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[2016] ZALCJHB 466
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Khamali v Commission for Conciliation, Mediation and Arbitration and Others (JR915/13) [2016] ZALCJHB 466 (1 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no JR 915/13
In
the matter between
ABEDNEGO
PENS
KHAMALI
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
NINA
SIELE
N.O.
Second
Respondent
NORTH
WEST UNIVERSITY (POTCH)
Third
Respondent
Heard:
27 January 2016
Delivered:
1 February 2016
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent, to whom I shall refer as
‘the
commissioner’. In her award, the commissioner found that the
applicant’s dismissal by the third respondent
was substantively
and procedurally fair.
Factual
background
[2]
The background facts are recorded in the award under review. For
present purposes, it is sufficient to note that the applicant
was
employed in the protection services department as a security officer
on the Potchefstroom campus of the third respondent.
The
applicant was dismissed consequent on an incident in which a number
of the third respondent’s employees were dismissed
following an
act of misconduct committed by them after certain complaints had been
lodged by members of staff of the protection
services department. The
charges brought against the applicant in particular were that he had
conducted himself in a manner that
negatively affected the integrity,
good name and public image of the third respondent and that he had
committed an act which involved
an element of dishonesty or
misappropriation which could cause detriment to the University. The
first charge flows from events
between 1 and 6 February 2012 when it
is alleged that the applicant, with other employees, accused other
employees, members of
SAPTU, of being racist, in a manner that was
aggressive and resulted in certain foreign students not wishing to
enter the officers
concerned. The second charge relates to the basis
of the accusations themselves, which the third respondent alleged to
be false
and which had caused it to conduct a commission of enquiry,
the result of which was that none of the allegations were
substantiated.
The enquiry concerned was conducted by advocate P
Roopa, and completed on 12 June 2012.
[3]
The applicant was found guilty on both charges, and as I have
indicated, was dismissed on 22 November 2012.
The
award.
[4]
In her award, the commissioner summarised the evidence of the four
witnesses who testified on behalf of third respondent. In
essence,
the case against the applicant was that he was part of a group of
employees who had entered the SAPTU office shouting
and behaving in
an aggressive manner. The conduct of the employees were such that
international students and persons concerned
was the hosting of
international students were shocked at the behaviour that they’d
witnessed and felt intimidated. The second
witness for the third
respondent, a Ms Van der Spoel, is recorded as having testified that
‘she had never been so intimidated
and scared in her entire
life.’ The applicant’s case, in essence, was that
he was not a party to the and really
behaviour concerned – he
had a grievance and related to that raised by other employees in the
group and found himself in
the wrong place at the wrong time.
[5]
The commissioner correctly identified that she was faced with two
mutually destructive versions and that she was required, in
weighing
up the two versions, to consider the demeanour of the witnesses, the
consistency or inconsistency of the versions, and
the probability of
each version .
[6]
In her award, the commissioner concludes the following:
20.
Mr Wissing summarised the evidence of the witnesses presented by the
respondent and submitted
that they were consistent and credible. He
said that it was no coincidence that the first two witnesses
testified confirmed
to have seen the applicant with the group at the
stage when the meeting got out of hand. At all times the applicant
was present
and displayed unruly behaviour during the meeting. At no
stage did the applicant make an attempt to keep order and warn his
colleague
not to raise their voices to such an extent that they
instilled a sense of fear in their colleagues.
21.
Mr Abednego Pen Khamali, submitted that the testimony presented
by the respondent’s
witnesses were a fabrication of lies in
that he was charged for being present in the meeting of SAPTU. He
believed that he was
set up in that he never participated in the act
of intimidation and the unbecoming behaviour that were displayed by
the group of
employees in the SAPTU boardroom during the meeting. He
said that he was late and when he arrived the meeting was already in
disarray.
I found the statement to be untrue and riddled with
inconsistency as the applicant failed to put it to the respondent’s
witnesses
and thus failed to challenge the respondent’s
evidence that he was part of the group.
22.
The applicant did not advance any explanation as to why he failed to
distance himself from
the unruly behaviour of the other employees.
The applicant’s testimony that he visited the SAPTU’s
offices to raise
his long outstanding grievances and excuse concocted
as a defence in order to disassociate himself from the actions of his
colleagues.
It is not a coincidence that all the employees were
employed at the protection unit.
23.
The applicant could not give a consistent account of his failure to
ensure the safety of
personnel on the campus as part of his duties as
a protection officer. It is trite law that the relationship between
employer and
employee is one of trust and confidence. Also as per the
common law, conduct that is inconsistent with duty of trust warrants
a
termination of employment.
24
before found that the actions of the entire group including the
applicant affected
university negatively and brought the name of the
university into disrepute in particular that they were visitors
within the campus
who commented about the behaviour of the applicant
and his group. University took appropriate steps to discipline the
applicant
and his group.
25
As regard charge number 2 whereby the applicant is accused of having
made false and
racist remarks during the investigations. It is highly
unlikely the people of such high integrity and years of practice as
legal
gurus could falsely make such damning allegations against the
applicant. They do not derive any benefit from falsely implicating
the applicant and\or his colleagues. It is also true that Adv Roopa
could not have thumb-sucked issues said to be complaints when
he is
not within the campus. It is for this reason that I found the remarks
made by Adv Roopa was the true reflection of what the
applicant and
his group had communicated to Adv Moeleketsi and confirmed with Adv
Roopa.
26.
On the totality of the evidence, found that the applicant did commit
the misconduct which
the respondent had levelled against him. The
applicant failed to take reasonable steps to ensure that it complied
with the respondent’s
procedures by not ensuring that his
behaviour was appropriate as a protection officer.
27.
I accordingly, find that the applicant’s dismissal was
substantively fair.
[7]
The commissioner went on to find that the applicant’s dismissal
was procedurally fair. In doing so, she appealed the third
respondent’s contentions that it had attempted to conduct a
disciplinary hearing but that its efforts had been thwarted by
the
applicant and his colleagues who behaved in a disruptive and rude
manner, to the extent that the third respondent had no choice
but to
abandon the attempt to hold a disciplinary hearing. The commissioner
found that the applicant had been afforded an opportunity
to defend
the allegations made against him but that he and his colleagues had
made it impossible for the hearing to proceed.
Grounds
for review
[8]
The applicant’s grounds for review are unclear, to say the
least. Much of the applicant’s founding affidavit is
concerned
with the applicant’s disciplinary hearing, and appears to be an
appeal against the finding that he was guilty of
misconduct and ought
to be dismissed. For that reason, when the application was called, it
was stood down to allow the applicant
to reflect on his position and
take advice. To the extent that the applicant alludes to the
arbitration proceedings that are the
subject of these proceedings,
and affording the founding affidavit a generous reading, the
applicant has certain procedural complaints,
the first relating to
the pre-trial conference, and the most material relating to the
introduction into evidence of the report
compiled by Adv Roopa.
Applicable
legal principles
[9]
This court is entitled to interfere with an award made by a
commissioner if and only if the commissioner misconceived the nature
of the enquiry (and thus denied the parties a fair hearing) or
committed a reviewable irregularity which had the consequence of
an
unreasonable result. The applicant contends for the latter, on the
basis reflected above. However, the failure by an arbitrator
to
attach particular weight to evidence or attachment of weight to the
relevant evidence and the like is not in itself a basis
for review;
the resultant decision must fall outside of a band of decisions to
which reasonable decision-makers could come on the
same material (see
Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA)).
[10]
The Labour Appeal Court recently affirmed that while the failure of
an arbitrator to apply his or her mind to issues which
are material
to the determination of a case will usually be held to be an
irregularity, before the irregularity will result in
the setting
aside of the award, it must in addition reveal a misconception of the
true enquiry or result in an unreasonable outcome
(see
Head
of Dept. of Education v Mofokeng
[2015]
1 BLLR 50
(LAC), at paragraph 30). In other words, whether a decision
is unreasonable in its result ultimately requires this court to
consider
whether apart from the flawed reasons of or any irregularity
by the arbitrator, the result could still be reasonably reached in
the light of the issues and the evidence.
[11]
It bears reiterating that the above principles distinguish a right of
appeal from a right of review. This court is not entitled
to set
aside a commissioner’s decision simply because the court would
have come to a different conclusion on the same facts.
This court is
not entitled to intervene if the commissioner makes mistakes of law
or mistakes of fact. The commissioner is allowed
to be wrong. All
that the commissioner may not do is make a decision that falls
outside of the band of decisions to which reasonable
decision-makers
could come on the available material. As the Labour Appeal Court has
noted on more than one occasion, the threshold
to be met by an
applicant in a review application is set high and it is not often
that this court will interfere.
Evaluation
[12]
As I have mentioned above, the founding affidavit does not contain a
single ground for review which bears any resemblance to
the test to
be applied. The applicant does not assert that the outcome of the
arbitration proceedings, in the form of the commissioners
award, was
unreasonable nor does he articulate any specific basis on which it
might be suggested that the award is unreasonable.
For this reason
alone, the application stands to be dismissed.
[13]
Even if I were to accept the applicant’s complaints,
individually or collectively, as constituting an assertion of an
unreasonable decision on the part of the commissioner, there is no
basis on the record to reach such a conclusion. The commissioner
was,
as she recorded, faced with a material dispute of fact. The applicant
denied being part of the group that committed what were
not disputed
to be acts of serious misconduct committed during the course of the
meeting. While the applicant did not dispute that
he failed to
disassociate himself from the group in any active sense, he denied
having engaged in disruptive behaviour, contending
that he was
present to articulate his own dispute with the third respondent’s
management and in the case of the disciplinary
hearing, denying that
he was part of any misconduct.
[14]
There can be no real complaint at the manner in which the arbitration
hearing was conducted. Adv Roopa’s report was introduced.
Mr
Engels gave direct evidence refuting the allegations of racism made
against the third respondent. The record discloses that
the applicant
has given a full opportunity to present his evidence and to
cross-examine the third respondent’s witnesses.
Insofar as the
applicant in his heads of argument contends that the commissioner
‘gave a platform’ only to the third
respondent to conduct
its case at the arbitration hearing, similarly, the record does not
disclose this to be the case at all.
[15]
The applicant’s real complaint is that the commissioner
disbelieved him and on that basis, found for the third respondent.
It
is well-established that in an appeal hearing, an appeal court is
reluctant to interfere with credibility findings made by the
presiding judge or officer. In the case of the review, as the
authorities quoted above have clearly established, the process by
which the commissioner weighs the evidence and the weight attached to
or exclusion of particular evidence (whether by way of a
credibility
finding or otherwise) is not in itself a basis for review. In my
view, the factual findings made by the commissioner
are sustainable
by reference to the record and her conclusion that the applicant’s
version was less probable than that proffered
by the third respondent
is not so unreasonable that it constitutes a decision to which no
reasonable decision-maker could come.
In short, even if the applicant
had articulated clear and legitimate grounds for review, there is no
merit in the application.
[16]
Mr Wissing, who appeared on behalf of the third respondent,
charitably did not seek an order for costs.
For
the above reasons, I make the following order:
1.
The application is dismissed.
ANDRÈ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: In person
For
the Respondent: Mr. H. Wissing of Henk Wissing Inc.