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[2016] ZALCJHB 93
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Airchefs (Pty) Ltd v Mphahlele and Others (JR2705/13) [2016] ZALCJHB 93 (3 March 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No:
JR 2705/13
In
the matter between:
AIRCHEFS
(PTY)
LTD
Applicant
and
MARIA
JULIA
MPHAHLELE
First Respondent
NTEMBISO
QHWESHA
N.O
(ARBITRATOR)
Second Respondent
BARGAINING
COUNCIL FOR THE RESTAURANT
CATERING
AND ALLIED
TRADES
Third Respondent
Heard:
29 February 2016
Delivered:
3 March 2016
JUDGMENT
MADDERN,
AJ
Nature
of Application
[1]
This is an application in terms of section 145 of the Labour
Relations Act 66 of 1995 (“the LRA”) to review and
set
aside the arbitration award issued by the Second Respondent on 4
November 2013 under Case No. DSP/ARB 10/02/11 in terms of
which the
Second Respondent (“the Commissioner”) found the
dismissal of the First Respondent (“the Employee”)
procedurally and substantively unfair and in terms of which
reinstatement and 12 months’ compensation was ordered.
Background
Facts
[2]
The employee had been employed by the Applicant for 23 years and, at
the time of her dismissal on 29 September 2009, was employed
as a
station attendant. On 15 September 2009, the employee was given
notice of a disciplinary hearing in terms of which the employee
was
advised that two transgressions would be investigated and were framed
as follows :
‘
1.
Failure to obey the reasonable instruction: in that on 5
th
of August 2009 and 12
th
of August 2009 you were called by your manager Miriam Selepe to
report to the office about your poor attendance, of which you
dismally refused in front of your co-workers. On the 4
th
of September 2009 at about 10h00 a.m. you were called to report to
the Logistics Manager’s office about your poor attendance
of
which you dismally refused.
2.
Insubordination: in that on 21
st
of July 2009 you were called to your Manager’s office where you
were needed to answer on not adhering to the agreement that
you and
your manager entered into in trying to help you attend ABET, of which
you storm out of the office.’
[1]
[3]
Following the internal disciplinary process, the First Respondent was
then dismissed. She failed to attend an initial scheduling
of the
disciplinary hearing and on the second occasion, she likewise failed
to attend and the hearing proceeded
in absentia
.
[4]
The employee referred a dispute to the Third Respondent where the
dispute languished for a period of approximately three years.
The
Commissioner issued an arbitration award on 4 November 2013.
Grounds
of Review
[5]
The Applicant contends that the Commissioner’s award is
reviewable on the basis that the Commissioner failed to apply
his
mind, showed extreme bias towards the employee, failed to apply legal
principles, drew conclusions on facts not before him
and failed to
apply his mind as a reasonable decision maker and exceeded his
powers, and in so doing reached a decision that no
reasonable
decision maker could have come to.
[6]
On the
ipse dixit
of the Applicant, the crux of the
Applicant’s case is that the employee’s version is
improbable and no reasonable decision
maker could have accepted such
version in light of the evidence advanced by the Applicant’s
two witnesses.
[7]
In response, the employee broadly contends that the Applicant failed
to establish the fairness of the dismissal, substantively,
on a
balance of probabilities and that the Second Respondent’s award
is not reviewable.
Evaluation
[8]
In relation to the allegations
of misconduct, the Applicant called two witnesses, Sifiso Ngwenya,
the Logistics Manager (hereinafter
“Ngwenya”) and Miriam
Selepe the ESU Manager (hereinafter “Selepe”). Somewhat,
curiously, Ngwenya gave
no evidence in chief in relation to the
instruction issued to the employee on 4 September 2009 to report to
his office. The issue
was, however, dealt with in cross examination
at which time Ngwenya indicated that the Applicant had refused to
come to his office
as she was ‘not an office lady’.
[2]
[9]
In relation to Selepe, she gave
evidence in respect of the second instance referred to in the first
transgression
[3]
and in relation to the second transgression relating to
insubordination on 21 July 2009. In relation to the allegations that
the
Employee failed to obey a reasonable instruction to report to
Selepe’s office on 5 August and 12 August 2009, Selepe’s
evidence was that on 5 August 2009, she called the employee to her
office. Selepe contended, at the disciplinary enquiry, that
there was
a second incident on 21 August 2009 and she continued in this vein,
in her evidence before the First Respondent, until
she was alerted to
the fact that the charge made reference to 12 August 2009 at which
time, she then indicated that the minutes
of the disciplinary enquiry
had been incorrectly recorded.
[4]
Selepe further indicated that in respect of the dates she did not
recall the dates “very well”.
[5]
[10]
This was not the only instance
where Selepe’s evidence is contradictory. She also indicated
that the intention of calling
the employee to her office on 21 July
2009 was to ‘discuss her timekeeping which was very poor …’
[6]
In contrast, details of the transgression outlined in the notice of
disciplinary hearing reflects that the intention of the meeting
was
‘to answer on not adhering to the agreement that you and your
manager entered into in trying to help you attend ABET’.
[11]
The employee’s version,
in summary, amounts to an admission that she was called to Selepe’s
office on 5 August 2009
and it is her contention that she did in fact
attend at Selepe’s office to sign documentation pertaining to
sick leave. She
denies knowledge of any other occasion on which she
was called either to Selepe or Ngwenya’s offices.
[7]
[12]
The Commissioner was required
to deal with the mutually destructive and conflicting versions. The
Applicant introduced no corroboration
in relation to any of the
charges. The Employee introduced evidence in relation to her
attendance and, in this regard, produced
schedules for periods 3
August to 9 August 2009,
[8]
10 August to 16 August 2009
[9]
and 17 August to 23 August 2009
[10]
.
The employee dealt with the work schedules in her evidence in the
context of the second alleged transgression on 21 July 2009.
Selepe
contended, in the context of the ABET issue, that the employee had
absented herself on Mondays contrary to the agreement
reached between
the employee and Selepe. Considerable time at the arbitration was
spent on the nature of the ABET agreement in
relation to time off.
None of this is relevant other than in relation to the stated purpose
of the meeting for 21 July 2009. In
other words, was it the
attendance issue in relation to the ABET agreement which prompted
Selepe to request the employee to attend
at her office and in respect
of which the employee then “stormed out”. The employee’s
evidence is contradictory
in this regard. It was put to Selepe, on
behalf of the employee, that the employee will indicate that she did
attend the meeting
in Selepe’s office to discuss ABET.
[11]
When the employee testified, however, she indicated that she‘did
not know anything about 21 July’
.
[12]
In essence, the employee,
in her evidence, indicated that she only knew about a request to
attend Selepe’s office on 5 August
2009 and that she had indeed
acceded to that request.
[13]
In considering an award on review, the appropriate approach for this
Court to adopt is one which involves:
‘…
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 evidence.’
[13]
[14]
In dealing with the evaluation of the Commissioner’s award “in
the round” the Commissioner’s fundamental
conclusion was
that the Applicant had failed to discharge the onus of proving that
the dismissal is fair.
[15]
In
Solidarity
on behalf of Van Zyl v KPMG Services (Pty) Ltd and Others
,
[14]
Fourie, AJ stated :
‘
[6]
For several years the labour courts have held that the duty of an
arbitrator when
confronted by two irreconcilable versions, is
essentially the same as that of a judge in a trial court, as
expressed by the Supreme
Court of Appeal in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
:
‘
To
come to a conclusion on the disputed issues a court makes findings on
(a) the credibility of the various factual witnesses; (b)
their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors,
not necessarily in order
of importance, such as (i) the witness’ candour and demeanour
in the witness-box, (ii) his bias,
latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on
his behalf or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of
particular aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying
about the same incident or events. As to (b), a
witness’ reliability with depend, apart from the factors
mentioned under
(a)(ii), (iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality,
integrity and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probabilities and
improbabilities of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c)
the court
will then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging
it. The hard case,
which will doubtless be the rare one, occurs when the court’s
credibility findings compel it in one direction
and evaluation of the
general probabilities in another. The more convincing the former, the
less convincing will be latter. But
when all factors are equipoised
probabilities prevail
.”
[15]
[16]
In
Sasol Mining
(referred to in footnote 14) Van Niekerk, J,
after quoting the abovementioned passage from
Stellenbosch
Farmers’ Winery
, held (at para 9) as follows:
‘
One
of the commissioner’s prime functions was to ascertain the
truth as to the conflicting versions before him. As I have
noted,
this much the commissioner appears to have appreciated. What he
manifestly lacked was any sense of how to accomplish this
task, or
which tools were at his disposal to do so. The commissioner was
obliged at least to make some attempt to assess the credibility
of
each of the witnesses and to make some observation on their
demeanour. He ought also to have considered the prospects of any
partiality, prejudice or self-interest on their part, and determined
the credit to be given to the testimony of each witness by
reason of
its inherent probability or improbability. He ought then to have
considered the probability or improbability of each
party’s
version.’
[17]
In regard to the aforementioned
principles, it is my view that the Commissioner’s reasoning is
deficient in that the reasoning,
insofar as it relates to the
probabilities, is cursory and his reasons do not deal at all with an
assessment of the credibility
of the respective witnesses. Also, the
analysis by the Commissioner in the context of the 21st July 2009 to
the effect that the
charge related to a refusal to go to Ms Selepe’s
office is factually incorrect, and this error is compounded in the
evaluation
by the Commissioner of the evidence where she concludes
‘to me this shows that it is not true that the Applicant
refused
to go to her office on 21 July 2009….’
[16]
[18]
A material error of fact is not in and of itself sufficient for the
Commissioner’s award to be set aside:
‘
For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by Section 145(2)(a)(ii), the Arbitrator
must have misconceived the nature of the enquiry or arrived at an
unreasonable result. A result will only be unreasonable if it
is one
that a reasonable Arbitrator could not reach on all the material that
was before the Arbitrator. Material errors of fact,
as well as the
weight and relevance to be attached to particular facts, are not in
and of themselves sufficient for an award to
be set aside, but are
only of any consequence if their effect is to render the outcome
unreasonable.’
[17]
[19]
I am not convinced that the Commissioner’s reasoning and error
to which reference is made above had any material bearing
on the
outcome.
[20]
In the context of the alleged incident of 21 July 2009, Selepe
indicated that the first respondent had stormed out of her office
and
the employee in doing so contended that the year was half over and,
consequently, there was no reason to worry about ABET.
[21]
The Applicant contends that the
First Respondent’s version was so improbable that no reasonable
decision maker could have
accepted it. This argument appears to be
hinged on the basis that the employee’s version amounted to “a
bare denial”
and that this did not counter, on the
probabilities the evidence of Selepe and Ngwenya. The employee did
not deny the instruction
of 5 August 2009. The employee’s
evidence was that she complied with the instruction and signed
documents relating to sick
leave (“sign a doctor’s
note”).
[18]
[22]
The basis of the meeting for 5 August 2009 was apparently the
employee’s timekeeping. The Applicant produces no evidence
of
the poor timekeeping and while the charge reflects that the employee
‘dismally refused in front of your co-workers’
no
evidence is introduced from any of these co-workers either. Also, on
the probabilities, if the employee had ‘stormed out’
of
the meeting of 21 July 2009, why was this not the basis (or at least
part of the basis) for the request by Selepe to attend
the meetings
of 5 and/or 12 August 2009 and why was the ‘insubordination’
not raised before September 2009?
[23]
In relation to the incident on 12 August 2013, even if the
discrepancy in the dates is explained, at best for the Applicant,
the
parties’ respective versions are evenly balanced.
[24]
In the context of Ngwenya’s instruction on 4 September 2009,
once again, the parties’ respective versions are,
at best for
the Applicant, evenly balanced. Ngwenya contends that he issued the
instruction and the employee denies that he did.
No corroborating
evidence is introduced by either party in relation to their
respective versions.
[25]
Be that as it may, it is quite apparent from the Commissioner’s
award that an evaluation of the probabilities was conducted,
albeit
briefly, in relation to the three dates on which there had allegedly
been a failure to obey a reasonable instruction and
in relation to
the alleged insubordination of 21 July 2009 and, having done so, the
Commissioner arrived at the finding that the
Applicant had failed to
discharge the onus resting upon it.
[26]
This, in my view, represented a finding which was, on all the
evidence before the Commissioner, one which a reasonable decision
maker could reach.
[27]
In the premises, the following order is made:
27.1. The
Application is dismissed.
27.2. There is
no order as to costs.
________________
Maddern, AJ
Acting Judge of the Labour Court of
South Africa
Appearances:
For
the Applicant:
Advocate L Steenkamp
Instructed
by:
Jacobs Gonyora Inc.
For
the Respondents:
Mr E Luthuli of I.T.U
[1]
Index of
CCMA documents page 27
[2]
Record page
58 line 13
[3]
Index of
CCMA documents page 27
[4]
Record page
102 line 5
[5]
Record page
92 line 18
[6]
Record page
95 line 17
[7]
Record page
187 line 11, page 198 line 19 and page 206 line 11.
[8]
Index of
CCMA documents page 38.
[9]
Index to
CCMA documents page 39.
[10]
Index to
CCMA documents page 40.
[11]
Record page
137 line 14.
[12]
Record page
198 line 19.
[13]
Herholdt
v Nedbank Limited (Congress of South African Trade Unions as amicus
curiae
2013
(11)(b) LLR 1074 (SCA) at para 12.
[14]
(2014) 35
ILJ
1656
(LC) at para 6.
[15]
This
position seems to have been consistently adopted since at least 2007
(see
Vodacom
Service Provider Co (Pty) Ltd v Phala NO and Others
(2007)
28
ILJ
1335 (LC),
Lukhanji
Municipality v Nonxuba NO and Others
(2007)
28 ILJ 886 (LC) and has been applied fairly consistently since then
(see for example,
Sasol
Mining (Pty) Ltd v Ngqeleni NO and Others
(2011)
32
ILJ
723 (LC),
SATAWU
obo Semate v CCMA and Others
(unreported
Labour Court decision case no JR341/2010 (18 December 2012)).
[16]
Index of
CCMA documents page 133 at para 116.
[17]
Herholdt
,
supra
,
at para 25.
[18]
Record at
page 245 line 6.