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[2017] ZALCJHB 46
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Kruger v Commission for Conciliation, Mediation and Arbitration and Others (JR2520/10) [2017] ZALCJHB 46 (14 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR 2520/10
In the
matter between:
F J
KRUGER
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
T DUBE
N.O.
Second Respondent
SUN
INTERNATIONAL LIMITED t/a SUN CITY
Third Respondent
Heard:
17 January 2013
Delivered:
14 February 2017
JUDGMENT
ROBB AJ
I
ntroduction
[1]
The
Applicant seeks to review and set aside an Arbitration Award issued
by the Second Respondent, a Commissioner of the First Respondent,
on
7 September 2010 under Case Number NWRB 1388/10. The Second
Respondent found that the dismissal of the Applicant by his erstwhile
employer, the Third Respondent, was fair and made no order as to
costs.
[2]
The
Third Respondent opposed the application.
The
background facts
[3]
The
Applicant was employed by the Third Respondent as an Assistant
Maintenance Manager. He commenced employment on 1 December 2004,
as
an electrician, and was dismissed pursuant to a disciplinary hearing
on 3 May 2010. The two charges levelled against the Applicant
were
that he assaulted a DMG employee, Phillis Ramaoko, on 6 April 2010 by
grabbing him by his collar and shaking his head/body
in the
workplace, and that he made racist remarks to Phillis Ramaoko, Vusi
Khumalo and Philemon Mpeu by telling them that they
looked like
"baboons
at work"
.
The Applicant was found guilty on both charges, and the sanction of
dismissal was handed down in respect of the first charge.
In respect
of the second charge he was given a final written warning.
[4]
The
Applicant lodged an appeal against the finding of the disciplinary
hearing, which was held on 18 May 2010. The ground of appeal
was that
the chairperson of the disciplinary hearing did not consider the
evidence properly. The reasons which the Applicant relied
upon to
support his appeal were as follows:
4.1
‘
The
onus
is on the employer to prove the case. The employer brought 3
witnesses to solidify its case, but one witness disputed what is
written on the statement. How do you find a person guilty when the
witnesses are not reliable?’
[5]
The
appeal hearing was concluded on 18 May 2010 when the sanction imposed
by the disciplinary hearing chairman was upheld. The appeal
chairman
noted as follows:
‘
1
Credibility of a witness was questioned and is the basis of the
appeal.
2
The accused did not bring in witnesses or supporting evidence during
the
inquiry.
3
The accused did not dispute that he grabbed the employee by his
clothes
and shook him.
4
The guest was not called as a witness during the inquiry.
5
Witness statements (verbal/oral) don't match. Will disregard
and focus
on the other 2 consistent witnesses.’
[6]
Pursuant
to the dismissal of his appeal, the Applicant referred a dispute to
the First Respondent. The arbitration before the Second
Respondent, a
commissioner of the First Respondent, commenced on 13 July 2010 and
was completed on 18 August 2010. The accused
was represented by an
attorney, Mr J D Claassen of Serfontein Viljoen Attorneys, whilst the
Third Respondent was represented by
its HR Manager.
[7]
The
Second Respondent heard the evidence of the following witnesses
called by the Third Respondent:
7.1
Mr
Phillis Ramaoko ("Ramaoko");
7.2
Mr
Vusi Joseph Khumalo ("Khumalo"); and
7.3
Mr
Philip Nkosana Mpeu ("Mpeu").
The
Applicant called as a witness Ms Marie Denise Campbell-Young
("Campbell-Young"), and gave evidence himself.
[8]
The
underlying facts upon which the charges levelled against the
Applicant were based were that on 6 April 2010, at the Sun City
Resort, the Applicant had given instructions to Ramaoko, Khumalo and
Mpeu, all handymen in the employ of DMG, a labour broker which
supplied labour to the Third Respondent. The Applicant gave such
instructions at 09:00 on the morning of 6 April 2010, to the effect
that the three DGM employees were to clean roof tiles. Ramaoko and
Khumalo went on lunch at about 13:00 and returned at about 14:00
when
the Applicant arrived. The Applicant told them to meet him on the
ground next to Block 111. On their arrival he accused them
of working
slowly whereupon an altercation ensued. The three witnesses called by
the Third Respondent alleged that Ramaoko was
grabbed by the collar
and jerked around by the Applicant and that the Applicant said that
they were like baboons or monkeys. The
Applicant denied that he
grabbed Ramakoa by the collar and jerked him around or that he
likened the three of them to baboons or
monkeys. The witness called
by the Applicant, Campbell-Young, testified that she heard a
commotion whilst she was inside her unit,
upon hearing the commotion
she went outside to witness what was going on, and she stated that
she saw the Applicant and the three
DGM employees shouting at each
other. She did not see the Applicant grabbing the collar of one of
the 3 DGM employees and also
testified that she could not understand
the language used during the altercation between the four of them.
[9]
In
his analysis of the evidence, the Second Respondent found the
evidence of Ramaoko, Khumalo and Mpeu to be credible, and that
such
evidence was to the effect that the Applicant grabbed Ramaoko by the
collar of his uniform and shook him, and likened the
three of them to
baboons or monkeys. He referred to the fact that the Applicant's
witness, Campbell-Young, had denied that there
was any grabbing or
shoving, and that she became aware of the altercation whilst inside
her unit when she heard noise outside,
whereupon she watched the
altercation from her patio. He referred to the fact that the Third
Respondent's representative had put
to her that she might not have
seen the entire incident. The Second Respondent referred to the fact
that the Applicant had denied
having assaulted Ramaoko by grabbing
his collar and shaking him. He noted that the Applicant was not
dismissed for making racist
remarks. He dealt with the definition of
assault, which he defined as being the unlawful application of force
to a person and held
that the grabbing and
"choking"
of Ramaoko clearly fits in the definition of assault. He found that
the Applicant had assaulted Ramaoko on the afternoon of 6 April
2010
and held that
"whilst
dismissal is the appropriate sanction for assault, the misconduct is
aggravated by the fact that the Applicant was
a senior employee of
the (Third Respondent), as a Maintenance Manager. He held a
position of trust and could not be expected
to expose the Third
Respondent to a law suit and bad public image by assaulting
subordinates."
[10]
The
Second Respondent found that the Applicant's act of misconduct had
rendered a continuous employment relationship intolerable
for the
Third Respondent, which was left with no option but to dismiss the
Applicant and in the circumstances he held that the
dismissal was
substantively fair.
Grounds
of review
[11]
The
grounds of review relied upon by the Applicant at the review hearing
were as follows:
11.1
the
Third Respondent did not provide the Applicant with a statement by an
eye-witness, Campbell-Young, at the disciplinary hearing;
11.2
the
disciplinary hearing chairman was biased due to an alleged discussion
of the case with HR;
11.3
alleged
inconsistencies in the evidence of witnesses;
11.4
the
severity of the sanction; and
11.5
alleged
inconsistency in applying discipline.
[12]
Two
further grounds of review which related to a pre-suspension hearing
and the Applicant not receiving the ruling and appeal outcome
in
writing were not persisted with at the hearing of the review.
Test
on review
[13]
The
test on review is whether the conclusions reached by the arbitrator
were so unreasonable that no other arbitrator could have
come to the
same conclusion. In the landmark decision of
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others,
[1]
(
Sidumo
)
the Constitutional Court held,
inter
alia
,
that the arbitrator's conclusion must fall within a range of
decisions that a reasonable decision maker could make.
[14]
In
Fidelity
Cash Management Services v CCMA and Others
[2]
,
Zondo JP applied the
Sidumo
test as follows (at para 100):
‘
The
test enunciated by the Constitutional Court in Sidumo for determining
whether a decision for arbitration awarded by a CCMA Commissioner
is
reasonable is a stringent test that will ensure that such awards are
not likely interfered with. It will ensure that,
more than
before, and in line with the objectives of the Act and particularly
the primary objective of the effective resolution
of disputes, awards
of the CCMA will be final and binding as long as it cannot be said
that such a decision or award is one that
a reasonable decision maker
could not have made in the circumstances of the case. It will
not be often that an arbitration
award is found to be one which a
reasonable decision maker could not have made but I also do not think
that it will be rare that
an arbitration award of the CCMA is found
to be one that a reasonable decision maker could not, in all the
circumstances, have
reached
.’
[3]
[15]
In
Gold
Fields Mining South Africa (Kloof Gold Mine) v CCMA and Others
[4]
the
Labour Appeal Court held as follows:
‘
In
short, a review in court must ascertain whether the arbitrator
considered the principal issues before him/her; evaluated the
facts
presented at the hearing and came to a conclusion that is
reasonable.’
[5]
[16]
In
Head
of the Department of Education v Mofokeng
and
Others
,
[6]
the
Labour Appeal Court held as follows:
"
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 affect 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 inquiry 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.’
[7]
The
arbitrator's award weighed against the grounds of review
[17]
The
first ground of review relates to the statement of Campbell-Young not
supplied to the Applicant at the disciplinary hearing,
which is
common cause. As set out above, Campbell-Young testified at the
arbitration, to the effect she witnessed an altercation
consisting of
shouting and arguing in a language she did not understand. On her own
version, she did not witness the commencement
of the altercation,
since she was inside her unit. Her evidence did not contradict the
evidence of the three DGM employees, for
precisely those reasons,
i.e. she did not witness the entire altercation and did not
understand what was said. In the circumstances,
the failure to
provide the Applicant with her statement initially had no bearing on
the outcome of the arbitration award. The Second
Respondent dealt
with this issue in his award, and found that the failure to provide
the statement did not contribute to procedural
unfairness. That is a
reasonable conclusion to reach. This ground has no merit.
[18]
The
second ground of review is that the disciplinary hearing chairman was
allegedly biased on account of a discussion with the Third
Respondent's HR representative. The only reference in the transcript
to this is on page 96I (numbered page 131 of the record of
proceedings) where the Applicant refers to being unhappy with the
chairperson because he told him he was going to consult with
the HR
Manager. This ground played no role in the Applicant's appeal, and
appears to be in the nature of an afterthought, since
it was not
raised by the Applicant at the time with either the chairperson or
the HR Manager. The Second Respondent found it to
be probably an
afterthought, which is a reasonable conclusion to draw. This ground
has no merit.
[19]
The
third ground is alleged inconsistencies in the evidence of witnesses.
This refers to the evidence of the three DGM employees.
The Second
Respondent found the three witnesses to be credible. It seems to me
that their evidence was materially consistent. References
to
"monkeys" or "baboons" are inconsequential, and
similarly offensive. Grabbing, shaking, pushing and shoving
amount to
much of the same in an altercation. The evidence of the independent
witness, Campbell-Young, is of no assistance in that
she did not
witness the entire incident and did not understand what was being
said. The conclusions drawn by the Second Respondent
are reasonable.
This ground has no merit.
[20]
The
fourth ground is the severity of the sanction of dismissal. Having
correctly found an assault, the Second Respondent found a
continued
employment relationship to be "intolerable". The Applicant
himself testified that the trust relationship had
suffered
irreparably, in submitting he sought compensation, not reinstatement,
during the arbitration. The Second Respondent was
correct in finding
that having found the Applicant guilty of assault, the Third
Respondent had no option but to dismiss him. This
ground has no
merit.
[21]
The
final ground of review is alleged inconsistency in the application of
discipline. This arises out of the mention by the Applicant
during
his evidence that he was aware that two chefs had physically
assaulted each other and both received a final written warning.
Neither chef was named by the Applicant, nor was any detail supplied
of this alleged incident. No evidence of a material nature
having
been presented to him, the Second Respondent could not be expected to
pronounce on the validity of this bald allegation.
The Second
Respondent does refer in his award to alleged inconsistent
application of rules by the Applicant, without finding such
to be
present. This was sufficient reference in circumstances where no
proper evidence was presented to him. This ground also has
no merit.
[22]
There
is no reason why costs should not follow the result in this matter.
Order
[23]
I
order that the application for review is dismissed with costs.
___________________
Nicholas
Robb
Acting
Judge of the Labour Court
of
South Africa
APPEARANCE:
FOR THE
APPLICANT:
Advocate C Goosen
Instructed by Serfontein Viljoen en
Swart
FOR THE
THIRD RESPONDENT:
Advocate A Cook
Instructed by Salijee Du Plessis Van
der Merwe Inc.
[1]
(
2007
)
28 ILJ 2405 (CC).
[2]
[2008]
3 BLLR 197 (LAC).
[3]
At para 110.
[4]
(
2014)
31 ILJ 943 (LAC).
[5]
At para 16.
[6]
[2015]
1 BLLR 50 (LAC).
[7]
At para 33,