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[2017] ZALCJHB 80
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L A Crushers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1676/14) [2017] ZALCJHB 80 (8 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no:
JR
1676/14
In
the matter between:
L
A CRUSHERS (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
JOSIAS
SELLO MAAKE
N.O.
Second Respondent
NUM
obo JOSEPH
MOHLALA
Third Respondent
Heard
:
1 March 2017
Delivered
:
8 March 2017
Summary:
An arbitrator has no powers to determine the
sanction afresh. His duty is to determine whether the sanction
imposed by the employer
is a fair one or not. In doing so he applies
his own sense of fairness and need not defer to the employer. An
arbitrator who interferes
with the sanction of dismissal in the
circumstances where there is no basis to conclude that the sanction
is unfair commits a reviewable
irregularity and does not act in
accordance with the
Labour Relations Act 66 of 1995
. His award is
bound to be unreasonable and reviewable in accordance with the
Sidumo
test
.
Held:
[1] The award of the second respondent is reviewed and set aside and
it is replaced with an order that the dismissal is fair.
[2] The
Union to pay the costs.
JUDGMENT
MOSHOANA
AJ
Introduction
[1]
This is an opposed review application. The
applicant seeks to review and set aside an arbitration award made by
the second respondent.
This is one of those known as sanction
reviews. The second respondent interfered with the applicant’s
sanction of dismissal.
Background
facts
[2]
Mr Joseph Mohlala (Mr Mohlala) was employed by the applicant
as an Industrial Relations Officer from 1 October 2012. Mr Mohlala
applied for leave of absence for the period 11-15 November 2013.
After the authorised leave of absence, he did not return to work.
He
stayed absent without authority for a period of a week. Despite being
asked and instructed to return to work, he failed to do
so. On his
return, he was requested to submit written reasons why he was absent
in what the applicant considered to be a critical
month of November.
Mr Mohlala was then charged with misconduct. He was found guilty and
dismissed. He was aggrieved thereby and
referred a dispute of alleged
unfair dismissal. The second respondent was appointed to resolve the
dispute through arbitration.
On 16 July 2014, he issued the
award under attack in the present application.
Evaluation
[3]
As pointed out, the issue in this review is the interference
with the sanction. The second respondent concluded that Mr Mohlala
was properly convicted. Elsewhere in his award, he concluded that the
applicant made itself guilty of inconsistence. It is not altogether
clear what inconsistency was he dealing with. Inconsistency applies
in instances where an employer takes discipline against some
employees and not takes it against other employees. Also where
different sanctions are meted out for similar offences. Nonetheless,
the second respondent seems to have rejected the general principle
that each case is decided on the basis of its own merits. This
he did
against what he found to be a failure to refute examples cited by
Mr Mohlala as inconsistencies. I do not understand
this finding
at all. However, given the view I take later, I shall not canvass
this issue any further in this judgment.
When
is an arbitrator entitled to interfere with the sanction of the
employer?
[4]
It is by now settled law
that in terms of the
Labour Relations Act,
[1]
an arbitrator is empowered to enquire into the appropriateness of the
sanction of dismissal. In so doing, the arbitrator invokes
his own
sense of fairness and should not defer to the employer.
[2]
In this matter, before interfering with the sanction of the
applicant, he found thus:
“
[46]
It is my considered view that granted he was properly convicted, the
dismissal sanction was harsh in
the circumstances, regard being had
to the personal problems he faced, as also the fact that he was a
first offender. There were
alternative sanctions to dismissal, such
as, for an example, a final written warning, a demotion or the
docking of salary or the
deeming of the extended leave period unpaid
leave. I am of the view that the dismissal sanction was unduly
influenced by his perceived
defiant posture, both when he returned
for duty and after and regarding the latter, when he allegedly failed
to comply with a request
that he furnish written representation.
[5]
In
Quest
Flexible Staffing Solutions (Pty) Ltd v Abram Legoabe,
[3]
the Labour Appeal Court clarified the issue thus:
“
In
Sidumo
,
the Constitutional Court held that a Commissioner is not empowered to
establish afresh what the appropriate sanction is, but rather
to
decide whether the employer’s decision to dismiss is fair. In
making this determination, the commissioner should not defer
to the
decision of the employer but should weigh up all the relevant
factors, including the importance of the rule that has been
breached,
the reason the employer imposed the sanction of dismissal, the harm
caused by the employee’s conduct, whether additional
training
and instruction may result in the employee not repeating the
misconduct, the effect of the dismissal on the employee,
and the
employee’s service record. These factors are, however not
considered by the Constitutional Court to be an exhaustive
list.
Hence other relevant factors that may warrant consideration in
assessing the fairness of a sanction include the seriousness
of the
misconduct, the effect of such conduct on the continuation of the
employment relationship, the nature of the job and the
circumstances
of the infringement.
.
. .
In
addition, the appellant regarded seriously disrespectful conduct, of
the nature committed by the respondent, as an offence that
warranted
dismissal on the first occasion. Its code of conduct provides as
much. In failing or refusing to demonstrate any acceptance
of
wrongdoing or remorse, the respondent rendered the continued
employment relationship with the appellant intolerable and undermined
the applicability of corrective or progressive discipline.”
[4]
(Footnotes omitted.)
[6]
The principle enunciated above is clear. In this matter, it
seems that in interfering with the sanction, the second respondent
only
took into account the situation of Mr Mohlala and completely
ignored the applicant’s situation. It does seem that the
evidence
of Ms. Mokgoko that November was a crucial operational
budget cycle fell on deaf ears. Instead, what the second respondent
did
was to find a reason for the applicant why it dismissed Mr
Mohlala. In this regard, the second respondent entered the realm of
speculation. He was no longer performing his duties to determine the
fairness of the sanction of dismissal. Mr Mohlala as an Industrial
Relations Officer is a custodian of policies of the applicant and
should lead by example. To just stay away from work at a crucial
period and refuse to give a proper explanation affected the
continuation of the employment relationship and is a clear sign of
lack of remorse.
[7]
In summary, the second respondent was not empowered to
interfere with the sanction of the applicant in the manner in which
he did.
By so doing the second respondent committed a reviewable
irregularity, which renders his award to be unreasonable.
Order
[12]
In the results, I make the following order:
1.
The award issued by the second respondent under case number
LP 409/14 dated 13 July 2014 is hereby reviewed and set aside.
2.
It is replaced with an order that the dismissal of Mr Joseph
Mohlala is fair.
3.
The third respondent to pay the costs.
_______________________
GN
Moshoana
Acting
Judge of the Labour Court of South Africa
Appearances
For the Applicant:
Mr C J Geldenhuys
Instructed by:
Geldenhuys CJ @ Law, Irene.
For
the Third Respondents: Mr Q M Dzimba
Instructed
by:
Mothobi Attorneys,
Midrand
[1]
66 of 1995.
[2]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405
(CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) at paras 75, 78 and 79.
[3]
[2014] ZALAC 55; [2015] 2 BLLR 105 (LAC).
[4]
Id at paras 19 and 22.