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[2016] ZALCJHB 161
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Bidair Services (Pty) Ltd v Mbhele and Others (JR957/2014) [2016] ZALCJHB 161; (2016) 37 (ILJ) 1894 (LC) (27 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of
interest to other Judges
Case
no: JR 957/2014
In the
matter between:
BIDAIR
SERVICES (PTY)
LTD Applicant
and
COMMISSIONER
NOMUSA
MBHELE First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
JEFFREY
NGOAKO
MASHISHI Third
Respondent
Heard:
5 January 2016
Delivered:
27 January 2016
Summary:
Review Application – Award – Subsequent variation ruling
–principle of peremption –
whether employer loses
right to review award it has accepted and complied with –
Ellerines Furnishers (Pty) Ltd v CCMA
& others incorrectly
decided – employer loses right to review award – employer
bound to election not to challenge
award – employer does not
lose right to review subsequent variation ruling
JUDGMENT
VENTER,
AJ
Introduction
[1]
This
is an application in terms of section 145 of the Labour Relations
Act
[1]
,
as amended, ("the LRA"), for the review and setting aside
of an arbitration award ("the Award") issued
by
Commissioner Mbhele ("the Commissioner") in terms of which
she held the dismissal of the third respondent ("Mashishi")
to be substantively unfair.
[2]
In
addition to the review and setting aside of the award the applicant,
by way of an amended notice of motion dated 6 May 2015
[2]
,
also sought the review and setting aside of a variation ruling of the
Commissioner dated 9 April 2014. During argument before
court, Mr
Hutchinson who appeared for the applicant abandoned the review and
setting aside of the variation ruling of 9 April 2014
and formally
withdrew the amended prayer 2 of the notice of motion.
[3]
Due to the withdrawal
of the review application in respect of the variation ruling of 9
April 2014, the only application before
me is the review of the Award
dated 9 October 2013 as varied by the Commissioner on 9 April 2014.
Background
facts
[4]
Mashishi was employed
by the applicant in the capacity of customer services agent earning
R6,180.00 per month. Mashishi worked with
the Singapore Airlines
check-in team handling passengers.
[5]
On 27 December 2012 an
incident occurred at the workplace which resulted in Mashishi being
charged with gross negligence, failure
to comply with a lawful
instruction, behaviour which causes or may cause the company's name
to come into disrepute and breach of
company rules and regulations.
As a result of the incident, Singapore Airlines requested that
Mashishi be removed from its operations.
[6]
On 29 January 2013 a
disciplinary hearing was convened and the leading of evidence was
concluded. No outcome was issued. The outcome
and sanction of
dismissal were only issued four months later on 22 May 2013.
[7]
Pending the outcome and
chairperson's sanction, Mashishi was reallocated to work in arrivals
with no reduction to his salary. For
the period from 29 January 2013
to 22 May 2013 Mashishi continued to work at the applicant.
[8]
On being dismissed
Mashishi invoked the dispute resolution mechanisms in terms of the
LRA and referred an unfair dismissal dispute
to the Commission for
Conciliation, Mediation and Arbitration ("the CCMA"). The
arbitration was conducted on 1 October
2013 before the Commissioner.
[9]
The applicant led the
evidence of one witness, Eddie Swanepoel ("Swanepoel").
Mashishi testified and did not call any
other witnesses.
[10]
After
analysing the evidence before her the Commissioner concluded as
follows
[3]
:
'It
is evident that the applicant breached a rule. The respondent led
extensive evidence regarding the importance of breaching a
rule. It
is further evident that the applicant was on a final written warning
for gross negligence. I find that the applicant was
reasonably aware
of the rule.
Normally
the employee would be dismissed after receiving a final written
warning, in this case, it is more probable that the employment
relationship was not irretrievably broken as the respondent would not
have placed the applicant on arrivals after the disciplinary
hearing.
I find that the decision to dismiss the applicant was unfair. The
respondent did not lead any evidence that there were
no alternative
positions.'
[11]
The Commissioner,
having found the dismissal substantively unfair and accepting that
Singapore Airlines requested Mashishi's removal
from its operations
and that reinstatement into his old position was therefore not
appropriate, awarded Mashishi relief in the
form of re-employment.
[12]
The
relief is set out in the award as follows
[4]
:
'The
respondent, BidAir Services, is directed to re-employ the applicant,
Jeffrey Ngoako Mashishi, to an alternative position with
effect 01
November 2013.'
[13]
On
4 November 2013 Mashishi reported to the applicant for re-employment.
The Applicant offered Mashishi the alternative position
of baggage
handler at a salary of R3, 098.50.
[5]
Mashishi
rejected this offer on the basis that due to a back injury he is
unable to stand for long periods and lift heavy objects
[6]
.
[14]
On
11 November 2013 the applicant offered Mashishi another alternative
position of cleaner at a hourly rate of R14.45 per hour.
In the offer
letter the applicant indicated that the offer is made in line with
the Award
[7]
.
[15]
It
appears that Mashishi did not accept this offer as on 21 November
2013 Mashishi's attorney, G J Brits addressed correspondence
to the
Applicant requesting an offer of re-employment to the position of
customer services agent, alternatively a suitable alternative
position
[8]
.
[16]
The
applicant responded to the correspondence and stated as follows
[9]
:
'Kindly
take note that BidAir Services is in compliance with the CCMA award,
as it clearly instructed that Mr Mashisi is to be re-employed
in an
alternative position by the 01 November 2013. The award does not
specify re-employment as a customer service agent nor any
other
position.'
[17]
The applicant again
offered Mashishi the position of cleaner.
[18]
As
the applicant interpreted the relief awarded to Mashishi to be
re-employment into an alternative position and not re-employment
into
a customer services agent position or any other suitable position,
Mashishi launched a variation application on 23 January
2014
[10]
.
[19]
On
12 February 2014 the Commissioner issued a variation ruling
[11]
in
which she varied paragraph 32 of the Award on the basis that it was
ambiguous. The Commissioner concluded as follows
[12]
:
'It
is clear from the submissions that the applicant holds a Diploma in
travel and tourism and have numerous qualifications in the
field of
travel and tourism. I find that paragraph 32 of the award is
ambiguous as it opens the interpretation by the respondent
which
prejudices the applicant.
Paragraph
32 of the arbitration award is varied as follows:
The
respondent, BidAir Services, is directed to re-employ the applicant,
Jeffrey Ngoako Mashishi, to the position equivalent to
his
qualifications and experience with effect from 01 November 2013.'
[20]
The
matter does not end here. On 13 February 2013, obviously dissatisfied
with the variation ruling, the applicant brought a rescission
application
[13]
in
which it sought the rescission of the variation ruling on the ground
that it was issued in its absence.
[21]
The rescission
application was not supported by an affidavit and in fact consisted
only of written submissions.
[22]
The applicant states in
the written submissions that:
'The
respondent hereby respectfully submits that it had not received the
condonation application nor the variation application thereby
denying
it the opportunity to oppose said applications.'
[14]
[23]
The
applicant further submitted that it had complied with the award in
that it offered Mashishi two alternative positions.
[15]
[24]
In
the written submissions in the application for rescission the
applicant does not deal with the factor of a
bona
fide
defence to the variation application and in fact admits that the
award is vague as 'it again does not direct the respondent as
to
which specific position it should re-employ the Applicant to.'
[16]
[25]
The
Applicant further submitted that there are no suitable alternative
positions available equivalent to Mashishi's qualifications
and
experience
[17]
.
[26]
On
9 April 2014 the Commissioner issued a rescission and variation
ruling
[18]
.
[27]
It appears from the
rescission ruling that Mashishi opposed the rescission application on
the basis that it was not on affidavit
and the applicant had not set
out the grounds for rescission.
[28]
The
Commissioner after considering the parties' submissions in the
rescission application concluded as follows
[19]
:
'The
respondent submitted that the application is not in compliance with
Rule 31 of CCMA rules. Rule 31 (10) provides: "Despite
this
rule, the Commission or a commissioner may determine an application
in any manner it deems fit." I will therefore accept
the
applicant's rescission application.
In
Shoprite Checkers (Pty) Ltd Limited v CCMA & Others
(2007)
28 ILJ 2246, the Labour Appeal Court held that the applicant for
rescission should show good cause as a ground for rescission.
The
test for good cause involves two factors, namely, the explanation for
the default and whether the applicant has a prima facie
defence.
Although
there is proof that the notice of the condonation and variation
applications were served by facsimile, in
Edgars Consolidated
Stores (Pty) Ltd v Kalanda & Others
(2007) 7 BLLR 632
, the
Labour Court held at paragraph 11: "Commissioners ought to, by
now, appreciate the inherent danger of accepting transmission
slips
as conclusive proof that notification of legal proceedings has taken
place. It is therefore probable that the applicant did
not receive
the variation and condonation applications.'
[29]
The Commissioner
rescinded the variation ruling.
[30]
After rescinding the
variation ruling the Commissioner then on her own decided to vary the
award. In varying the award the Commissioner
changed the relief from
re-employment to compensation equivalent to six months remuneration.
[31]
The
Commissioner concluded as follows
[20]
:
'Paragraph
32 of the arbitration award is unclear as it does not indicate the
alternative position for the applicant. It is evident
from the
employer's rescission application that the only available position is
that of a cleaner. I believe that the applicant
would be prejudiced
to work as a cleaner as he is an experienced Customer Service Agent.
When an award of re-employment was made,
it related to re-employment
to the position equivalent to the applicant's qualifications and
experience.
In
the absence of any position equivalent to the employee's
qualifications and experience, the fourth sentence of paragraph 30 is
varied to read: Based on the substantive unfairness of the
applicant's dismissal, I am of the view that the applicant should be
compensated with six months remuneration as the applicant had two and
a half years employment service, it had been approximately
five
months from the dismissal date to the arbitration date and I have
considered that the applicant's dismissal was procedurally
fair.
Paragraph
32 of the award section is varied to read: The respondent, BidAir
Services, is directed to pay the applicant, Jeffrey
Mashishi, R40
680,00 (forty thousand six hundred and eighty rand), calculated at
R6780,00 x 6, within fourteen days of receipt
of this variation
ruling.'
[32]
The
applicant (for reasons not known to the court) was not satisfied with
the variation ruling. On 16 May 2014 the applicant launched
the
review application seeking the review and setting aside of the award
as varied by the Commissioner on 9 April 2014
[21]
.
[33]
The
grounds of review set out in the founding affidavit are that the
Commissioner applied her mind to irrelevant factors and should
not
have been influenced by the fact that Mashishi remained on duty
pending the disciplinary hearing
[22]
.
[34]
In
the supplementary affidavit the applicant amplifies its grounds of
review and submits that the Commissioner's finding was unreasonable
given the fact that Mashishi was on a final written warning
[23]
.
The applicant further requests the review and setting aside of the
variation ruling of 9 April 2014
[24]
.
[35]
In
the answering affidavit
[25]
Mashishi
raises the point that the first time the applicant became
dissatisfied with the award was when it was varied to a monetary
amount
[26]
.
Mashishi submits that the award is an award any reasonable
commissioner would have arrived at on the evidence before
him/her
[27]
.
[36]
Mashishi
further submits that the Commissioner was well within her rights to
vary the award on both occasions and to award compensation
[28]
.
Mashishi takes no issue with the variation of the relief by the
Commissioner from re-employment to compensation.
Peremption:
[37]
Peremption
is a well-known principle in our law and has been applied by this
court and the Labour Appeal Court ("the LAC")
in numerous
labour disputes
[29]
.
[38]
In
Dabner
v South African Railways & Harbours
[30]
Innes
J said that:
'The
rule with regard to peremption is well settled, and has been
enunciated on several occasions by this Court. If the conduct
of an
unsuccessful litigant is such as to point indubitably and necessarily
to the conclusion that he does not intend to attack
the judgment,
then he is held to have acquiesced in it. But the conduct relied upon
must be unequivocal and must be inconsistent
with any intention to
appeal. And the
onus
of establishing that position is upon the
party alleging it. In doubtful cases acquiescence, like waiver, must
be held non-proven.'
[39]
In
NUMSA
& others v Fast Freeze
[31]
the
LAC stated that:
'If a
party to a judgment acquiesces therein, either expressly, or by some
unequivocal act wholly inconsistent with an intention
to contest it,
his right of appeal is said to be perempted, ie he cannot thereafter
change his mind and note an appeal. Peremtion
is an example of the
well-known principle that one may not approbate and reprobate, or, to
use colloquial expressions, blow hot
or cold, or have one's cake and
eat it.'
[40]
In
NEHAWU
obo E.S. Chakela v Vaal University of Technology and others
[32]
,
this Court set out the requirements for peremption as follows:
'The
requirements of peremption in review matters can be summarized as
follows:
i.
Where a right to review exists, the
party desiring to review loses that right where he or she has
acquiesced in the arbitration
award unconditionally and without any
reservation which acquiescence may be express or implied from
conduct.
ii.
The acquiescence by conduct entails the
applicant conveying outwardly to the other party the attitude or
stance towards the award.
iii.
The conduct must be consistent with an
intention to abide by the arbitration award and inconsistent with an
intention to review
it.
iv.
The test to determine whether the
applicant has manifested an outward attitude in relation to the award
is objective and thus the
subjective state of mind or intention of
the applicant is irrelevant.
v.
The Court in considering whether the
award has been perempted will determine whether fairly construed the
conduct of the applicant
leads to the conclusion of abiding with the
award.
vi.
The onus of proving that an award has
been perempted rests with the party seeking to rely on that doctrine.
vii.
The party seeking to rely on preemption
stands to fail if more than one inference may be fairly drawn from
the conduct of the other
party. This means that the conduct relied
upon to evoke preemption has to be unequivocal.
The
basic requirement to sustain a claim of peremption entails having to
show that the acceptance of the outcome of the arbitration
award
expressly or by conduct was unequivocal. In other words the applicant
loses his or her right to challenge on review the arbitration
award
where the review application is instituted after accepting the
outcome of the ward unequivocally and without any reservation.'
[41]
In
Singh
v First National Bank and others
,
Prinsloo AJ stated that
[33]
:
'The
concept of peremption is based on the general notion that a litigant
has two elections to make: either accept or reject the
outcome of the
judgment or the arbitration award. As a general rule a party that
perempts the arbitration award would not be entitled
subsequently to
challenge that arbitration award. The basic requirement, however, to
sustain a claim of peremption entails having
to show that the
acceptance of the outcome of the arbitration award expressly or by
conduct was unequivocal.'
[42]
Applying the well-known
principles of peremption to the facts of this case, there is no doubt
in my mind that the applicant expressly
and unequivocally,
unconditionally and unreservedly acquiesced in the Award when it
offered Mashishi the alternative positions
of baggage handler and
cleaner on 4 and 11 November 2013 and again on 21 November 2013. This
conduct of the applicant was wholly
inconsistent with an intention to
challenge the Award.
[43]
When the applicant made
the offers to Mashishi it had no intention of challenging the Award,
the applicant accepted the Award, accepted
the reasoning of the
Commissioner on the merits of Mashishi's unfair dismissal claim and
accepted the relief granted by the Commissioner
in the form of
re-employment. The applicant did not only accept the relief granted
but, and on its own version, complied with it
when it offered
Mashishi the positions of baggage handler and cleaner. The
applicant's correspondence to Mashishi's attorneys makes
it clear
that the applicant itself considered the offers of the alternative
positions to be in compliance with the Award. The intention
of the
applicant was unequivocal. The applicant elected to accept the Award,
elected to comply with the Award and elected to offer
Mashishi
re-employment into alternative positions (which on its own version
was compliance). The applicant is bound to these elections.
[44]
The applicant was not
only satisfied with the Award in that it did not intend to challenge
the Commissioner's findings and the relief
awarded in terms thereof
but was also prepared to accept Mashishi back into its employment. I
agree with Mashishi that the applicant
only decided that it was not
satisfied with the Award when the Commissioner
mero
motu
changed the
relief from re-employment to compensation. In my view it was then too
late for the applicant to change its mind and
to decide that the
Commissioner's reasoning on the merits of Mashishi's dismissal was
grossly unreasonable.
[45]
It defies logic that
the applicant was happy to accept Mashishi back into its employment,
was prepared and did offer Mashishi alternative
employment and only
after doing so and after the Commissioner having varied the relief
from re-employment to compensation, decided
that the Commissioner's
conclusion that dismissal was not appropriate was grossly
unreasonable.
[46]
I find it quite
astonishing that the applicant was prepared to re-employ Mashishi (in
a far junior position and at a far lower rate
of remuneration), was
not prepared to offer Mashishi a suitable alternative (as prescribed
by section 193(1)(b) of the LRA and
which is an inherent part of the
remedy of re-employment), and was after numerous applications in the
CCMA, not prepared to make
payment to Mashishi of the compensation of
R40 680.00.
[47]
During
argument Mr Hutchinson referred me to the judgment of acting Justice
Bank in
Ellerines
Furnishers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and others
[34]
where
it was held that:
'Simply
put, once a variation ruling is handed down by a Commissioner the
entire arbitration award then becomes open to review by
any party
affected by such variation on any of the recognised grounds of
review, despite an earlier possible peremption of such
right of
review on the part of an affected party.'
[48]
In the
Ellerines
case the commissioner found the retrenchment of the employee to have
been procedurally unfair and awarded the employee five months
compensation calculated on the employee's net pay. The employer paid
the employee the compensation awarded. The employee, however,
sought
variation of the compensation awarded to him on the basis that the
compensation should have been calculated on his gross
remuneration.
The Commissioner varied the amount and issued a variation ruling. The
employer then decided to challenge the commissioner's
finding on the
procedural fairness of the dismissal and the variation ruling.
[49]
Bank AJ's reasoning for
concluding as he did is as follows:
'
In
my view, once it can be said that a right of review exists such right
cannot be circumscribed by the peremption of a portion
of that right
or that only certain grounds of review may be raised but not others.
Not only would this give rise to the possibility
raised by Mr
Makapane on behalf of Ellerines but I find this to be an outcome that
pushes the bounds of what may be termed the
overriding objective of
the LRA: the fair, just and expeditious resolution of labour
disputes. It would also constitute a fettering
of the discretion of
the Court to review and set aside any award or ruling that falls
within the grounds of review set out in the
LRA as amplified, refined
and evolved over almost twenty years of jurisprudence in this and
other Courts under the LRA
[35]
.'
[50]
I am in respectful
disagreement with Bank AJ. Where an affected party unequivocally
expresses an intention not to challenge an award
and in expressing
this intention complies or offers compliance with the award, such
affected party loses its right to review the
award. The affected
party is bound by its election not to challenge the award. Under
these circumstances no right to review exists,
it is lost when the
affected party unequivocally and unreservedly offers to comply with
the award.
[51]
I further respectfully
disagree with Bank AJ that in not permitting an affected party, who
has acquiesced, to review an award that
has been subsequently varied,
the discretion of this court to review an award that is open to
review in terms of section 145 of
the LRA will be fettered. This
court should not be adjudicating review applications of arbitration
awards which have been accepted
by the parties and where compliance
has either occurred or has been tendered.
[52]
In
my view Bank AJ erred in that he failed to consider the effect of the
affected party's election to accept the award and that
the
consequence of that election is that the affected party loses its
right to challenge the award. Bank AJ also failed to consider
that
the grounds for a variation of an award are limited to a variation to
the extent there is an ambiguity or an obvious error
or omission in
the award
[36]
.
In my view a variation of an ambiguity or obvious error or omission
in an award by the commissioner should not open up the entire
award
to review where the affected party has elected to accept the award,
even if the acceptance of the award came before the variation.
[53]
In contrast to Bank AJ
I am of the view that to allow an affected party to challenge an
award that is perempted would be contrary
to the scheme and
objectives of the LRA being the fair, just, expeditious and effective
resolution of labour disputes and would
be contrary to fair labour
practices.
[54]
If an affected party is
permitted to challenge an award which it has accepted simply because
a subsequent variation ruling was issued
the affected party is given
an opportunity to change its mind, to have a second bite at the
cherry, to have its cake and eat it,
to blow hot and cold and to
approbate and reprobate. This is inconsistent with the
well-established principle of peremption and
is not in the interests
of fair labour practices.
[55]
It would also create
uncertainty for the other party should an affected party be permitted
to challenge an award it has accepted
and has complied with merely
because of a subsequent variation ruling being issued which ruling
either only corrects an obvious
error or omission or clears up an
ambiguity in the award.
[56]
I
use the following example to illustrate how untenable this situation
and approach is and how it could lead to absurdities. An
employee is
reinstated in terms of an award. The commissioner grants the employee
back pay calculated at the employee's net remuneration.
The employer
complies with the award and reinstates the employee and pays the
employee the back pay as incorrectly calculated by
the commissioner.
The employee applies for variation of the calculation of the back pay
to a calculation on his gross remuneration
on the basis of an obvious
error. The calculation of the back pay is varied by the commissioner
in a variation ruling. The employer
thereafter launches a review
application and challenges the award. In terms of the
Ellerines
judgment
[37]
the
employer will be entitled to review the award granting reinstatement
despite the fact that it has complied with the award and
the employee
has been reinstated. If the employer is successful in the review
application and the award is set aside what would
happen to the
employee who was reinstated in compliance with an award that no
longer exists? It could lead to the absurd consequence
of a dismissal
dispute being remitted back to the CCMA for rehearing in
circumstances where the employee is employed by the employer.
If the
court in the review application was to substitute the award with an
order that the dismissal was fair what would happen
to the employee
who is working at the employer but who, as a consequence of the court
order, has been fairly dismissed?
[57]
This approach could
never be consistent with the objectives of the LRA and the right to
fair labour practices.
[58]
Once a party has
accepted an award and in exercising its election complies or offers
to comply with the award, the affected party
loses the right to
review the award.
[59]
This does not mean that
the affected party loses its right to oppose any subsequent variation
application or to challenge any subsequent
variation ruling varying
the award. The affected party's right to review any subsequent
variation ruling is not circumscribed.
If the variation ruling is
unreasonable or the commissioner, in issuing the variation ruling,
committed misconduct, a gross irregularity
or exceeded his/her
powers, the affected party will have the right to challenge such
variation ruling. The right to challenge such
variation ruling is not
lost; the right to challenge the perempted award is lost.
[60]
The Award was perempted
when the applicant, by offering compliance, expressed the intention
not to challenge it.
[61]
The applicant did not
lose its right to challenge the variation ruling of 12 February 2013
if it felt this ruling to be unreasonable
and did not lose its right
to challenge the variation ruling of 9 April 2014 if it felt that the
commissioner exceeded her powers
in amending the relief.
[62]
Instead of challenging
the variation ruling of 9 April 2014 the applicant launched a review
application against the Award and the
commissioner's finding of
substantive unfairness, a finding it accepted.
[63]
The applicant
acquiesced in the Award and the review application should be
dismissed on this ground alone.
Merits
of Review Application
[64]
However, and if I am
incorrect in the application of the principles of peremption I am of
the view that the review application is
without merit. The Award is
an award any reasonable commissioner would or could have arrived at
on the evidence before him/her.
[65]
Swanepoel failed to
lead any evidence on the intolerability of the continued employment
relationship and the irretrievable breakdown
in the trust
relationship between the applicant and Mashishi. To the contrary the
evidence before the Commissioner was that despite
Mashishi's
misconduct he continued to work at the applicant for the period from
the incident on 27 December 2012 to his dismissal
on 23 May 2013.
This was a period of 5 months during which the applicant had no issue
with Mashishi working at its operations,
despite his misconduct.
[66]
In
absence of any evidence on the intolerability of the continued
employment relationship the Commissioner's finding that the
relationship
was not intolerable was a reasonable conclusion. The
evidence of Swanepoel that Mashishi was "apprehensive",
"not
willing to assist" and was "rebellious"
[38]
during
the months he worked at arrivals is not evidence of intolerability.
[67]
Mr Hutchinson argued
that the Commissioner should not have considered the appropriateness
of the sanction as the fact that the applicant
was on a final written
warning was sufficient for her to conclude that dismissal was
appropriate. Mr Hutchison further argued that
re-employment was not
the appropriate remedy for a misconduct dismissal.
[68]
I do not agree with Mr
Hutchinson. After finding that Mashishi was guilty of the misconduct
the Commissioner was obliged to consider
the appropriateness of the
sanction of dismissal.
[69]
As
held by Basson J in
Jansen
v CCMA & others
[39]
:
'From
the aforegoing it is apparent that the consideration of an
appropriate sanction constitutes an important yet separate component
of the arbitration process. This was confirmed by the Labour Court in
Theewaterskloof Municipality v SALGBC (Western Cape Division) and
Others
where the Court held as follows:
'….In
order to maintain the necessary distinction, some assistance may be
drawn from the perspective that
a
typical arbitration comprises essentially two phases
.
The first is the receipt and evaluation of evidence in order to make
factual findings. That phase is governed by the ordinary
rules of
evidence and procedure and no value judgment is involved.
If
the employee’s guilt is established, the second phase arises,
being the identification and weighing of the factors relevant
to the
determination of sanction.
Various
components must be placed in the scales: an objective analysis of the
particular facts of the case; adequate regard to the
applicable
statutory policy and framework; and adequate regard to the pertinent
juris prudence as developed by the courts.
Only
then can a value judgment, properly so called as a comparative
balancing of competing factors, be made by the commissioner,
producing as an end result an impartial answer to the central
question whether or not the dismissal was fair
’.
Furthermore,
it is also a trite principle that the mere fact that a commissioner
finds an employee guilty of misconduct does not
as a matter of course
entitle an employer to dismiss. See in this regard
Ikwezi
Municipality v South African Local Government and Others
where
the Court held as follows:
'The
sole issue on review, as articulated by Mr Grogan, is whether this
Court should interfere with the arbitrator's finding that
dismissal
was an appropriate sanction in the circumstances. Mr Wade submitted
that this refers to a pure penalty review for unreasonableness,
which
is not the basis of its attack. In this vein, Mr Grogan submitted
that the gravity of the misconduct is only one of the many
factors to
be taken into account by the arbitrator as set out by the
Constitutional Court in
Sidumo
(supra
).
Seen in context the publication of the letter did not constitute
misconduct of such gravity so as to automatically warrant dismissal.
It reflects the kind of criticism that appears in the media daily.
In
any event, there is no misconduct, however serious, that
automatically licences an employer to dismiss an employee. The LAC
confirmed in
Toyota
South Africa Motors (Pty) Ltd v Radebe and Others
that
mitigating factors must always be considered
.
This
would mean that even where an employee is found guilty of serious
misconduct, on consideration of
all
the facts dismissal may not be determined to be an appropriate
sanction
.
The applicant's submission that there is in essence a contradiction
between the finding that the employee is guilty of misconduct
and the
remedy of reinstatement cannot therefore be sustained.
The
ultimate test is whether the arbitrator applied his mind to
determining whether the sanction is appropriate in the circumstances
having
regard to, among other factors, the misconduct committed‟.
'
[70]
In
City
of Cape Town v SALEBC & others
[40]
Basson
J held that:
'In
respect of sanction it is accepted that it is not the task of the
commissioner or the arbitrator to merely rubberstamp the sanction
imposed by the employer following a disciplinary hearing. The
commissioner or arbitrator should apply his or her own sense of
fairness in respect of whether or not dismissal is an appropriate
sanction. Although it is the employer that dismisses, it is the
commissioner who must decide whether or not the dismissal was fair.'
[71]
The Commissioner
considered the appropriate sanction and came to the reasonable
conclusion that in absence of evidence on intolerability
and
considering that Mashishi worked at the applicant for a 5 month
period after the incident, continued employment was not intolerable
and dismissal was too harsh. This conclusion of the Commissioner is
reasonable and is not open to review.
Costs
[72]
This matter involves
arbitration proceedings, an award, a variation application, a
variation ruling, a rescission application, a
rescission ruling and
variation ruling and an opposed review application brought largely by
the applicant in an effort not to re-employ
Mashishi into a suitable
alternative position and not to make payment to Mashishi of the
compensation awarded in terms of the variation
ruling of 9 April
2014.
[73]
The litigation in this
matter was in my view unnecessary and disproportionate to the
compensation ultimately awarded to Mashishi.
[74]
The applicant's conduct
leaves little to be desired. The offer of the positions of baggage
handler and cleaner at less than half
the remuneration Mashishi was
earning at time of dismissal was unreasonable and not done in good
faith. The applicant's rescission
application was unnecessary as the
Commissioner was simply clarifying an ambiguity in the award. The
Commissioner was simply giving
effect to the provisions of section
193(1)(b) of the LRA.
[75]
The only review
application that had merit was the review of the variation ruling of
9 April 2014 as the Commissioner had no power
or competence to vary
the relief from re-employment to compensation. However at an
extremely late stage during the hearing of the
review application the
applicant withdrew this relief and I am not able to set it aside.
[76]
The review application
has no merit. The Award was perempted by the applicant and under
these circumstances I am of the view that
it is appropriate that
costs be awarded to Mashishi who has been forced by the applicant's
conduct and litigious approach to oppose
numerous processes before
two tribunals in an attempt to defend the Award and get
the relief awarded to him.
[77]
Applying the principles
of an award of attorney and own client costs I am satisfied that,
considering the facts of this case, that
an attorney and own client
costs order is just.
[78]
In
Sentrachem
Ltd v Prinsloo
[41]
,
the
Supreme Court of Appeal held as follows:
'On
appeal, the Court reiterated that an award of attorney and own client
costs had to be seen as an attempt by the Court to go
one step
further than an ordinary order of costs between attorney and client
so as to ensure that the successful party was indemnified
with regard
to all reasonable costs of litigation.'
Order:
1.
The review application
is dismissed.
2.
The applicant is to pay
the respondent's costs on an attorney and own client scale.
_________________
Venter,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
applicant:
Advocate W Hutchinson
Instructed
by:
Moodie and Roberts
For the
third respondent: Advocate Olivier
Instructed
by:
Britz Attorneys
[1]
Act
66 of 1995.
[2]
Pages
1 - 4 of volume 3 of the record.
[3]
Page 17
paras 26 and 27 of volume 2 of the record.
[4]
Page
15 of volume 2 of the record, para 32.
[5]
Page
47 of volume 2 of the record.
[6]
Pages
48 and 49 of volume 2 of the record.
[7]
Page
46 of volume 2 of the record.
The
offer states "
As
per the conditions of the CCMA award handed down by Commissioner
Nomusa Mbhele dated 09 October 2013 in which it was ordered
that the
Company offer you an alternative position within the organisation.
"
[8]
Page
44 of volume 2 of the record.
[9]
Page
41 of volume 2 of the record.
[10]
Pages
80 - 92 of volume 2 of record.
[11]
Pages
18 - 20 of volume 2 of the record.
[12]
Paras
15, 16 and 17.
[13]
Pages
39 - 43 of volume 2 of the record.
[14]
Para
2 page 39 of volume 2 of the record.
[15]
Para
5 of the application states as follows "The respondent
respectfully submits that the it had complied with said
award
in that it offered the applicant two alternative positions which
were available at the time, the applicant subsequently
refused said
offers".
[16]
Para
13 page 40 of volume 2 of the record.
[17]
Page
40 para 13 of volume 2 of the record.
[18]
Pages
68 - 71 of volume 2 of the record.
[19]
Pages
69 and 70 paras 7, 8, 9 of volume II of the record.
[20]
Page
70 paras 12 - 14 of volume II of the record.
[21]
Pages
1 - 4 of volume 1 of the record.
[22]
Pages
5 - 11 of volume 1 of the record.
[23]
Pages
31 - 33 of volume1 of the record.
[24]
Page
33 para 7 of volume1 of the record.
[25]
Page
21 of volume 3 of the record.
[26]
Page
26 paras 8.3 and 8.4, page 27 para 9.3 of volume 3 of the record.
[27]
Page
30 para 13.11 of volume 1 of the record.
[28]
Page
30 para 13.12 of volume 1 of the record.
[29]
See
Doorgesh v Commission for Conciliation, Mediation and Arbitration
and others, unreported judgment, case number CA4/2014 (dated
6
November 2015), National Union of Metal workers of SA & others v
Fast Freeze (1992), Singh v FNB & others unreported
judgment,
case number D397/2011 (dated 9 September 2014) and Jusayo v Mudau NO
& others (2008) 29 ILJ 2953 (LC).
[30]
1920
AD 583
at para 594.
[31]
(1992)
13 ILJ 963 (LAC) at page 969.
[32]
Para
9, Unreported judgment, case number JR2456/2008 (dated 9 October
2014).
[33]
Unreported
judgment, case number D397/2011 (9 September 2014) at
para
30.
[34]
(2015)
36 ILJ 215 (LC) at
para
19.
[35]
At
para 18.
[36]
Section
144 of the LRA provides that any commissioner who has issued an
arbitration award or ruling, or any other commissioner
appointed by
the director for that purpose, may on that commissioner's own accord
or, on the application of any affected party,
vary or rescind an
arbitration award or ruling, erroneously sought or made in the
absence of any party affected by that award;
in which there is an
ambiguity, or an obvious error or omission, but only to the extent
of that ambiguity, error or omission;
or granted as a result of a
mistake common to the parties to the proceedings.
[37]
Supra.
[38]
Page
6 para 13 of volume 2 of the record.
[39]
Unreported
judgment, case number JR297/2009 (20 March 2014)
at
paras 7 and 8.
[40]
(2011)
32 ILJ 1333 (LC) at
para
15.
[41]
1997
(2) SA 1
(SCA).