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[2016] ZALCPE 7
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Ngcana v Commission for Conciliation, Mediation and Arbitration and Others (PR73/14) [2016] ZALCPE 7 (29 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: PR 73/14
In
the matter between:
AZOLA
NGCANA
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
BOTHA DU PLESSIS
Second Respondent
NATIONWIDE
SECURITY (PTY)
LTD
Third Respondent
Heard:
29 May 2015
Delivered:
29 February 2016
Summary:
The Labour Court does not review and set aside an arbitration award
when the applicant has not
established that the arbitration award
falls outside the bounds of reasonableness.
JUDGMENT
LALLIE,
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent (‘the commissioner’)
in which he
found the applicant’s dismissal fair. As the application was
filed outside the six weeks period envisaged in
section 145 (1) of
the Labour Relations Act 66 of 1995 (‘the LRA’), the
applicant applied for condonation for the delay.
Both applications
are opposed by the third respondent.
Condonation
[2]
The review application was filed five months late. The determination
of a condonation application involves the consideration
of a number
of factors which include the extent of the delay, the explanation
thereof, prejudice to the parties if condonation
is granted or
refused, reasonable prospects of success and the interests of
justice.
[1]
[3]
The extent of the delay is five months. It is excessive and requires
reasonable explanation. The applicant was employed by the
third
respondent as a grade D security guard. He performed his duties at
the offices of the South African Revenue Service (‘SARS’),
in Port Elizabeth. After his dismissal, he went to his home in
Mthatha as his unemployment made it impossible for him to continue
renting accommodation in Port Elizabeth. While in Mthatha, he was
advised that he could get free legal representation from the
Port
Elizabeth office of the Justice Centre. He travelled to Port
Elizabeth and made the necessary application. Internal processes
of
the Justice Centre to determine whether assistance should be granted
added to the delay. When the decision to assist the applicant
was
taken, the review and condonation applications were drafted and
filed. Opposing the application, the third respondent criticised
the
applicant for not making his application to the Justice Centre while
he was still in Mthatha as that would have limited the
delay. The
approach suggested by the third respondent is ideal but not
practicable in the circumstances. While the necessity to
comply with
the Rules of the Labour Court cannot be overemphasised, this Court
does not turn a blind eye to the inability of unemployed
applicants
for condonation to afford legal representation. Although the delay is
excessive the applicant has provided reasonable
explanation. He will
suffer more prejudice than the third respondent should this
application be refused as he will lose the right
to have his review
application heard. This court does not take the decision to non-suit
a litigant’s lightly. For these reasons,
the application for
condonation should succeed.
Factual
background
[4]
The applicant was employed by the third respondent as a grade D
security guard in October 2012 until his dismissal on 24 April
2013
for site desertion on 11 and 12
April 2013. He challenged
the fairness of his dismissal at the first respondent (‘the
CCMA’) where the commissioner
issued the arbitration award that
the applicant seeks this Court to review and set aside.
The
award
[5]
The applicant performed guard duties at SARS in April 2013. On the
last two days of employment with the third respondent, the
applicant
worked night shift which started at 18h00 and ended at 06h00 the
following morning. Evidence led on behalf of the third
respondent was
that on the morning of 11 April 2013, the applicant was seen by the
site manager, Mr September (‘September’)
leaving his site
15 minutes early and without being relieved by the security guard
that was supposed to work the day shift which
was scheduled to start
at 06h00. September reprimanded the applicant for his conduct and
gave him a verbal warning. As the applicant
had deserted his post,
September had to perform guard duties at it until the arrival of the
day shift security guard. The following
morning the applicant
repeated the misconduct. He was charged with deserting his post for
the two mornings and dismissed. The applicant
denied having deserted
his post and testified that on the first morning he left his post
after the arrival of Mr Kallis (‘Kallis’),
a fellow
security guard but gave no details of the security guard who relieved
him on his last day on duty. He testified that he
had evidence of
entries in the occurrence book (‘OB’) to prove that he
did not desert his post.
[6]
The commissioner considered both versions before him and attached no
weight to the applicant’s evidence because his testimony
did
not always make sense and he contradicted himself during cross
examination. He further noted that the applicant initially denied
that he was on duty on the two days in question but later claimed
that he was on duty but denied having deserted his post. He alleged
that the respondent had no evidence to prove that he had deserted his
post. He, however, gave the wrong name of the guard that
relieved him
and gave a name of a security guard who was not even on the SARS
team. The occurrence book was not signed in the manner
that supported
the applicant’s version. The commissioner accepted September’s
evidence as he was the site manager and
on the spot. He was not
shaken under cross-examination. He considered the misconduct which
led to the applicant’s dismissal
a serious offence especially
in the security industry where the conduct goes to the heart of the
employment relationship. The commissioner
then dealt with procedural
fairness which I decided not to consider in determining the review
application because the applicant’s
attorney intimated that the
commissioner’s finding on procedural fairness was not
challenged.
[7]
The commissioner found the sanction of dismissal appropriate because
the relationship between the applicant and the third respondent
was
destroyed. He considered that in the security industry, post
desertion goes to the root of the employment relationship. He
took
into account that the applicant showed no remorse as it would be
difficult for any employer to re-employ an employee who has
shown no
remorse.
[2]
He relied on the
provisions of Schedule 8 to the LRA in concluding that it was
appropriate to dismiss an employee when the misconduct
is serious and
of such gravity that it makes the employment relationship
intolerable. He finally concluded that the applicant’s
dismissal was fair.
Test
for review
[8]
Section 145 of the LRA enables the Labour Court to set aside an
arbitration award on application by a party to a dispute who
alleges
a defect in arbitration proceedings under the auspices of the CCMA.
The test for review is whether the decision reached
by the
commissioner is one that a reasonable decision-maker could not
reach.
[3]
Grounds
for review
[9]
The applicant submitted that the answering affidavit should be
disregarded as it was filed prematurely before the filing of
the Rule
7A(8) notice. The premature filing of the answering affidavit
is of no moment. The third respondent filed
it early at its own
peril. The purpose of the requirement that it be filed after
the Rule7A(8) notice is to afford the respondents
an opportunity to
answer to allegations made in the supplementary affidavit. The
decision to non-suit a party is not taken
easily. The applicant
did not suffer any prejudice as a result of the third respondent’s
conduct. A decision
not to take the answering into account is
not justified in the circumstances. The applicant submitted that the
commissioner reached
conclusions which are entirely disconnected from
the evidence which served before him. He committed a gross error
and/or gross
irregularity and arrived at an unreasonable conclusion
in that he failed to take into account relevant and material aspects
of
the evidence which was favourable to the applicant’s
version. He completely and unreasonably ignored to deal with material
aspects of the evidence. Substantiating the allegation, the applicant
submitted that the commissioner ignored the time sheet which
indicated that he was off duty on 11 and 12 April 2013 which
corroborated his version. He was charged for committing misconduct
on
11 and 12 April 2013. The applicant expressed the view that had the
commissioner allowed the evidence and attached due weight
to it, he
would have found his version probably. The applicant is being
opportunistic and bordering on being disingenuous by raising
this
ground as the record clearly reflects that the error in dates was
corrected at the arbitration before evidence was led and
the third
respondent made it abundantly clear that the two days the applicant
was alleged to have committed the misconduct were
his last two days
on duty.
[10]
The applicant further submitted that the commissioner failed to
consider what the precise nature of the rule/practice was by
failing
to attach weight to the fact that the third respondent failed to
prove what the rule was and whether it was indeed communicated
to
him. When September was giving evidence on behalf of the third
respondent, he made it clear that the rule was communicated to
the
applicant and the applicant did not challenge his evidence. The
commissioner’s finding that, in the security industry,
post
desertion constitutes serious misconduct cannot be faulted. There are
also unwritten rules of conduct which employees in different
industries are expected to be reasonably aware of. Guarding premises
is the core of a security guard’s duties. The applicant
further
submitted that the commissioner interrupted proceedings on many
occasions making it impossible for him to present his version
at
times. The third respondent correctly pointed out that the record
reflects that when the commissioner interjected, he was guiding
the
process and even assisting the applicant. By so doing, he was
fulfilling his duties in terms of section 138 of the LRA. The
third
respondent correctly argued that the applicant’s allegation
that the commissioner failed to play an inquisitorial role
is invalid
and contradicts his submission that the commissioner interrupted. It
is further not supported by the record. The attack
on the
commissioner’s reasoning process is unjustified and discordant
with the test for review which is whether the decision
and not the
reasoning process of the commissioner was reasonable.
[11]
The applicant submitted that the reasons given by the commissioner in
respect of the appropriateness of the sanction were unreasonable
and
flawed as he failed to focus on the entire evidence which served
before him. He expressed the view that the evidence does not
support
the conclusion that the charge contained an element of gross
(serious) misconduct. A security guard employed to guard premises
who
refuses to acknowledge the gravity of the misconduct of leaving those
premises unguarded makes mockery of the need to enlist
the services
of a security company. The applicant’s allegation that the
commissioner failed to apply his mind to the fact
that no progressive
discipline was followed overlooks September’s evidence that
when the applicant deserted his post for
the first time, he
reprimanded him and gave him a verbal warning. September’s
evidence, in that regard was not refuted. The
applicant submitted
that no evidence was led which objectively leads to a logical
conclusion that the contract was in fact jeopardised
because
September testified that he stood in for the applicant. This ground
loses sight of the fact that September was a site manager.
He was not
employed to relieve the applicant but forced to do so by the
applicant’s misconduct.
[12]
The applicant submitted that no evidence was led from which it could
objectively be determined that the trust relationship
had been
damaged beyond repair. The commissioner gave reasons why he was of
the view that the trust relationship had been destroyed.
He relied on
Schedule 8 of the LRA which required him to determine the
appropriateness of the sanction. He also relied on a Labour
Appeal
Court decision in making his finding that the sanction of dismissal
was appropriate. He, therefore, applied his mind to
the issue and
reached a reasonable decision on it. The applicant’s allegation
that the commissioner misconstrued the nature
of the enquiry before
him and that his award is entirely disconnected from the evidence is
not supported by the record.
[13]
The applicant raised some aspects of the arbitration proceedings that
he was not happy with which include the weight the commissioner
attached to evidence. He further submitted that had he committed the
misconduct which led to his dismissal, further and different
charges
would have been preferred against him. Not every gripe that an
applicant for review has constitutes valid grounds for review.
Mistakes made by commissioners in the conduct of arbitrations which
do not render their decisions, based on the evidence before
them,
unreasonable, do not render their awards unreasonable. An assessment
of the evidence which served at the arbitration in its
totality
proves that the applicant failed to prove a defect in the arbitration
proceedings and his application cannot succeed
[14]
In the premises, the following order is made:
14.1
The late filing of the review application is condoned.
14.2
The application for review is dismissed.
___________
Lallie, J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Miss Van Staden of the Justice
Centre
For
the Third Respondent: Advocate Grobler
Instructed
by Bakker Attorneys
[1]
SA Post Office Ltd v CCMA and
Others
[2012] 1 BLLR 30
(LAC) at para 17.
[2]
De Beers
Consolidated Mines Ltd v CCMA and Another
(2000)
21
ILJ
1051 (LAC) at para 25.
[3]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC) at para 110.