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[2017] ZALCJHB 102
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Breed v Laser Cleaning Africa and Others (JR1693/16) [2017] ZALCJHB 102 (24 March 2017)
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
C
ase
No: JR 1693/16
In
the matter between:
PIETER BREED
Applicant
and
LASER CLEANING
AFRICA
First Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
COMMISSIONER
MXOLISI
MANTSHULE
N.O
Third Respondent
Heard
:
7 February 2017
Delivered
:
24 March 2017
Summary:
(Review – grounds of review in reality
grounds of appeal – even if evaluated as if they amounted to a
review based on
rationality, alleged defects would not render award
reviewable.)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicant has applied to review and set
aside an arbitration award issued by the third respondent in favour
of the first respondent.
The arbitrator found that the applicant’s
dismissal was procedurally and substantively fair. The applicant had
been dismissed
for two charges of misconduct relating to the
unauthorised use of company vehicles whilst on leave in March 2016
and wilful damage
to company property in February 2016.
[2]
The arbitrator found that the applicant’s
dismissal was procedurally fair because the applicant decided not to
attend the
disciplinary enquiry. The applicant did not do so because
he did not consider himself bound by the disciplinary enquiry process
adopted by the employer as part of its policies. He insisted instead
that, he was entitled to a hearing in terms of the principles
of
audi
alterem partem
or natural justice. The
arbitrator found that the employer was entitled to follow its own
disciplinary procedures in the absence
of a written contract stating
otherwise. The arbitrator reasoned that since the applicant did not
attend the hearing of his own
free will, he had waived his right to
be heard.
[3]
With regard to the first charge, the
arbitrator found that the Policy governing the applicant’s use
of vehicles was set out
in writing on 8 December 2014. It
specifically identified him by name as being entitled to use the
vehicle to and from work. The
policy also stated that private use of
the vehicle without prior consent was prohibited. The policy also
stipulated that the vehicle
had to be parked on the company premises
when the employee went on leave.
[4]
The charge arose when the applicant took
the vehicle to Kwa Zulu Natal South Coast when he was on personal
leave from Tuesday 1
March 2016 to Thursday 3 March 2016. It was
common cause that whilst on special leave in March 2016, the
applicant had driven the
vehicle to the KZN South coast without
notifying the employer. The arbitrator found that the applicant saw
nothing wrong with his
conduct because he did not believe he was
bound by the policy. The arbitrator found that it was untenable for
the applicant to
regard himself as exempt from the policy especially
when his own terms of usage were expressly spelt out in the policy. I
note
in passing that these terms were specifically drafted to allow
the applicant the limited use of the vehicle for his personal
transport.
The policy was implemented by the employer in December
2014 and the relevant portions stated:
“
To
all assigned users of company vehicles,
With the recent purchase
of the additional bakkie, we have reviewed our current vehicle
running costs and will make certain necessary
changes to the company
vehicle policy as follows:
1.
The company vehicle is for the sole use of
transporting staff and laser cleaning equipment to and from our
offices to site and back.
Any staff member who uses a company vehicle
outside these parameters, without prior consent of the director or
the company will
face the necessary disciplinary action.
...
4. Company car private
use-now whilst we have been extremely accommodating over the last 12
months in assisting staff members with
transport requirements, it has
become necessary, in line with managing the company’s expenses
more effectively, to implement
the following changes.
a) Pieter Breed and
Willem Breytenbach are the only two vehicle drivers who have consent
to make use of company transport to get
home at the end of each day
and back to work the following morning. This is seen as a privilege
and NOT a condition of your employment.
b) With immediate effect
the company will no longer contribute towards your fuel cost in order
to get from work back home and vice
versa, this cost will in future
be for the assigned driver/s of the vehicle. It is expected that
Pieter Breed and Willem Breytenbach
are to present the deemed fuel
usage and cost to Lorette, for the purpose of making it a monthly
salary deduction from the paper.
Failure to do this will result in
management making the decision as what the deemed personal fuel spend
is each month, and deducted
accordingly from their salaries each
month.
c)
The company will also no longer be liable for any E-toll costs or
toll gates relating to your chosen route of travel between
home and
the office, this will also be treated as in clause (b).
c) The company is happy
to carry the wear and tear cost, as well as any servicing costs as
per the manufacturer’s requirements
during the warranty period
of the vehicles, whilst in use by yourselves.
d) The standard practice
of utilising company transport in order to get home and back to work
each day, will be limited to one vehicle
only for both Pieter Breed
and Willem Breytenbach on a daily basis. This reduces any unnecessary
expense and the last two drivers
to share the fuel cost, relative to
distances to from their respective homes to the office and back. The
only exception to this
rule, will be in the event of one or other
been assigned to a project that does not allow either to? Travel
together. In this instance
the affected driver will make use of the
second vehicle with management’s prior permission to do so. “
[5]
The arbitrator felt that the applicant had
wilfully and deliberately defied the employer’s authority by
taking the vehicle
for his personal use whilst on leave without
seeking prior authorisation and that the applicant had wilfully and
deliberately defied
the employer’s authority. The arbitrator
rejected the applicant’s contention that he was entitled to use
it because
it was an ‘emergency situation’ which required
him to use the vehicle.
[6]
The policy adopted in December 2014
required vehicles to be left at the employer’s premises when an
employee was on leave.
Management acknowledged that the applicant had
objected to the policy but insisted that he was told that he had to
abide by it.
The company had intended to use the vehicle in a client
demonstration but had to postpone the event because the vehicle was
not
available. It was common cause that the applicant did not advise
anyone that he had taken the vehicle to the South coast.
[7]
In relation to the second charge which
arose from damage caused to a compressor which the applicant pulled
off a vehicle it was
being transported in, the arbitrator accepted
the undisputed evidence that, despite the established practice at the
firm, in terms
of which employees paid for damages they caused, he
had behaved recklessly with the equipment causing the damage. The
existence
of a policy of reimbursing the employer for damage to its
property, did not entitle employees to treat the property recklessly.
[8]
Having found the applicant guilty of both
charges, the arbitrator considered whether dismissal was an
appropriate sanction. In this
regard he considered the gravity of the
misconduct and the rationale for the existence of rules in the
workplace. He was of the
view that the employer was faced with an
employee “who wanted his way and nothing else in the workplace”
and that because
of his attitude a sanction less than dismissal would
not resolve the problem.
Grounds of review
[9]
I appreciate that the applicant is a
layperson. His grounds of review are formulated more like grounds of
appeal and are somewhat
inchoate even as grounds of appeal. As such,
his application stands to be dismissed on this basis alone. However,
I have considered
the applicant’s complaints about the
arbitrator as if they were grounds of review relating to the
reasonableness of the award,
making generous allowance for this
severe defect in the pleadings. Nonetheless, just because the
applicant is a layperson, it does
not mean that a less stringent test
applies in assessing those complaints interpreted as grounds of
review. In regard to those
complaints of the applicant which simply
repeat his criticism of the original disciplinary enquiry, unless he
has related those
to the reasons he attacks the Commissioner’s
award, I have not dealt with those complaints because they are not
relevant
to reviewing the Commissioner’s reasoning and
findings.
[10]
As far as I can tell from the papers and
the applicant’s argument presented in court, apart from simply
repeating the case
he made at the arbitration, the applicant
criticises the Commissioner’s reasoning on the following
grounds, which I have
grouped together:
[11]
On the question of procedural fairness, the
applicant believes that the arbitrator failed to consider that the
employer had offered
him a settlement package before proceeding with
the disciplinary action once he rejected it and that, accordingly,
his belief that
the hearing would not be fair was justified. His
distrust of the employer’s motives was also justified because
of the way
the employer had imposed the transport policy on him. The
applicant further takes issue with the Commissioner for accepting
that
the employer’s disciplinary procedure was binding on him
even though he had never consented to it and for allegedly ignoring
the fact that the LRA protected his ‘right to an informal
hearing’.
[12]
The arbitrator ignored evidence presented
at the enquiry that the employer’s evidence was false and that
he had never waived
his right to a fair hearing because he had
notified the chairperson and the arbitrator of his wish to be heard
in an unbiased hearing
following the principles of natural justice.
[13]
The applicant claims that when the
arbitrator said he did not have a right to object to a disciplinary
enquiry being held except
in the case of pre-dismissal arbitrations,
the applicant became so distracted that he forgot to present certain
important evidence
in his testimony. He also believes that the
arbitrator’s reference to pre-dismissal hearing as being the
only time when an
employee could object to the process was an
interference with his right to natural justice.
[14]
The arbitrator erred in finding that the
chairperson had not breached the
audi
alterem
principle when he proceeded
with the disciplinary enquiry because the chairperson was an
independent party with no prior connection
with the employer. It
appeared that the applicant is of the view that the chairperson could
not have proceeded with the enquiry
without his side of the story
being investigated beforehand. The applicant believes that the
investigative phase prior to instituting
disciplinary proceedings was
an integral part of his right to a fair hearing and the failure to
discuss the allegations with him
during the investigation phase
deprived him of the right to an informal hearing. He also seemed to
be of the view that something
was amiss because in other disciplinary
enquiries the manager, Mr Games had conducted the hearing himself.
[15]
The arbitrator further allegedly ignored
clear and undisputed evidence that there was a rule in place that he
had unrestricted use
of the company vehicle within reason and that
his fuel costs and toll fees were paid for in accordance with an
agreement reached
before
he accepted employment, and the employer had not honoured that prior
agreement.
[16]
The arbitrator ignored evidence that the
charge of wilful damage to company property depended on the existence
of a rule that required
the reporting of any damage without
exception, which did not exist.
Evaluation
Procedural Issues
[17]
It is obvious that the applicant labours
under a misapprehension about the kind of hearing that an employer
must conduct according
to item 4 of schedule 8 to the Labour
Relations Act, 66 of 1995 (‘the LRA’). That provision
reads:
“
(1)
Normally, the
employer should conduct an investigation to determine whether
there
are grounds for dismissal. This
does not
need
to be a
formal
enquiry
. The employer should notify the
employee of the allegations using a form and language that the
employee can reasonably understand.
The employee should be allowed
the opportunity to state a case in response to the allegations. The
employee should be entitled
to a reasonable time to prepare the
response and to the assistance of a trade union representative or
fellow employee. After the
enquiry, the employer should communicate
the decision taken, and preferably furnish the employee with written
notification of that
decision.”
(Emphasis
added)
[18]
The
requirements of a fair procedure set out in the extract above set out
the
minimum
requirements that a disciplinary enquiry ought to comply with. It is
important to note that the emphasised words merely highlight
that an
employer is not obliged to hold a formal enquiry like the respondent
did in this case.
[1]
However,
nothing prevents an employer from convening a more formal inquiry
with more procedural safeguards for the employee than
the LRA
requires. In this case, the employer appointed an external
chairperson, who is less likely to be reluctant to find in an
employee’s favour than another employee who might be influenced
by considerations about how their employment career might
be affected
if they made a finding adverse to what they perceived to be the
employer’s wishes. The employer could have appointed
one of its
own managers to conduct the enquiry, but decided to go one step
further in making the process a more independent one
by appointing a
third party who was not an employee and with no prior involvement in
the issues to be considered or in the failed
negotiations to try and
arrive a termination by consent. There is always a certain degree of
inherent bias in internal enquiries
which cannot be avoided and in
this instance the employer took additional steps to minimise that
possibility.
[2]
[19]
In
so far as the applicant believes his right to a fair procedure
includes a right to be consulted or interviewed during any
preliminary
investigation that perception also rests on a commonly
held misconception. It is the disciplinary enquiry where the employee
is
entitled to be given an opportunity to put his or her side of the
story. It is not necessary for an employer to engage with the
employee in all the steps leading up to that enquiry unless that is
required by a disciplinary procedure.
[3]
[20]
When
the applicant decided not to go to the enquiry and present his
complaint he effectively denied himself the opportunity of presenting
his side of the story to the chairperson. If he wanted to re-open
discussions with his employer on settling the matter or to debate
the
rules relating to transport nothing stopped him from requesting such
a discussion. However, when it came to defending himself
against the
charges, it was the enquiry set up by the employer which provided him
with the opportunity for him to do so.
He cannot complain of
lack of
audi
alteram partem
if
he did not make use of the reasonable opportunity to present his side
of the case.
[4]
[21]
Not only is there nothing unreasonable
about the arbitrator’s findings on procedural fairness but they
were also perfectly
correct on the facts and in law in my view.
Substantive matters
[22]
The company transport policy cited above
was implemented in December 2014. The email in which it was contained
also invited anyone
who had an issue with the policy to see the
managing director before the end of that month. The applicant’s
claim was that
when he was employed it was agreed that he would have
the right of private use of the company vehicle and that he never
accepted
the policy as laid down by the employer in December 2014.
Under his cross-examination at the arbitration, the managing director
agreed with the applicant that he could make private use of the
vehicle, within reason. However, even under special circumstances
he
did not consider a 2000 km road trip could be considered reasonable
use. Even if it was an emergency, the applicant ought to
have
consulted about using the vehicle for such a trip and requested
permission to do so. In his view such use was a matter for
him to
decide in the exercise of his discretion and not a matter for the
applicant to decide unilaterally.
[23]
For his part, the applicant was insistent
that because he did not consider himself bound by the requirement of
obtaining permission
to use the vehicle, he was entitled to use it in
the circumstances of the family emergency he faced. He also testified
that despite
the introduction of the transport policy in December
2014 he still received payment of his transport costs. Among the
points he
emphasised was that there was no rule in place for the use
of a vehicle in an emergency and that work was not inconvenienced by
him having the vehicle because an alternative appointment was made
when the vehicle would be needed after he returned. Although
he
freely acknowledged that the normal rule when he was on leave was to
leave the vehicle at the office, the emergency he was dealing
with
meant it was acceptable for him not to follow the rule on that
occasion though he did feel obliged to pay for the fuel expenses
because of the distance involved.
[24]
Even if I accept for argument’s sake
that the applicant had never agreed to the revisions to the transport
policy introduced
in 2014, it was not unreasonable for the arbitrator
to conclude that when it came to the emergency personal use of the
vehicle,
the applicant was not entitled to have retained the vehicle
during his leave and used it to travel to the South Coast without
obtaining
prior authorisation. What is clear is that, the applicant
believed that it was for him to determine whether emergency private
use
of the vehicle was reasonable and the extent to which it was
necessary.
[25]
In relation to the charge of damaging the
compressor, it was not a conclusion that no reasonable arbitrator
could have come to in
deciding that, notwithstanding the principle of
reimbursing the employer for damage done to equipment, it was because
the damage
was inflicted recklessly that disciplinary action was
warranted.
[26]
There was also no reason on the evidence to
believe that if the applicant was simply given a warning, the problem
would be resolved.
He clearly did not accept his conduct in taking
the vehicle was wrong and there was no reason to believe a warning
would have any
corrective effect, because the applicant did not
accept the validity of the rule under which he was disciplined.
Likewise, he did
not accept that it was not sufficient that the
employer was simply reimbursed for damage done to equipment, in
circumstances where
the damage was caused recklessly.
[27]
The test for review based on rationality,
which is the most favourable interpretation of the inadequate grounds
of review
advanced by the applicant, has been expressed
summarily as follows by the LAC, which illustrates how far an
applicant needs to
go to succeed in a review application relying on
this approach:
“
[21]
Where the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable
decision.
Where the arbitrator fails to follow proper process he or she may
produce an unreasonable outcome (see Minister of Health
& another
NO v New Clicks SA (Pty) Ltd & others
2006 (2) SA 311
(CC)). But
again,
this
is considered on the totality of the evidence not on a fragmented,
piecemeal analysis. As soon as it is done in a piecemeal
fashion, the
evaluation of the decision arrived at by the arbitrator assumes the
form of an appea
l.
A fragmented analysis rather than a broad based evaluation of the
totality of the evidence defeats review as a process.
It
follows that the argument that the failure to have regard to material
facts may potentially result in a wrong decision has no
place in
review applications
.
Failure to have regard to material facts must actually defeat the
constitutional imperative that the award must be rational and
reasonable — there is no room for conjecture and guesswork.”
[5]
[28]
Even on a very indulgent assessment of the
applicant’s grounds of review, he has not met the threshold set
by the LAC in showing
any failures in the arbitrator’s
reasoning he complains of which would have necessarily altered the
outcome if they had not
been made. As mentioned, if the ‘grounds
of review’ as set out by the applicant had been prepared by a
legal professional,
they would probably have been rejected out of
hand as not settling out recognised grounds of review.
[29]
Despite the applicant’s lack of
success, given his financial circumstances and that he conducted the
review himself, it would
not be appropriate to award costs against
him in these proceedings.
Order
[30]
The applicant’s review application is
dismissed.
[31]
No order is made as to costs.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person
FIRST
RESPONDENT:
D
Morgan of David Morgan
Attorneys
[1]
See
Avril
Elizabeth Home for the Mentally Handicapped v Commission for
Conciliation, Mediation & Arbitration & others
(2006)
27
ILJ
1644 (LC)
at
1654F-H where Van Niekerk J made the following comment about
employers who follow formal procedures :
”
This
is not to say that employers and unions cannot agree to retain
the
criminal
justice
model if they are so inclined, whether by way of a collective
agreement (as was the case in
MEC:
Dept of Finance, Economic Affairs & Tourism, Northern Province v
Mahumani
(2004)
25 ILJ 2311 (SCA)
;
[2005] 2 BLLR 173
(SCA)) or by
way
of a contract of employment or employment policies and practices. In
this instance,
employers
are obviously bound to apply the standards
to which they have agreed or
that
they have established
.”
(emphasis
added)
[2]
See
Anglo
American Farms t/a Boschendal Restaurant v Komjway
o
(1992)
13
ILJ
573 (LAC)
at
583C-F on the unavoidable practicalities of prior contact
between parties in an internal enquiry, which alone cannot justify
an allegation of bias.
[3]
See
National
Union of Mineworkers on behalf of Employees v Grogan NO &
another
(2010) 31
ILJ
1618 (LAC)
at 1641-2 where the Labour Appeal Court stated the folllowing:
“
[35]
Counsel for the appellant attacked the audit that has been referred
to above on the basis that since it was conducted in
secret without
the appellant or dismissed employees being represented there, the
subsequent dismissal was procedurally unfair
and the arbitrator's
failure to so hold was unjustifiable and/or unreasonable. In my view
there is no basis for this attack on
the audit. The audit was part
of an investigation that the employer conducted before it could take
a decision whether or not
there were reasonable grounds to initiate
disciplinary charges against the relevant employees.
The audi
alteram partem rule had no application at that stage. The employees
would be given an opportunity to be heard in subsequent
disciplinary
enquiries
. At that stage the affected employees would have an
opportunity to do their own audit in order to be able effectively to
challenge
at the disciplinary enquiries the findings made pursuant
to the employer's secret audit. In the light of this I reject the
appellant's
contention that the
arbitrator's
failure to find that the employees were entitled to attend the audit
was unjustifiable or unreasonable or constituted
a gross
irregularity.”
(emphasis
added)
[4]
See
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008) 29
ILJ
964 (LAC)
where the Labour Appeal Court stated :
‘
[40]
…. The reason why, generally speaking, an employee is not
obliged to attend his disciplinary hearing is that a disciplinary
hearing is there to comply with the audi alteram partem rule before
the employer may take a decision that may affect the employee
or his
rights or interests adversely. An employee can make use of that
right if he so chooses but he can also decide not to exercise
it.
However, if he decides not to exercise that right after he has been
afforded an opportunity to exercise it and a decision
is
subsequently taken by the employer that affects him in an adverse
manner, he cannot be heard to complain that he was not afforded
an
opportunity to be heard.
[41].
The fear that the employer may take an adverse decision against the
employee without the employee stating his side of the
story is the
reason why employees normally attend their disciplinary hearings.
All an employer can do, if an employee fails to
attend his
disciplinary enquiry, is to proceed with the disciplinary enquiry in
the employee's absence and make such decision
as he considers to be
right in the light of all the evidence before him.’
[5]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
(2014) 35
ILJ
943 (LAC)
at 950