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[2017] ZALCJHB 509
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JDG Trading Pty Ltd t/a Barnetts v Mthukwane NO and Others (JR52/15) [2017] ZALCJHB 509 (25 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: JR 52/15
In
the matter between
JDG
TRADING PTY LTD T/A
BARNETTS
Applicant
and
MTHUKWANE,
J
N.O
First
Respondent
THE
COMMISSION FOR CONCILIATION
Second Respondent
MEDIATION
AND ARBITRATION
MAPHALLE,
J
Third Respondent
Heard: 19
July 2017
Delivered: 25
October 2017
Summary: The Review
application: The Third Respondent assaulted a member of public in the
Applicant’s shop. The Second Respondent
found that the Third
Respondent acted in self-defence. The award set aside as the Second
Respondent misapplied the principle of
self-defence. However,
Self-Defence can still be successfully pleaded in the employment
context and should not be equated with
a brawl.
JUDGMENT
MOLEBALOA
.
AJ.
Introduction
[1]
This is a
review application in terms of Section 145 of the Labour Relations
Act
[1]
, (the LRA). The Applicant
is seeking an order for the review and setting aside of the
arbitration award in case GATW 9003-14 dated
27 November 2014. The
award was issued by the First Respondent, Mthukwane J, (hereinafter
referred to as ‘the commissioner’)
who acted under the
auspices of the Second Respondent, the Commission for Conciliation,
Mediation and Arbitration (CCMA). The ultimate
order sought by the
Applicant is an order that the dismissal of the Third Respondent, J
Maphalle, be found to be substantively
fair, alternatively that the
matter be remitted to the CCMA to be determined afresh by a
commissioner other than the First Respondent.
Background
Facts
[2]
The Third
Respondent was dismissed for assaulting a customer on 09 July 2014 at
the Applicant’s premises during working hours
and for
disrespectful and abusive behaviour towards her manager on 07 July
2014 and 09 July 2014.
[3]
The brief
anecdote is as follows: The Third Respondent consumed by what seemed
like an uncontrollable determination to monitor calls
made to her
husband’s cellphone, started calling the numbers appearing on
her husband call list asking her recipients the
reasons they called
her husband. Shortly after such calls were made, one Cynthia,
accompanied by her mother, arrived at the shop
to confront the Third
Respondent about her persistent calls and why she was accusing her of
having a love affair with her husband.
The two were received by one
Ms. Seloi, the Third Respondent’s colleague. She then left the
Third Respondent with them following
Cynthia’s indication that
they came in to see the Third Respondent. On her way to the bathroom,
Ms Seloi heard a bang. When
she turned around, she noticed that the
Third Respondent and Cynthia were fighting. Cynthia was already on
the floor and the Third
Respondent was on top of her beating her. A
colleague and Cynthia’s mother tried to separate them by
dragging the Third Respondent
from the top of Cynthia. They could
not. A security officer had to be called to remove the Third
Respondent from the top of Cynthia.
[4]
The Third
Respondent however contended that she acted in self-defence as
Cynthia started assaulting her when she attempted to call
the police
upon realising that Cynthia was in the shop. She indicated that she
calmly told Cynthia to sit down when Cynthia started
assaulting her.
She did not hit back.
[5]
In respect
of a charge of disrespectful and abusive behaviour, the Third
Respondent, having screened her husband’s cellphone,
came
across a phone number which later emerged to be of one Ida, a
colleague working in the same shop with the Third Respondent.
She
dialled the number. The Third Respondent was overheard saying over
the phone: “Sies why are you calling my husband telling
him to
pray”. The Third Respondent indicated that at the time of
making the call she was not aware that she was speaking
to Ida. She
also denied making such utterances over the phone. She however
confirmed saying over the phone “you are a fool”
as
according to her it was foolish for the caller, who happened to be
Ida, to suggest that her husband was not praying when they
were a
prayerful family.
[6]
The Third
respondent was charged and dismissed for the two incidents. Unhappy
with the dismissal, she referred a dispute with the
Second
Respondent. The First Respondent, sitting as an arbitrator, found the
dismissal substantively unfair and ordered the Applicant
to reinstate
the Third Respondent with back pay.
The Arbitration Award
[7]
The nub of
the commissioner’s decision in respect of the charge of
disrespectful and abusive behaviour was that the comment
was fair. He
rejected the Applicant’s version that the Third Respondent said
“sies” to Ida. The basis of his
rejection is that Ida was
not called to corroborate Ms Seloi’s version. He however
accepted that the Third Respondent called
Ida a fool but because it
is a fair comment as it was said to dispel the notion from Ida that
they were not praying. The commissioner
continued to indicate that
even if he were to find the Third Respondent guilty of disrespecting
Ida, he would still found the sanction
of dismissal inappropriate in
the circumstances.
[8]
In respect
of the assault charge, the commissioner found that the Third
Respondent acted in self-defence. She was attacked by Cynthia
and her
mother and acted in response to the attack. He found that the Third
Respondent did not exceed the bounds of self-defence.
[9]
Having
found that the Third Respondent’s dismissal was unfair, the
commissioner ordered her reinstatement with back-pay. It
is this
award that is the subject of review.
The Review Application
[10]
The
Applicant cited numerous grounds in its attack of the award. A
careful analysis however shows that the Applicant contended that
the
award was unreasonable as the commissioner committed misconduct and /
or irregularity for arriving at the following conclusion
which was
not supported by the material evidence properly before him:
10.1
First Respondent’s conclusion that the evidence of Ms Seloi who
overheard the Third Respondent uttering
disrespectful and / or
abusive utterances as hearsay.
10.2
First Respondent’s conclusion that the utterances of the Third
Respondent constituted a fair comment.
10.3 First
Respondent’s conclusion that even if he were to find that the
Third Respondent was disrespectful,
the sanction of dismissal would
still be inappropriate.
10.4
First Respondent concluded that the Third Respondent did not assault
Cynthia but acted in self-defence.
The Legal Principles
[11]
For the
Applicant to succeed, it had to demonstrate that the decision reached
by the commissioner is one that a reasonable decision
maker could not
reach. This is an applicable test to the review applications.
[12]
In
Sidumo and Another v Rustenburg Platinum Mines Limited and Others
[2]
the Constitutional Court
held that the review grounds set out in section 145 of the LRA have
been suffused by the standard of reasonableness,
and that an
arbitration award of the CCMA / a bargaining council is reviewable if
the decision reached by the commissioner was
one that a reasonable
decision maker could not reach.
[13]
In
Andre
Herholdt v Nedbank Limited, (Congress of South African Trade Unions
as amicus curiae)
[3]
the Supreme Court of Appeal (the SCA) had an occasion to interpret
the grounds of review set out in section 145 of the LRA as developed
in the
Sidumo
Case. The SCA described the standard of review as follows:
“
In summary the position
regarding the review of CCMA award is this: A review of a CCMA award
is permissible if the defect in the
proceedings falls within one
grounds in section 145 (2) (a) of the LRA. For a defect in the
conduct of the proceedings to amount
to a gross irregularity as
contemplated by section 145 (2) (a) (ii), the arbitrator
must have misconceived the nature
of the inquiry or arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator
could not reach on all material that was
before the arbitrator. Material errors of fact, as well as the weight
and relevance to
be attached to particular facts, are not in and of
themselves sufficient for an award to be set aside, but are only of
any consequence
if their effect is to render the outcome
unreasonable.”
[14]
Accordingly,
the SCA, in effect, held that in order to establish the existence of
a gross irregularity as a basis for succeeding
with a review
application, it is necessary to demonstrate that either of the
following circumstances exist:
1.
The Commissioner misconceived the nature of the enquiry; or
2.
The result ultimately arrived at by the Commissioner was
unreasonable.
[15]
In
Gold
Fields Mining South Africa (PTY) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and other
[4]
the court introduced a two stage test for review. First there must be
an irregularity and second that irregularity must be material
to the
outcome.
[16]
The Court
in
Gold
Fields
also said the following at paragraphs 15 and
“
What is required is first to
consider the gross irregularity that the arbitrator is said to have
committed and then to apply the
reasonableness test established by
Sidumo
.
The gross irregularity is not a self standing ground insulated from
or standing independent of the
Sidumo
test. That being the case, it serves no purpose for the reviewing
court to consider and analyse every issue raised at the arbitration
and regard a failure by the arbitrator to consider all or some of the
issues albeit material as rendering the award liable to be
set aside
on the grounds of process review.
In short: A reviewing court must
ascertain whether the arbitrator considered the principle issue
before him/her; evaluated the facts
presented at the hearing and came
to a conclusion that is reasonable.”
[17]
In
Head
of the Department of Education v Mofokeng and others
[5]
(
Mofokeng
),
the Court stated the following at paragraph 33:
“
Irregularities or errors in
relation to the facts or issues, therefore, may or may not produce an
unreasonable outcome or provide
a compelling indication that the
arbitrator misconceived the enquiry. In the final analysis, it will
depend on the materiality
of the error or irregularity and its
relation to the result. Whether the irregularity or error is material
must be assessed and
determine with reference to the distorting
effect it may or may not have had upon the arbitrator’s
conception of the inquiry,
the delimitation of the issue to be
determined and the ultimate outcome. If but for an error or
irregularity a different outcome
would have resulted, it will ex
hypothesis be material to the determination of the dispute. A
material error of this order would
point to at least a prima facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision
in issue; the range of relevant
factors informing the decision, the nature of competing interest
impacted upon by the decision,
and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question
was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity
or error material to the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead
to no fair trial of the issues,
with the result that the award may be set aside on the grounds alone.
The arbitrator however must
be shown to have diverted from correct
path in the conduct of the arbitration and as a result failed to
address the question raised
for determination.
[18]
In
interpreting this case, the court in
Shoprite
Checkers v Commission for Conciliation, Mediation and Arbitration and
others
[6]
stated the following at paragraphs 9 and 10:
“
[9]
This dictum in
Mofokeng
says many important things about the review test. But for present
purposes, consideration need only be given to the guidance that
it
provides for determining when the failure by a Commissioner to
consider facts will be reviewable. The dictum provides for the
following mode of analysis:
(a)
The first enquiry is whether
the facts ignored were material, which
will
be the case if a consideration of them would (on probabilities) have
caused the Commissioner to come to a different result;
(b)
If this is established, the
(objectively wrong) result arrived at by the Commissioner is prima
facie unreasonable;
(c)
a second enquiry must then be
embarked upon-it being whether there exist a basis in the evidence
overall to displace the prima facie
case of unreasonableness, and
(d)
If the answer to this enquiry
is in the negative, then the award stands to be set aside on review
on the grounds of unreasonableness
(and vice versa).
[10] The
shorthand for all of this is the following: where a Commissioner
misdirects him or herself
by ignoring materials facts, the award will
be reviewable if the distorting effect of this misdirection was to
render the result
of the award unreasonable.”
[19]
Having
considered the above cases, it is axiomatic that it is the
reasonableness of the award that becomes a focal point of the
enquiry. There must be an error or irregularity as envisaged in
section 145 of the LRA. It is however not any error that vitiates
the
award. The error must be material enough to influence the result and
must therefore not be displaced even if the overall evidence
is taken
into account.
Evaluation
[20]
Coming back
to the facts of this case, I intend for now to zero in on the ground
relating to assault. I will decide later if there
will still be a
need to traverse other grounds of review. The reason for this
approach is that my finding on this assault incident
might be
dispositive to the whole award.
[21]
The
Applicant dismissed the Third Respondent, among others, for assault.
The Third Respondent contended that she acted in self-defence.
I
therefore have to determine whether or not the commissioner applied
the correct approach to evaluate the self-defence justification
as
pleaded by the Third Respondent. I am afraid he did not.
[22]
Mr. Snyman
argued that while it may be an appropriate basis to exonerate an
accused on the basis of self-defence in criminal basis,
it was not
entirely appropriate to exonerate an employee at the workplace on the
basis of self-defence. As he continued to argue,
he indicated that an
employee who acts in self-defence is still involved in a brawl which
is also a serious offence in the employment
law context.
[23]
I disagree.
Self-defence once proven constitutes a basis of exonerating an
employee at the work place. It is a complete defence.
Such a defence
is still applicable in our labour jurisprudence. Exonerating an
employee on self-defence but continue finding him
guilty for being
involved of a brawl negates the very protection of self-defence
available to an attacked employee. Regard should
be had that if the
defence could have been avoided, then such would no longer constitute
self-defence but an attack. The requirements
of self-defence are
trite. I intend not dissect the rest of the requirements that must be
proven for self-defence to be sustainable.
[24]
In this
case I deliberately started the focus on whether or not the Third
Respondent exceeded the bounds of self-defence. Obviously
to start at
this level means I have given, only for purposes of this argument, a
benefit to the Third Respondent that Cynthia started
the fight. It
will come to the fore somewhere in this judgment that such a benefit
was also quite generous.
[25]
Self-defence
can be exceeded and it is on this aspect that I need to find out if
the commissioner properly dealt with. It is trite
law that where a
defender uses more force that is reasonably necessary to repel an
attack, the defender would be guilty of assault
on the attacker and
the defender would not be able to rely on self-defence
[7]
.
Such was quoted with approval in the unreported case of
Rustenburg
Platinum Mines Limited v Mwachanda
[8]
.
[26]
Even though
it was not clear as to how the incident started, it is axiomatic that
the Third Respondent exceeded the bounds of self-defence.
The
unchallenged evidence is that she continued to beat Cynthia who was
lying on the floor. The Third Respondent sat on top of
her. First set
of people could not drag her from Cynthia. It was through the
security officer’s intervention that the Third
Respondent was
finally dragged from the top of a helpless Cynthia. She threatened to
beat Cynthia even after she was dragged off
her. The commissioner was
expected to apply the test of self-defence to this continual beating
of Cynthia more so that Cynthia
was lying on the floor while the
Third Respondent was on top of her. Nowhere in his award is the
commissioner seen dealing with
this aspect. It does not appear from
the reading of this award that the commissioner was aware that
self-defence can be exceeded.
He failed to apply the principle of
self-defence to the set of facts before him. This failure was
material as he could have found
that the Third Respondent’s
action amounted to assault had he properly applied the legal
principle relating to self-defence.
Once the bounds of self-defence
are exceeded, assault is committed. This was a material
misinterpretation and misapplication of
the law relating to
self-defence. The irregularity is material enough to warrant the
reviewing and the setting aside of this award.
[27]
I started
by giving the Third Respondent a benefit that it was Cynthia who
started assaulting the Third Respondent. I did so to
demonstrate that
even if I were to work on the Third Respondent’s version alone,
the award would still be unsustainable.
I am now tempted even to
withdraw the benefit I have earlier given to the Third Respondent.
[28]
The
explanation proffered by the Third Respondent on how she was attacked
by Cynthia is improbable. She indicated that she was assaulted
while
making a call. She, in response, calmly told Cynthia to sit down. In
her explanation she never asked why Cynthia was assaulting
her. She
only said she must sit down. I find this explanation problematic.
Under normal circumstances, she would have asked Cynthia
why she was
assaulting her. The Third Respondent was thus economical on how the
fight started. This is exacerbated by the fact
that Ms Seloi who was
in the shop with the Third Respondent testified that the fight or
assault started when she was on her way
to the bathroom. She heard a
bang and when she turned the Third Respondent was on top of Cynthia.
The commissioner did not provide
a plausible explanation why he did
not accept Ms Seloi’s evidence. It was not enough to allude
that Ms Seloi did not protect
the Third Respondent. There was no
cogent reasons why Ms Seloi had to lie about the incident. On a
balance of probability, the
Third Respondent started the assault and
the bang was caused when Cynthia was falling down. Even if I am wrong
on this, I am however
convinced that I am correct in my finding that
the bounds of self-defence, if there was one, was exceeded.
[29]
I was
tempted to look into further grounds of review as raised by the
Applicant. Having found in the preceding paragraph that the
First
Respondent committed a material irregularity in the assessment of
self-defence justification, I rest here. Further
evaluation
would not salvage this award.
Costs
[30]
The Third
Respondent argued her own case. In her own view the award needed to
be defended. She was passionate about the matter.
I do not find this
to be a case where costs should follow suit.
[31]
Accordingly,
I make the following order:
Order
1.
The
arbitration award issued by the First Respondent under case number
GATW 9002-14 dated 27 November 2014 is hereby reviewed and
set aside
and replaced with an order that;.
1.1
The
dismissal of the Third Respondent by the Applicant was substantively
fair.
2.
There is no
order as to costs.
___________________________________
Molebaloa
M.S
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr Snyman of Snyman Attorneys.
For
the Third Respondent: In Person.
[1]
Act 66 of 1995 as amended.
[2]
2008 (2) SA 24 (CC).
[3]
[2013] 11 BLLR 1074 (SCA).
[4]
[2014] 1 BLLR 20 (LAC).
[5]
[2015] 1 BLLR 50
(LAC).
[6]
[2015) 10 BLLR 1052 (LC).
[7]
S v Ntuli
1975 (1) SA 429
(A) at 437
[8]
JR 2283/09, Delivered 10 April 2014
(Wilken AJ)