbitrator for this purpose, the
essential issue
is whether there was sufficient evidence before him
to reach that conclusion.
[14]
If one has regard to the record, though
important testimony of Ms M Hadebe is incompletely captured, what
emerges is that that there
was considerable evidence that -
14.1
The applicant regularly got into arguments
with other staff, arising more than once from his aggressiveness in
trying to ensure
he obtained a customer commission;
14.2
The applicant had a poor disciplinary
record including
inter alia
warnings
for physical and verbal abuse, disreputable behaviour and causing
disharmony in the store, and gross insubordination.
14.3
The applicant could not work in harmony
with other employees;
14.4
He was subject to swings in mood when he
could become very aggressive;
14.5
He caused at least two female staff members
to cry because of his comments about them;
14.6
At least two of the company witnesses
expressed their reluctance to work with him again.
[15]
The evidence mentioned emerged despite
gruelling cross-examination of management witnesses three years after
the incidents which
led to his dismissal. For the purposes of the
review it is not necessary for me to determine whether on a balance
of probabilities
I would have reached the conclusions suggested by
the evidence in paragraph 14.2. It is sufficient that it would not
have been
unreasonable for the arbitrator to have reached the
conclusion that it would be intolerable to reinstate the applicant in
the sense
that it would not have been an untenable conclusion to
arrive at on the evidence notwithstanding some contradictions in the
witnesses’
testimony on points of detail. It is enough that the
conclusion reached by the arbitrator it is one feasible
interpretation of
the evidence.
[16]
In the circumstances, despite his own lack
of explicit reasoning on the appropriate remedy, and despite the
flaws in his findings
of guilt, I cannot say that his decision not to
reinstate the applicant was one that no reasonable arbitrator could
have taken
considering the nature of the question to be decided and
the competing interests affected by it. If anything, the applicant
was
fortunate that the arbitrator made questionable findings on the
charges against him, which at least gave him a measure of
compensation.
Order
[17]
In light of the above,
17.1
the fourth respondent is joined as a
respondent in the application;.
17.2
the review application is dismissed, and
17.3
no order is made as to costs.
________________
_______
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
P Ngoato of SACCAWU
THIRD RESPONDENT:
D O Pretorius of Fluxmans Inc.
FOURTH RESPONDENT:
No appearance
[1]
Head of the Department
of Education v Mofokeng and others
[2015] 1 BLLR 50
(LAC)
at 60-1, para[33].