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[2017] ZALCJHB 219
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Barloworld Equipment SA v Love (JR1636/15) [2017] ZALCJHB 219 (17 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1636/15
In
the matter between:
BARLOWORLD
EQUIPMENT SA
Applicant
And
NICK LOVE
Respondent
DATE
HEARD: 23 March 2017
DATE DELIVERED: 23 March 2017
DATE EDITED: 17 May 2017
EX-TEMPORE
J U D G M E N T
MOSHOANA,
J
: In this matter I
am going to give judgment and if there are further reasons to be
given I would provide the
parties with such reasons upon request.
This
is an application in terms of Section 145 of the Labour Relations Act
in terms of which the applicant before me Barloworld
Equipment is
seeking to review and set aside an award issued by the 2
nd
respondent in favour of the 3
rd
respondent. The review application is opposed by the 3
rd
respondent only.
The
facts relevant to this matter can be summarized as follows. The
3
rd
respondent was employed as a Commercial Manager as at the time of his
dismissal. On the 4
th
of December 2014 an incident had occurred which led to a picture
being taken by the 3
rd
respondent using a cell phone camera. The dispute as it will
become apparent later in this judgment was whether the picture
that
was taken was that of the backside of a fellow employee or as Mr
Love, the 3
rd
respondent had indicated, was intended to take two other employees as
well.
Nonetheless
the fellow employee, Ms Mhinga was apparently aggrieved by the
conduct and lodged a grievance. Owing to the fact that
there was no
apology, the 3
rd
respondent was then arraigned for sexual harassment.
The
charge that the 3
rd
respondent faced reads as follows,
“
Sexual
harassment in that on or about the 4
th
of December 2014 you allegedly captured a photo of your colleague
namely
Pengentani Mhinga’s
backside
on your phone in the
presence of two other colleagues without permission and/or consent
thereby humiliating her and failing to
respect the rights of others
in the workplace.”
[Emphasis
added]
The
3
rd
respondent was charged as such found guilty and
dismissed. Aggrieved by his dismissal he then referred a
dispute of unfair
dismissal to the 1
st
respondent.
The
1
st
respondent appointed the 2
nd
respondent to resolve the dispute through arbitration. As
pointed out earlier a favourable award was then issued for the
3
rd
respondent.
The
applicant before me was then aggrieved by the award and launched the
present application. The grounds of the review application
before me can be summarized as follows as it is apparent from the
founding papers. The 2
nd
respondent had misdirected himself, he took a narrow definition of
sexual impropriety or sexual misconduct. He misdirected
himself
by making inferences. He overlooked the evidence of Nokwanda that the
picture of the three employees as alleged by Mr Love
was impossible
given the angle. For full and proper recordal of the grounds regard
should be had to the founding affidavit.
Before
I deal with the review itself it is important to reflect on the
following, which appears to be the accepted principles relating
to
reviews in this court. A review is not an appeal, what the
court considers in a review application is whether a decision
arrived
at is one that a Commissioner would have arrived at given the
evidence that was before the Commissioner.
A
further consideration is the following. When a Commissioner
considers the fairness of the dismissal other than looking at
dismissal as a sanction itself would have to determine the guilt of
the employee. In other words if the employee is being
charged
and dismissed for a specific offence, the employer, if challenged,
would have to show that the said offence has been committed
and in
that manner it is justifying as it were the decision to dismiss.
Such was confirmed by the Constitutional Court in
the matter of
Toyota
SA Motors (Pty) Ltd v CCMA and others
[1]
.
The
applicant before me was challenged to show the fairness of its
dismissal. One of the issues that was placed before the
Commissioner was the following. At page 441 of the transcript
Mr Soldatis, who represented the applicant at arbitration stated
the
following,
“
The
fundamental issue in debate over here is whether the, in fact the
applicant took the photograph in respect of which the charge
was
formulated against him and in respect of which it resulted in him
being dismissed.”
Clearly
and correctly so Mr Soldatis was stating to the Commissioner that the
applicant was going to show that the employee was
actually guilty as
charged and therefore substantively it had the reason to have the
employee dismissed.
It
is common cause and it was common cause before the Commissioner that
the picture that is reflecting the backside as alleged was
never
presented as part of evidence. Accordingly the 2
nd
respondent was faced with two conflicting versions as there was no
picture that would have clearly reflected that the backside
was
taken.
To
my mind the only evidence that could have possibly led to a
conclusion that the conduct was an unwarranted conduct of a sexual
nature was the photograph itself. Unfortunately such piece of
evidence was not there.
The
law is very clear that when a trier of facts is faced with two
conflicting versions, the trier of facts must weigh the evidence
that
is before him or her with a view to arrive at a probable version.
Contradictions are one of the issues that would arise
in that process
of weighing up. I must point out that once a credibility
finding is made it does not necessarily follow that
such evidence
would be rejected.
However
in this matter, the arbitrator made it very clear that he is not
rejecting any of the versions and that much is clear from
his award
but in the course of trying to find the probabilities he then
considered all the material that was before him and picked
up that
certain pieces of evidence that reflects that the backside was taken
was improbable.
The
onus to show that a dismissal is fair lies on the employer, the
applicant before me. Section 192 of the Labour Relations
Act is
very clear in that regard. Now it was for the applicant to
prove on a balance of probabilities that firstly Mr Love
is guilty as
charged and therefore he was supposed to be dismissed.
To
my mind there is nothing wrong in the Commissioner faced with the
difficulty of weighing up evidence comparing some evidence
that was
presented elsewhere with what was before him with the sole purpose of
determining what the possible truth is. It
is the duty of the
Commissioner to determine the fairness of a dismissal. Section
138 does provide that he ought to do so
fairly and quickly.
The
issue relating to the manner in which the court of review should deal
with reviews has been clearly defined in the
Goldfield’s
judgment and that is whether the principal issue to be determined was
determined and the parties were given an opportunity to present
their
evidence in order for the Commissioner to arrive at a decision that
falls within the bounds of reasonableness. It is
not that the
Commissioner must issue a correct award, the test is very simple, a
decision ought to fall within the bounds of reasonableness
given the
evidence that was before the Commissioner.
Such
suggests that there could be other decisions for an example as a
court of review, I could have arrived at a different conclusion
on
certain aspects, but that is not the test because that goes to the
wrongfulness or the rightness of the decision. That
is, if on
the evidence that was before the arbitrator a conclusion that is
arrived at falls within the bounds of reasonableness
then my hands
are tied. In an appeal situation one would have probably been
given the leeway to interfere as much as he could.
Accordingly
in my mind with the evidence that was before the Commissioner there
is nothing that I could do or there is nothing that
could lead me to
the conclusion that the decision does not fall within the bounds of
reasonableness. In the result I come
to the following
conclusion.
The
review application is dismissed. The applicant is to pay the
costs.
_____________________
G
Moshoana
Acting
Judge of the Labour Court
TRANSCRIBER’S
CERTIFICATE
This
is to certify that,
insofar as it is audible
, the aforegoing
is a true and correct transcript of the proceedings recorded by means
of a mechanical recorder in the matter of:
BARLOWORLD
EQUIPMENT SA
v
NICK LOVE
CASE
NUMBER: JR1636/2015
RECORDED
AT: JOHANNESBURG
DATE
HELD: 2017-03-23
TRANSCRIBER: LIESEL
ENGELBRECHT
DATE
COMPLETED: 2017-04-06
NUMBER
OF CD/audio files:
NUMBER
OF PAGES: 6
REPORT
ON RECORDING
I hereby declare that all
witnesses/accused in these proceedings have been dully sworn in
(d.s.s) by the prosecute or
court, before testifying before
court.
DIGITAL AUDIO
RECORDING TRANSCRIPTIONS
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5, Suite 1/G
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Menlyn
[1]
2016 (3) BCLR 217
(CC)