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[2017] ZALCCT 62
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Transport and Omnibus Workers Union obo Brandt v SA Road Passenger Bargaining and Others (C253/2016) [2017] ZALCCT 62 (19 October 2017)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
CASE
NO: C253/2016
Not
reportable
In
the matter between:
TRANSPORT
AND OMNIBUS WORKERS’
UNION
obo BRANDT
Applicant
and
SA
ROAD PASSENGER BARGAINING
COUNCIL
First
Respondent
COMMISSIONER
BRÜMMER N.O
Second Respondent
TABLE
BAY RAPID TRANSPORT
Third Respondent
Application
heard: 16 August 2017
Judgment
delivered: 9 October 2017
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent (the arbitrator) on 17 March
2016. In
her award, the arbitrator held that the applicant’s dismissal
by the third respondent was substantively and procedurally
fair.
[2]
The applicant was dismissed on 12 January 2016, on charges of sexual
harassment.
[3]
The award summarises the evidence, and it is not necessary for me to
repeat the material facts here, save to note that the applicant
was
dismissed for sexual harassment. At the arbitration hearing, the
complainant testified that the applicant had made remarks
of a sexual
nature to her, none of which were disputed by the applicant in
cross-examination. Four other witnesses gave evidence
against the
applicant, the last of whom investigated the incidents concerned and
conducted the disciplinary hearing and dismissed
the applicant. At
the close of the third respondent’s case, the arbitrator sought
clarity from the applicant’s representative,
who did not
dispute that he had been advised of the consequences of failing to
dispute the complainants’ version. Closing
arguments were then
presented, most of which focused on issues of procedure.
[4]
Given the grants for review referred to below, the following extracts
from the award are relevant:
58.
It was at this point in the proceedings that clarification was sought
by the arbitrator
as to how the union was to proceed with the case,
as Ms Kastoor’s evidence had not been challenged.
59.
It was contended with him that there was a miscommunication between
the applicant and his union representative. The applicant
could,
however, not have conceded that he had been advised of the
commencement of the hearing to make notes with what he disagreed
with
and to instruct his representative accordingly. It was stressed that
uncontested evidence would stand as undisputed and reflecting
the
correct version of the events
60.
The arbitrator declined giving advice to the union as to how to
present the case who in turn responded that they still have
the right
to review. It was conceded that it would serve no further purpose to
call any other witnesses as the testimony of Ms
Kastoor stands
undisputed.
[5]
In relation to procedural fairness, the arbitrator found the
following:
79.
The Labour Court
in Avril Elizabeth Home for the Mentally
Handicapped v CCMA & others
[2006] ( BLLR 833 (LC)
specifically endorsed item 4 is reflected
supra
and held that
the strict rules as they would apply to criminal or other matters
should not have application in the workplace environment.
It was held
that item 4 sets out what is expected from an employer.
80.
The next point of relevance is then that item for the code as per the
LRA has indeed been
complied with.
81.
It further stands undisputed that the informal approach testified to
by Mr Abrahams has
been in place for 2 ½ years and at no stage
had any objection been raised in following this approach. There was
also no
objection at the commencement of the disciplinary hearing to
him acting as the chairperson despite the knowledge that he had also
investigated the matter.
82.
It is also common cause that the disciplinary code procedure referred
to by the union is
not part of the conditions of employment of the
applicant.
83.
The only reasonable conclusion, the light of the above, is that the
process followed was
an accepted one complied with item 4 of the
Code…..
[6]
The applicant has raised two primary grounds for review. The first
has a procedural basis, and is directed against the finding
that the
dismissal was procedurally unfair in circumstances where the
applicant contends, in effect, that the chair of the internal
hearing
was biased. The second relates to the arbitrator’s refusal to
allow the applicant to recall the complainant after
she had given
evidence at the arbitration hearing.
[7]
The applicable legal principles are well-established. This court is
entitled to interfere with an award made by a commissioner
if and
only if the commissioner misconceived the nature of the enquiry (and
thus denied the parties a fair hearing) or committed
a reviewable
irregularity which had the consequence of an unreasonable result. The
failure by an arbitrator to attach particular
weight to evidence or
attachment of weight to the relevant evidence and the like is not in
itself a basis for review; the resultant
decision must fall outside
of a band of decisions to which reasonable decision-makers could come
on the same material (see
Herholdt v Nedbank Ltd
[2013] 11
BLLR 1074
(SCA)). In other words, the test is two-staged. First, the
applicant must establish a misconception of the nature of the enquiry
or some misconduct or misdirection on the part of the arbitrator. If
that is established, whether a decision is unreasonable in
its result
ultimately requires this court to consider whether apart from the
flawed reasons of or any irregularity by the arbitrator,
the result
could still be reasonably reached in the light of the issues and the
evidence.
[8] In
Gold Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)), The Labour Appeal Court noted that a review court is not
required to take into account every factor individually, consider
how
the arbitrator treated and dealt with each factor and then determine
whether a failure by the arbitrator to deal with one on
more factors
amounted to a process related irregularity sufficient to set aside
the award. The court cautioned against adopting
a piecemeal approach
since a review court must necessarily consider the totality of the
available evidence (at paragraph 18 of
the judgement). Specifically,
the questions for a review court to ask or whether the arbitrator
gave the parties a full opportunity
to have their say in respect of
the dispute, whether the arbitrator identified the issue in dispute
that he was she was required
to arbitrate, whether the arbitrator
understood the nature of the dispute, whether he or she dealt with a
substantial merits of
the dispute and whether the decision is one
that another decision maker could reasonably have arrived at based on
the evidence
(see paragraph 20). So, when arbitrator fails to have
regard to the material facts it is likely that he or she will arrive
at a
decision that is unreasonable. Similarly, where an arbitrator
fails to follow proper process he or she will arrive at an
unreasonable outcome. But, as the court emphasised, this is to be
considered on a totality of the evidence and not on a fragmented,
piecemeal analysis (at paragraph 21).
[9]
The first ground of review, it will be recalled, concerns the
arbitrator’s finding that the applicant’s dismissal
was
procedurally fair, and in particular, her finding that the procedure
adopted by the third respondent complied with the Code
of Good
Practice. The second ground for review has its roots in the
arbitrator’s refusal to allow the complainant to be recalled
as
a witness. The first ground for review must be viewed in a context in
which the applicant was an experienced shop steward, he
was
represented during the disciplinary hearing by a fellow shop steward,
neither he nor his representatives objected to Abrahams
conducting
the hearing, the first time that the concern was raised regarding
Abrahams role was during the applicant’s appeal,
a similar
disciplinary process had been followed for approximately two years
without objections from union and finally, the disciplinary
code was
no more than a guideline. In my view, the arbitrator’s ruling
that the applicant’s dismissal was procedurally
fair is
reasonable having regard to the evidence before them.
[10]
The second ground for review must necessarily be evaluated in a
context where the LRA promotes the expeditious resolution of
disputes. The arbitrator’s decision to disallow the recall of
the complainant was made in circumstances where she had explained
the
arbitration process to both parties of the commencement of the
proceedings, she had emphasized the importance of putting contrary
versions to witnesses, she had encouraged the applicant to make notes
in response to versions with which he disagreed, the arbitrator
explained to the applicant that he must instruct his representative
on any challenges to the evidence adduced by the third respondent’s
witnesses,. The arbitrator specifically explained to the applicant
that if he failed to challenge evidence it would stand as undisputed.
The applicant clearly understood the arbitrator’s explanations
guidelines. Further, each witness was informed by the arbitrator
that
he or she would be late, cross examined and re-examined. This must
have had the effect of reinforcing the applicant’s
representative of their own duties. The complainant testified it was
cross-examined by the applicant’s representative. During
cross-examination, the applicant passed notes to his representative.
At the end of the complainant’s testimony, the arbitrator
specifically asked the employee whether he had any more questions. He
confirmed that he had none. Obviously alive to the issue
of onus of
the unchallenged version complainant, the arbitrator writer enquired
of the employee and didn’t decrement forward.
It was only after
the arbitrator reiterated that crucial parts of the complainant’s
testimony stood unchallenged that the
employee requested that the
complainant be recalled.
[11]
The arbitrator’s refusal to allow the company to be recalled
was not unreasonable given that the employee, on his own
admission,
is an experienced union official acquainted with the arbitration
process, but he was represented by a similar experience
officials
similarly acquainted with the arbitration process, that the
complainant was cross-examined and that after re-examination,
she
left the venue. The applicant’s response to the arbitrator’s
resident with him his failure to challenge specific
incidents of
sexual harassment are limited to averments that he was confused and
that there had been some miscommunication. The
arbitrator
specifically invited the applicant to explain where any confusion
crippling. His response is recorded as follows ‘
Ek gaan lieg
as ek se ek het ‘n antwoord’
.
[12]
In my view, the arbitrator did not misdirect herself by ruling that
the applicant had failed to make a case to recall the complainant.
In
the absence of any reviewable irregularity, there is no potential
distorting effect on the award. In relation to the finding
on
procedural fairness, the arbitrator’s decision falls into a
band of decisions to which a reasonable decision-maker could
come on
the available evidence. The application accordingly stands to be
dismissed.
[13]
Finally, relation to costs, there is no reason why costs ought not to
follow the result.
I
make the following
order:
1.
The application is dismissed, with costs.
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. AM Sarantos, instructed by Justine Del Monte
For
the third respondent: Mr CS Hendricks, Marais Muller Hendricks Inc.