About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 371
|
|
Swissport SA (Pty) Ltd v Seanego and Others (JR664/15) [2017] ZALCJHB 371 (10 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR664/15
In
the matter between:
SWISSPORT
SA (PTY) LTD
Applicant
and
SUANE
RAYMOND SEANEGO
First Respondent
NKULULEKO
ZULU
Second Respondent
NATIONAL
TRANSPORT MOVEMENT (“NTM”)
Third Respondent
LANCE
CELLIER N.O.
(ARBITRATOR)
Fourth Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Fifth Respondent
Heard:
20 July 2017
Delivered:
10 October 2017
Summary:
The Applicant sought to review and set aside an award of the Fourth
Respondent on the basis that
the outcome was unreasonable.
JUDGMENT
HUTCHINSON
AJ
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act
[1]
(LRA) to review
and set aside an arbitration award of the Fourth Respondent.
[2]
The Applicant is a ground handler that operates under license for a
range of Airlines in the Aviation Industry at all major
airports
throughout South Africa. The Applicant operates at a National Key
Point that is operated in its entirety in the Airports
Company of
South Africa (ACSA) which is subject to the National Key Point
Act
[2]
.
[3]
The First and Second Respondents were employed as a baggage driver
and a baggage sorter respectively. The Applicant and ACSA
have
concluded a Service Level Agreement (SLA) that governs the terms upon
which the Applicant is required to employ its staff
and similarly
upon which ACSA is entitled to restrict and/or refuse entry.
[3]
[4]
In order for the First and Second Respondents to carry out their
duties, it is a requirement that they be allowed access in
and out of
the Airport, which access is solely governed by ACSA.
[4]
In terms of clause 5.5 of the SLA, the Applicant is bound to comply
with the terms of ACSA’s access control policy. A material
breach of the agreement could give rise to a cancellation of the
contract which would ultimately lead to the Applicant losing its
largest customer namely SAA. In the event of ACSA deciding to
terminate the access permit of any staff member of the Applicant,
he
or she will be prohibited from entering the airport.
[5]
On or about 6 October 2014, ACSA revoked the permits of the First and
Second Respondents and thereby refused them access to
the premises.
The permits were revoked by ACSA on the suspicion that the First and
Second Respondents were intoxicated at the time.
The Applicant
maintains that it was incumbent on the First and Second Respondents
to discuss the revocation with ACSA and “
challenge
ACSA to either return the permits or to follow the ACSA internal
policy of appealing any decision to withdraw the permit.”
[5]
[6]
On 10 October 2014, the Applicant sent a letter to the First and
Second Respondents advising them of the following:
“
Please note
that Swissport South Africa would like to give you up till Wednesday,
15 October 2014 to get your permit back which
was confiscated by
Airport Authorities on 06 October 2014 for allegedly being in
possession of alcohol on the airside (restricted
area). During this
period we expect you to update us with all the relevant information.
The company will support you and give
you all the assistant you need to get your permit back as we value
your contribution to the
company but please do not treat this as any
expectation and/or guarantee from the company to get you your permit
as this merely
to assist you in getting your job or permit back.
Please note that any form of communication with you or any other
party in this
regard is expected to be done in writing due to the
fact that Swissport SA operate within the national key point,
therefore it
cannot be taken for granted.
Please
note that no work no pay rule will apply.”
[6]
[7]
According to the Applicant, the First and Second Respondents took no
steps to approach ACSA with a view to obtaining a restoration
of
their permits. Pursuant thereto, on or about 22 October 2014, they
were issued with a notification to attend a hearing to answer
to the
following allegation:
“
Incapacity
hearing on that 05 October 2014 you were drinking alcohol at work and
when they wanted to do test for the alcohol you
run out of the
working place and the permit was confiscation by Airport Company
South Africa (ACSA) on the 06 October 2014. And
on that you can’t
perform your duties.”
[7]
[8]
The First and Second Respondents’ employment was terminated on
the basis of supervening impossibility of performance.
Pursuant
thereto, the Third Respondent referred an alleged unfair dismissal
dispute to the Fifth Respondent. The Fourth Respondent
was appointed
under the auspices of the Fifth Respondent to arbitrate the dispute.
Award
of the Fourth Respondent
[9]
The Fourth Respondent referred to the matter of
FAWU
obo Meyer v Rainbow Chickens
[8]
wherein
it was held that the dismissal of a chicken slaughterer who could not
perform his duties after his accreditation to slaughter
was withdrawn
by the Muslim Judicial Council was justified. The Fourth Respondent
went on to state:
“
(16)
The parallels in the matter before me are obvious, but I do however
have a number of concerns.
”
[9]
[10]
The Fourth Respondent further held that the First Respondent had
testified that they required correspondence from the Applicant
but
their subsequent request to one Marebe, an HR official, was rejected.
Moreover, they could not approach ACSA’s security
service
provider because they needed a permit to enter into that part of the
airport. At the incapacity hearing, they voiced their
request for
company assistance.
[11]
The Fourth Respondent held that as a reasonable employer, the
Applicant should have itself investigated the alcohol related
incident. Moreover, the Applicant should have assisted the First and
Second Respondents when they approached Marebe. At the incapacity
hearing, the Applicant should have also taken up the opportunity to
approach ACSA. The Applicant did not conduct an investigation
to
determine whether the permits were confiscated for a “
vindictive
and totally unjustifiable reason.”
[10]
The Fourth Respondent maintained that the dismissals for incapacity
could have been avoided had the Applicant made some effort
to
establish the reasons for the cause of the incapacity.
[12]
Notwithstanding the aforegoing, the Fourth Respondent recorded the
following:
“
The
respondent throughout has stressed that had the applicants requested
assistance
in
writing
to have their permits returned, they would have done so. Fransch was
unable to suggest any manner in which the respondent could
have
assisted. Struwig argued that they are in no position to dictate to
ACSA, and they have no influence over RAPS. I am thus
at a loss as to
what precisely the respondent would have done had they received a
written request. Perhaps they would have responded
in writing per
Struwig’s testimony”.
[11]
[13]
The Fourth Respondent further reasoned as follows:
“
22)
The obligation and requirement for persons on ACSA’s premises
to be in the possession of a valid ACSA-issued
permit was detailed by
Struwig, has merit and is not contested. The respondent suggested
that if ACSA withdraws a permit then the
`supervening impossibility
of performance’ applies and a dismissal for incapacity is
justified. I do not necessarily agree.
If an actual or implied term
of either respondent’s SLA with ACSA, or their contract of
employment with an employee provides
for an employee’s unfair
dismissal brought about directly by an organisation other than the
employer, then this surely would
be contrary to public policy and
without legal effect. The matter
Nape
v INTCS Corporate Solutions (Pty) Ltd
[2010] 8 BLLR 852
(LC) has reference.”
[12]
[14]
As to the appropriate relief, the Fourth Respondent determined that
the First and Second Respondents should be reinstated with
retrospective effect and added “
On their return to work, the
respondent ought to retrieve their permits from ACSA/RAPS or, if not
possible, to deal with the reason
behind the 6 October 2014
confiscation of the permits.”
Discussion
[15]
The Fourth Respondent did not make any finding to the effect that the
Applicant could have offered the First and Second Respondents
alternative positions offsite.
[16]
In the case of
SA
Private Security Workers Union on behalf of Nomavila and Bosasa
Operations (Pty) Ltd
[13]
the
Applicant was a security officer working at OR Tambo International
Airport. She was alleged to have committed misconduct and
ACSA
withdrew her permit. After discussing various authorities on the
issue of incapacity arising out of a supervening impossibility
of
performance event, the Commissioner went on to state the following:
“
[27]
I am satisfied that the matter
before me involves incapacity through a permanent impossibility of
performance as a result of a supervening
factor such factor not being
caused or created by either the employee or the employer.”
[17]
The Commissioner nevertheless found that the dismissal was unfair
because the employer made little or no effort to place the
Applicant
in a post outside the airport, in one of its other operations.
[18]
The uncontested evidence before the Fourth Respondent clearly
indicated that ACSA was entitled to revoke the permits of staff
members in its absolute discretion. There was nothing to suggest that
the revocation was
mala fide
or for an arbitrary reason. The
version of the First and Second Respondent that the clock card
machine was not working when they
clocked out is unconvincing. A
reasonable suspicion existed that they were under the influence of
intoxicating liquor and refused
to take a breathalyser test. It was a
matter of pure speculation as to whether the Applicant could have
convinced ACSA to restore
the permits.
[19]
Since SAA was the Applicant’s largest client, there were
clearly limitations to the extent that it could confront the
former
over the revocation of the permits. ACSA in its own right is under a
legal duty to ensure that its own policies are strictly
upheld. The
entire safety and security of the airport would be compromised if
ACSA were to willy-nilly restore confiscated permits.
[20]
The First and Second Respondents’ refusal to acknowledge any
wrongdoing, further complicated the matter. Accordingly,
it was not a
case where ACSA could have been approached on the basis that it
should give the First and Second Respondent’s
a second chance.
[21]
For the above reasons, I am satisfied that a proper case has been
made for reviewing and setting aside the award of the Fourth
Respondent. In my view, no purpose would be served in referring the
matter back to the Fifth Respondent to be arbitrated afresh.
I am in
possession of a full record and have had the benefit of considering
the heads of argument that have been delivered by the
parties.
[22]
Accordingly, I make the following order:
Order
1.
The award of the Fourth
Respondent under case number GAEK9038-14 is reviewed and set aside
and replaced with an order that the dismissal
of the First and Second
Respondents was for a fair reason and in compliance with a fair
procedure.
2.
There is no order as to
costs
______________________
WJ
Hutchinson
Acting
Judge of the Labour Court
Appearances
For
the Applicant:
Adv. E Steenkamp
Instructed
by:
Jacobs Gonyora
For
the Third Respondent:
Ephraim Mphalele of the Union.
[1]
Act
66 of 1995 (as amended).
[2]
Act
102 of 1980
[3]
Founding
affidavit 12 at para 21
[4]
Founding
affidavit 12 at para 22
[5]
Founding
affidavit 15 at para 33
[6]
Index
of pleadings 41
[7]
Index
of pleadings 43
[8]
[2003]
2 BALR 140 (CCMA)
[9]
Index of
pleadings 29 at para 16
[10]
Index
of pleadings 30 at para 20
[11]
Index
of pleadings 29 at para 16
[12]
Index
of pleadings 30
[13]
(2016) 37 ILJ
2172 (CCMA)