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[2017] ZALCJHB 386
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Road Traffic Management Corporation v Commission for Conciliation, Mediation and Arbitration and Others (JR06/16) [2017] ZALCJHB 386; (2018) 39 ILJ 887 (LC) (19 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JR 06/16
In
the matter between:
ROAD
TRAFFIC MANAGEMENT
CORPORATION
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
ELSABE
HARMSE
N.O
Second Respondent
B
MOTJOTOA
Third
Respondent
Heard:
12 October 2017
Delivered:
19 October 2017
Summary:
Review of an award ordering the payment of compensation. Single
ground for review relates to the amount of compensation awarded.
Discretion the court is not to interfere with unless the arbitrator
acted capriciously or biased or upon a wrong principle or
not for a
substantial reason
or
adopted an incorrect approach. No case is made out to justify
interference in the discretion that was exercised.
JUDGMENT
PRINSLOO. J
Introduction
[1]
The
Applicant seeks to review and set aside an arbitration award issued
on 15 October 2015 wherein the Second Respondent (the arbitrator)
found the Third Respondent’s dismissal substantively and
procedurally unfair and ordered the Applicant to pay him compensation
equivalent to ten months’ remuneration. In the notice of
motion, the relief sought was for an order to substitute the award
with an order that the dismissal was procedurally and substantively
fair. However, the Applicant did not challenge the arbitrator’s
findings on substantive and procedural fairness and effectively
sought only a reduction of the amount of compensation awarded.
[2]
The
Third Respondent (the employee) opposed the application.
Background facts
[3]
The
employee applied for a position of senior inspector, for which
position he was interviewed. During the interview the employee
disclosed that he was dismissed by his previous employer, the
Rustenburg Municipality due to strike related misconduct. After the
interview the Applicant appointed Siyaya Placements to do a
background check on the employee and on 24 April 2015 the employee
signed the consent form wherein he gave Siyaya Placements a mandate
and consent to verify certain information including qualifications,
criminal record and other personal information.
[4]
On 8
May 2015 the Applicant issued an offer of appointment as senior
inspector to the employee, subject to the verification of educational
qualifications, citizenship, criminal record, reference checks,
security vetting and any matter that might be considered to be
materially defective.
[5]
On 9
May 2015 the employee accepted the offer, subject to the verification
of the aforesaid factors and indicated that his date
of assumption of
duty would be 1 June 2015. The employee resigned from his position as
security supervisor at Momentus Energy on
13 May 2015 to take up
employment with the Applicant on 1 June 2015.
[6]
The
employee’s version was that he went through all the vetting
procedures required by the Applicant and when he received
the formal
offer of employment on 8 May 2015, he accepted all to be in order.
[7]
On 29
May 2015 the Applicant addressed another letter to the employee
wherein his letter of appointment was nullified because the
Rustenburg Municipality confirmed on 28 May 2015 that the employee
was dismissed for unacceptable conduct in that he failed to
provide
supervisory advice to his colleagues so that they may not embark on
illegal unprotected strike action as well as entering
the premises
without permission.
[8]
The
employee referred an unfair dismissal dispute to the First Respondent
Commission for Conciliation, Mediation and Arbitration
(CCMA) and the
matter was arbitrated on 10 September and 14 October 2015. The issue
to be decided was whether the employee’s
dismissal was
procedurally and substantively fair or not and if not, the
appropriate remedy to be awarded to him.
The arbitrator’s findings and
grounds for review
[9]
In
respect of procedural fairness, the arbitrator found that the
Applicant failed to conduct a proper investigation into the factual
circumstances of the employee’s case, no charges were
formulated, no hearing whatsoever was held and the Applicant did not
follow due process before dismissing the employee. The employee’s
dismissal was found to be procedurally unfair.
[10]
In
this review application the Applicant takes no issue with the
arbitrator’s finding that the employee was procedurally
unfairly dismissed.
[11]
In
respect of substantive fairness, the arbitrator found that the
employee complied with what was expected or required of him to
do in
terms of the contract and the law and the fact that he did not
provide the Applicant with the full particulars of his pending
Labour
Court case or the full transcript of his disciplinary hearing, which
was not in his possession, did not amount to a material
non-disclosure. There was no secret or new information pertinent to
the employee’s previous dismissal which was unknown to
the
Applicant. The arbitrator further held that if the Applicant treated
this matter as serious as it wanted the arbitrator to
believe it was,
it would not in the first place have made an offer of employment to
the employee.
[12]
The
arbitrator found the employee’s dismissal substantively unfair
as the Applicant failed to prove that it had a valid reason
to
dismiss the employee and did not adduce any evidence to justify his
dismissal.
[13]
The
Applicant also takes no issue with the arbitrator’s finding
that the employee was substantively unfairly dismissed.
[14]
The
only ground for review raised by the Applicant is in respect of the
compensation awarded.
[15]
The
arbitrator ordered the Applicant to pay the employee compensation
equivalent to ten months’ compensation, after she found
his
dismissal substantively and procedurally unfair. The arbitrator
considered that the employee resigned from his previous employment
to
start working for the Applicant and that he was in a far worse off
position due to the Applicant’s conduct. The arbitrator
considered the fact that the employee suffered severe prejudice as a
result of what transpired. In her summary of the employee’s
evidence the arbitrator recorded his version that the situation had a
negative impact on him, that it caused him stress and that
he became
ill as a result of it.
[16]
The
arbitrator took a dim view of the Applicant’s abhorrent and
unlawful conduct and the total disregard for the law, with
specific
reference to the Labour Relations Act (the Act)
[1]
.
[17]
The
Applicant’s only ground for review is that the arbitrator
committed gross misconduct in the execution of her duties in
that she
failed to take into account the relevant factors in deciding just and
equitable compensation and she failed to apply her
mind to the
justness and equitability of compensation when she awarded ten
months’ compensation.
[18]
The
one part of the ground for review is that the arbitrator failed to
take into account relevant factors in deciding just and equitable
compensation. In the heads of argument filed by the Applicant it was
submitted that the employee was not entitled to a
solatium
for
his injured feeling and humiliation suffered at the hands of the
Applicant as there was no evidence from the employee to support
such
a finding and in the absence of any such evidence, the arbitration
award stands to be set aside.
[19]
In
argument before this Court Mr Botha for the Applicant correctly
conceded that upon a perusal of the transcribed record and the
arbitration award, there is no merit in the allegation that there was
no evidence adduced in respect of the employee’s suffering
and
that the arbitrator did not consider relevant factors. It is evident
that the evidence was indeed adduced and that the arbitrator
considered the relevant factors.
[20]
Mr
Botha persisted with the second part of the ground for review namely
that the arbitrator failed to apply her mind to the justness
and
equitability of compensation when she awarded ten months’
compensation. Mr Botha conceded that since the employee’s
dismissal was substantively and procedurally unfair, he was indeed
entitled to compensation, but ten months’ compensation
is too
much. The Applicant is of the view that the employee was entitled to
compensation of 3 – 5 months’ remuneration.
The test to be applied
[21]
Section
194 of the Act provides for an arbitrator to award compensation in
the event that an employee’s dismissal is found
to be unfair
and for such compensation to be just and equitable in all the
circumstances and not to exceed 12 months’ remuneration.
[22]
It is
trite that an arbitrator has a discretion in awarding compensation,
taking into consideration all the circumstances and that
this
discretion is a discretion in the strict sense, also known as a true
discretion.
[23]
In
Fouldien
and others v House of Trucks (Pty) Ltd
[2]
it was held that:
'The
right to compensation is a contingent right which rests on the
finding regarding the substantive and procedural fairness of
a
dismissal. It is a discretionary remedy, although it is hedged by
limitations on the quantum which can be ordered. It is, of
course, a
discretion which must be exercised judicially.'
[24]
The
question is when can this Court interfere with the true discretion
the arbitrator exercised when she determined the quantum
of
compensation awarded.
[25]
In
Dr
DC Kemp t/a Centralmed v Rawlins
[3]
Waglay JA (as he then was) held that:
‘
The
importance if the distinction between a discretion that is exercised
in terms of section 193(1)(c) and a discretion that is
exercised in
terms of section 194(1) is how the reviewing court will consider the
matter. When the discretion that is challenged
is a discretion such
as the one exercised in terms of section 194(1) the test that the
court, called upon to interfere with the
discretion, will apply is to
evaluate whether the decision maker acted capriciously, or upon the
wrong principle, or with bias,
or whether or not the discretion
exercised was based on substantial reasons or whether or not the
decision maker adopted an incorrect
approach’.
[26]
In
MEC
for Environmental Affairs and Development Planning v Clairison’s
CC
[4]
the
Supreme Court of Appeal described the test that applies to the review
of a discretion as follows:
‘
When
the law entrusts a functionary with a discretion it means just that:
the law gives recognition to the evaluation made by the
functionary
to whom the discretion is entrusted, and it is not open to a court to
second-guess his evaluation. The role of a court
is no more than to
ensure that the decision-maker has performed the function with which
he was entrusted.
……
.
The law remains, as we see it, that when a functionary is entrusted
with a discretion, the weight to be attached to particular
factors,
or how a particular factor affects the eventual determination of the
issue, is a matter for the functionary to decide,
and as he acts in
good faith (and reasonably and rationally) a court of law cannot
interfere’.
[27]
In
short, provided the decision-maker acted in good faith, the threshold
for interference is substantive unreasonableness
[5]
,
as per the test set out in
Sidumo
v Rustenburg Platinum Mines Ltd and others
[6]
.
[28]
In
its review application the Applicant did no more than to make a bold
and unsubstantiated allegation that the arbitrator failed
to take
into account relevant factors in deciding just and equitable
compensation, which Mr Botha conceded was without merit.
[29]
The
remaining case is nothing but a suggestion that compensation of ten
months is too much. Whether the amount of compensation awarded
is
unacceptable to the Applicant is irrelevant as the true enquiry is
whether the arbitrator exercised her discretion judicially.
[30]
It is
trite that the courts should not too readily interfere with the
quantum of compensation where the quantum was determined by
the
exercising of a discretion. However, in cases where the discretion
was not exercised judicially or where it was exercised capriciously
or biased or based on the wrong principle or approach or not for a
substantial reason, the court may interfere.
[31]
In
the application before this Court the Applicant did not make a single
averment to the effect that the arbitrator acted capriciously,
or
upon the wrong principle, or with bias, or that the arbitrator
adopted an incorrect approach. All that is evident from the
application before me is the Applicant’s unhappiness that it
was ordered to pay ten months’ remuneration as compensation.
[32]
In
casu
the
arbitrator was faced with a case where the employer followed no
process and afforded the employee no opportunity to be heard
before
he was dismissed. Furthermore, the Applicant was aware that the
employee was dismissed for strike related misconduct and
after he was
interviewed in March 2015, a vetting and checking process was
followed where after an offer was made to the employee
in May 2015.
The employee resigned from his job to take up the offer and a few
days before he was to assume duty, he was dismissed.
[33]
The
employee testified about the fact that he was devastated and almost
lost everything because of the conduct of the Applicant.
The
arbitrator considered that there was no attempt whatsoever to comply
with the Act, in fact the Applicant showed a total disregard
for the
law and acted in an abhorrent manner.
[34]
The
Applicant and its officials who acted in this manner when dealing
with the employee, disregarded the applicable laws and the
basic
principles of fairness and they are to be blamed for the outcome of
this matter.
The
right to compensation is a contingent right that follows when an
employee is dismissed unfairly and this should have been considered
by the Applicant before dismissing the employee in the manner it did.
[35]
The
Applicant is opportunistic to approach this Court to seek a reduction
of the compensation awarded. In fact, this application
is an
abuse of process, more so where the Applicant dismally failed to make
the necessary averments to support its case and where
it made out no
case for this Court to interfere in the discretion the arbitrator
exercised.
[36]
Considering
the facts, the only ground for the review and the applicable
principles, I am not persuaded that this Court should interfere
with
the discretion exercised by the arbitrator and the award is not to be
reviewed for want of reasonableness.
Costs
[37]
Mr
Botha initially submitted that the issue of cost was left in the
hands of the Court, but later submitted that the cost should
not
follow the result. Mr Botha was unable to say why the cost should not
follow the result.
[38]
Mr
Mokonyama
for the employee
submitted that the Applicant should be ordered to pay the cost. Mr
Mokonyama submitted that the Applicant came
to Court on one ground
for review only, in Court conceded that there was no merit in the
allegations made and the Applicant’s
only remaining concern was
the amount of compensation awarded and in that regard the Applicant
was unable to attack the discretion
the arbitrator exercised.
[39]
This
Court has a discretion in making a cost order, considering the
requirements of law and fairness. In my view this is a case
where
interests of justice and fairness would be served by following the
general rule that the cost should follow the result.
[40]
In
the premises I make the following order:
Order
1.
The
application
is dismissed with costs.
______________
Connie Prinsloo
Judge
of the Labour Court
Appearances:
For the Applicant:
Advocate P
Botha
Instructed by:
Mohlaba & Moshoana Inc Attorneys
For
the Third Respondent:
Mr O Mokonyama of Makgale Ngwasheng
Attorneys
[1]
Act 66 of 1995 as
amended.
[2]
(2002)
23 ILJ 2259 (LC)
at
para 16.
[3]
[2009] 11 BLLR
1027 (LAC).
[4]
2013 (6) SA 235
(SCA) paras 18 and 20.
[5]
Reviews in the
Labour Court, A Myburgh and C Bosch, 2016 page 349 – 350.
[6]
[6]
2007 28 ILJ 2405 (CC) at para 110.