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[2018] ZALCJHB 6
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South African Airways (SOC) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR271/15) [2018] ZALCJHB 6 (19 January 2018)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase no: JR 271/15
In
the matter between:
SOUTH AFRICAN AIRWAYS (SOC)
LTD
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
STEPHEN
BHANA (
N.O.
)
Second Respondent
NATIONAL
TRANSPORT MOVEMENT
OBO MATEBOGO THIPE
Third Respondent
Heard
:
23 November 2017
Delivered
:
19 January 2018
Summary:
(review-unfair dismissal-reasonableness - despite errors of reasoning
outcome only partially flawed –
a reasonable arbitrator could
have decided that the misconduct did not warrant dismissal)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is a review application of an unfair dismissal award. There is
also an application for condonation for the late filing
of the
initial application.
[2]
The employee in this matter, Ms M Thipe (‘Thipe’) had
been dismissed for 5 out of 8 charges she had originally been
charged
with. The charges she was found guilty of were as follows -
2.1
Charge 1: Poor timekeeping for the period 23 December 2013 to 28
January 2014 and not working
her official hours.
2.2
Charge 2. Being absent without leave on 2, 3 and 9 January 2014.
2.3
Charge 3. Fraudulent timekeeping for indicating that she was at work
when she was not.
2.4
Charge 7: Failing to obey an instruction to populate an induction
register.
2.5
Charge 8: Failing to follow instruction to issue invitations for an
induction program.
The parties had agreed at the
arbitration that it was common cause that the rules on timekeeping
and instructions were reasonable
and that the turnstile records were
what they purported to be and were not in dispute.
Condonation
[3]
The arbitration award was received by the applicant on 10 December
2014, but the review application was only filed on 19 February
2015.
Accordingly, it was just under a month late. The explanation for the
delay related to the absence of staff handling the matter
over the
December and January period resulting in poor internal communications
between them. It is apparent that on receipt of
an application to
make the award an order of court on 27 January 2015, the
communication gaps came to light and the applicant moved
with
reasonable speed to file the application thereafter. The condonation
application was included in the founding review papers.
[4]
I accept that a certain
allowance has been made for parties ‘dropping or fumbling the
ball’ during the annual shutdown
period, in that the court has
rightfully acknowledged the fact that the absence of a Labour Court
rule stipulating
dies non
during the ordinary annual
shutdown period over December and January should be taken into
account when delays over this period are
being considered.
[1]
Accordingly, some leeway must be allowed in this regard, even though
it does not mean that employers, unions and employer organisations
in
particular should not have some arrangement in place to deal with
handling awards received during that period, given the limited
time
period for challenging awards. Similarly, an employee ought to try
and ensure an award reaches their attention if they are
away.
[5]
In this instance there was someone appointed, who was supposed to
deal with matters, but they were somewhat remiss in making
sure that
the award was timeously referred to the person responsible for acting
in such matters as soon as the latter returned
from leave. All in
all, the explanation for the delay was not an unreasonable one and
the prejudice caused by the delay is insignificant.
Accordingly,
notwithstanding the limited merits of the review application dealt
with below, it is appropriate to condone the late
filing thereof.
The
Award
[6]
When Thipe referred her dismissal to CCMA, the arbitrator found that
the applicant (‘SAA’) had failed to prove any
of the five
charges except the first one, which it only “partially”
proved. That misconduct did not warrant dismissal
in terms of the
applicant’s code or in general. The arbitrator also found that
there was no evidence that the trust relationship
had been broken
down especially because Thipe had not been found guilty of fraud. The
arbitrator found the dismissal of Thipe had
been substantively unfair
and reinstated her. The employee had been employed as a training
coordinator by the applicant, SAA, for
12 years.
[7]
The arbitrator concluded that because Thipe’s supervisor, Ms
Nyobolo (‘Nyobolo’) had signed off on her December
2013
timesheet, no account could be taken of her alleged absenteeism in
December. However, the arbitrator accepted that the January
turnstile
records showed that Thipe had at times come to work late and left
early which supported the employer’s allegation
of poor
timekeeping during that period. On any reasonable assessment of her
timekeeping during the period 23 December to 30 January,
Thipe worked
short hours or was absent without leave on 19 out of 27 days, which
is a shockingly poor attendance record. Nonetheless,
no attempt was
made to correct it before relying on it as a reason for dismissal.
[8]
The Commissioner decided that it was not necessary to consider
Thipe’s short working hours in December because her supervisor
had signed off the attendance register as correct even though the
turnstile record showed that it was manifestly incorrect.
[9]
In relation to the failure to obey the two instructions, the
arbitrator concluded that Thipe had not refused to send the
invitations
as such, nor was she guilty of not populating the
register. The arbitrator seem to adopt the view that as there was
only one witness
for each party on these issues that the employer had
failed to prove the charge.
[10]
The employee’s explanation why there was no record of her
presence at work on 2, 3 and 9 January is that she had entered
the
workplace via the crew bus and as a result would not pass through the
turnstiles. The employer tendered evidence that there
was a form that
had to be filled in by staff who boarded the crew bus and that Thipe
had not provided any evidence that she had
completed the same.
However, one of Thipe’s witnesses had testified that even
though there was such a document it was not
always completed. The
same witness testified that Thipe had been assisting her with her own
workload on 9 January and had been
with her the whole day. The
arbitrator concluded on a balance of probabilities that Thipe had
used the crew bus and had worked
with a colleague on 9 January and
hence on a balance of probabilities not guilty of the charge relating
to her absence on three
days in question.
Evaluation
of the Review
[11]
SAA’s challenge to the award is essentially one based on the
alleged unreasonableness of the arbitrator. The test of
reasonableness has undergone a number of iterations. For the purposes
of this review the following extracts of the authorities
are
pertinent:
[14] The Supreme Court of Appeal in
Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus
Curiae)5 made it clear that a
review of an arbitration award is
permissible if the defect in the proceedings falls within one of the
grounds in s 145(2)(a) of
the Labour Relations Act E 66 of 1995
(LRA):
‘
For a defect in the conduct of
the proceedings to have amounted to a gross irregularity as
contemplated by s 145(2)(a)(ii), the
arbitrator must have
misconceived the nature of the enquiry or arrived at an unreasonable
result.
Ä result will only be unreasonable if it is one that
a reasonable arbitrator could not reach
on all the 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
.’
[15] This court in Gold Fields Mining
SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation & Arbitration
& others (Gold Fields) stated that:
‘
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that
evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in Sidumo was at pains
to state that
arbitration awards made under the Labour Relations Act (LRA) continue
to be determined in terms of s 145 of the LRA
but that the
constitutional standard of reasonableness is “suffused”
in the application of s 145 of the LRA. This implies
that an
application for review sought on the grounds of misconduct, gross
irregularity in the conduct of the arbitration proceedings,
and/or
excess of powers will not lead automatically to a setting aside of
the award if any of the above grounds are found to be
present. In
other words, in a case such as the present, where a gross
irregularity in the proceedings is alleged, the enquiry is
not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends to whether the result was unreasonable,
or
put another way, whether the decision that the arbitrator arrived at
is one that falls in a band of decisions to which a reasonable
decision maker could come on the available material
.’
[2]
To
this may be added the following statements of principle:
“
[21] Where the arbitrator fails
to have regard to the material facts it is likely that he or she will
fail to arrive at a reasonable
decision. Where the arbitrator fails
to follow proper process he or she may produce an unreasonable
outcome (see Minister of Health
& another NO v New Clicks SA
(Pty) Ltd & others
2006 (2) SA 311
(CC)). But again, this is
considered on the totality of the evidence not on a fragmented,
piecemeal analysis. As soon as it is
done in a piecemeal fashion, the
evaluation of the decision arrived at by the arbitrator assumes the
form of an appeal. A fragmented
analysis rather than a broad based
evaluation of the totality of the evidence defeats review as a
process.
It follows that the
argument that the failure to have regard to material facts may
potentially result in a wrong decision has no
place in review
applications
. Failure to
have regard to material facts must actually defeat the constitutional
imperative that the award must be rational and
reasonable —
there is no room for conjecture and guesswork.”
[3]
and
“
[30] The failure by an
arbitrator to apply his or her mind to issues which are material to
the determination of a case will usually
be an irregularity. However,
the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd
(Congress of SA Trade Unions as Amicus
Curiae) and this court in Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration
& others have held that
before such an irregularity will result in the setting aside of the
award, it must in addition reveal
a misconception of the true enquiry
or result in an unreasonable outcome.
[31] The determination of whether a
decision is unreasonable in its result is an exercise inherently
dependent on variable considerations
and circumstantial factors. A
finding of unreasonableness usually implies that some other ground is
present, either latently or
comprising manifest unlawfulness.
Accordingly, the process of judicial review on grounds of
unreasonableness often entails examination
of inter-related questions
of rationality, lawfulness and proportionality, pertaining to the
purpose, basis, reasoning or
effect of the decision,
corresponding to the scrutiny envisioned in the distinctive review
grounds developed casuistically at common
law, now codified and
mostly specified in s 6 of the Promotion of Administrative Justice
Act (PAJA); such as failing to apply the
mind, taking into account
irrelevant considerations, ignoring relevant considerations, acting
for an ulterior purpose, in bad faith,
arbitrarily or capriciously,
etc.
The court must nonetheless still consider whether, apart from
the flawed reasons of or any irregularity by the arbitrator, the
result
could be reasonably reached in the light of the issues and the
evidence
. Moreover, judges of the Labour Court should keep in
mind that it is not only the reasonableness of the outcome which is
subject
to scrutiny. As the SCA held in Herholdt, the arbitrator must
not misconceive the enquiry or undertake the enquiry in a
misconceived
manner. There must be a fair trial of the issues.
[32] However, sight may not be lost of
the intention of the legislature to restrict the scope of review when
it enacted s 145 of
the LRA, confining review to “defects”
as defined in s 145(2) being misconduct, gross irregularity,
exceeding powers
and improperly obtaining the award. Review is not
permissible on the same grounds that apply under PAJA. Mere errors of
fact or
law may not be enough to vitiate the award. Something more is
required.
To repeat: flaws in the reasoning of the arbitrator,
evidenced in the failure to apply the mind, reliance on irrelevant
considerations
or the ignoring of material factors etc must be
assessed with the purpose of establishing whether the arbitrator has
undertaken
the wrong enquiry, undertaken the enquiry in the wrong
manner or arrived at an unreasonable result.
Lapses in
lawfulness, latent or patent irregularities and instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived enquiry or a decision
which no reasonable decision maker could reach on all the
material
that was before him or her.
[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 determined
with reference to the distorting effect it may or
may not have had
upon the arbitrator’s conception of the enquiry, the
delimitation of the issues to be determined and the
ultimate outcome.
If but for an error or irregularity a different outcome would have
resulted, it will ex hypothesi 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 the competing interests impacted I 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 that ground alone. The arbitrator however must be
shown to have diverted from the correct
path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.’
[4]
(Emphasis
added; footnotes omitted.)
[12]
SAA’s main grounds of review are:
12.1 In relation to the
arbitrator’s finding on the poor timekeeping, the arbitrator
had ample evidence of the
fact that she failed to attend work on 25
days out of a 36 day working cycle and not work her normal official
hours.
12.2 Secondly, the
arbitrator having made the finding that Thipe had not kept official
hours during January 2014, ought
to have found that dismissal was the
appropriate sanction instead of the verbal warning which he
recommended. This was glaringly
inappropriate in view of the fact
that she was paid for her full normal attendance, whereas she had not
worked normal hours. Moreover,
he ignored her dishonesty in
submitting a timesheet in which she indicated she had been at work
and worked all the required hours
during the period 23 December 2013
to 28 January 2014 when she had not done so.
12.3 The arbitrator ought
not to have ignored the evidence of the turnstile records and
Nyobole’s evidence at
the arbitration that Thipe was absent
from work on several occasions during December 2013 simply because
Thipe had signed off her
timecard as correct, when Nyobolo testified
that she had only signed Thipe’s timesheet because she had
trusted her.
12.4 The arbitrator could
not justify why he accepted Thipe’s explanation of her apparent
absence from work on
2, 3 and 9 January 2014 rather than SAA’s
version and should have made an adverse credibility finding against
her.
12.5 The arbitrator
unreasonably concluded that in the absence of proving that Thipe was
guilty of fraud, there was
no basis for concluding that there had
been an irretrievable breakdown of trust.
[13]
SAA places much reliance on the importance to be attached to the
turnstile records. At the start of the arbitration, SAA’s
representative pertinently raised the issue of the turnstile records
and sought clarity on the defence which would be advanced
by Thipe in
relation to those records as a record of attendance. Thipe’s
representative confirmed that the turnstile records
were valid but
that it was possible to enter the premises without passing through
the turnstile if the staff shuttle bus from the
airport was used to
enter the premises. No other explanation for why the turnstile
records would not be a valid reflection of work
attendance was
advanced by Thipe, except for one instance when she was questioned
about her attendance record on 30 December 2014
when she advanced a
further explanation relating to collection of a parcel to why it
appeared from the turnstile record that she
left work shortly after
midday. Further, there was a concession by Thipe’s
representative during the hearing that they did
not dispute that the
turnstile record showed that there was no instance where she came in
at 08H00 or before 08H00 and left either
at 16H30 or later than that,
but that every day she came in late and left early except for one
instance where she came in late
and left after 17H00. In effect, the
arbitrator had before him the uncontroverted evidence of a very bad
work attendance record,
even if he accepted Thipe’s explanation
for her apparent absence from work on 2, 3 and 9 January 2015 could
be explained
by her use of the shuttle bus to access the premises.
The arbitrator was not entitled to simply discount Thipe’s
actual attendance
record of December 2014 because Thipe’s
immediate supervisor had signed it off because she trusted her.
Nyobole’s neglect
in this regard does not excuse Thipe’s
poor attendance. Accordingly, the arbitrator’s conclusion that
the charge of
poor work attendance by Thipe was only partially
sustained, cannot stand.
[14]
In relation to the fraud charge, SAA claims that the arbitrator
failed to explain why on a balance of probabilities he accepted
Thipe’s version about travelling on the crew bus on all three
days when Thipe herself had conceded that there was a document
that
had to be completed when she was aware of and could not be evidence
of having completed on any of the three days in question.
However,
SAA did not adduce any evidence in rebuttal of Thipe’s central
defence that if she took the shuttle bus from the
airport to the
office where she worked, she would not pass a turnstile where she
would clock in, which is what she claimed she
did on the three days
she was accused of being absent from work. The evidence of her
witness in regard to the lax procedures on
recording attendance on
the bus was also not effectively disputed by the applicant.
Consequently, in my view it is not beyond the
bounds of what a
reasonable arbitrator might do, namely to accept that Thipe’s
explanation for not passing through the turnstile
on those days might
have been true and that SAA had not established that she was not
present on those days on a balance of probabilities.
It follows from
this conclusion that the fraud charge in relation to those days
cannot be sustained.
[15]
Her poor attendance record also had a bearing on her dishonesty
according to SAA. Despite the above, attendance record is reflected
by the turnstile records, Thipe did not indicate a single anomaly in
her attendance on all the working days in January. In this
regard, it
must be noted that the actual entries on the timecard only record the
days when the employee is at work and not the
actual hours worked,
even though the timecards make provision for recording times an
employee is on duty and off duty, and were
clearly intended to
reflect actual working hours. However, it appears that SAA did not
consider it necessary to reflect the actual
hours worked on each day
on the timesheet. At the bottom of the timesheets is an endorsement
that “The time shown is a true
statement of my actual time
worked” which Thipe signed. Her supervisor signed a similar
endorsement stating that “I
have examined this register and I
am satisfied that the time claimed is correct.” Clearly, these
statements were both intended
to refer to the detailed record of
actual hours worked, which the timesheet provides for. At the top of
the timesheet is also an
entry showing that the total official
working hours of the employee, in this case 42 hours per week. It
might therefore be argued
even in the absence of the details of the
actual working hours that the signed endorsements amounted to a
representation that normal
working hours had been worked.
[16]
However, the closest SAA came to putting such a proposition to Thipe
was that the timesheet was a representation of the days
when an
employee was at work. This interpretation of the timesheet is
reinforced by Nyobole’s own statement that she did
not sign the
January timesheet “because there were
days
that I
realised that Matebogo was
not at work
” (emphasis
added). The timesheets as a record of daily attendance at work,
rather than a detailed record of hours actually
worked, also appears
to reflect what SAA’s own representative understood the
timesheets to be portraying when he asked Ms
Dlamini (one of Thipe’s
witnesses) “Now if an employee indicates on their timecard that
they were at work when in effect
they were not at work would you
agree with me that that is an act of misrepresentation, dishonesty,
even fraud?”. It must
also be remembered that in the
arbitration the issue of dishonesty arose primarily from the fraud
charges and it was never pertinently
suggested to Thipe that she had
been generally dishonest in representing her working hours. Had she
been charged with misrepresenting
that she had worked normal hours,
the result might well have been different and her dismissal easier to
justify, but I cannot say
that it was wholly unreasonable of the
arbitrator to conclude that on the basis of the timecards and put
timekeeping that she could
not be trusted in circumstances where no
prior disciplinary action had been taken.
[17]
In the circumstances, even though Thipe’s attendance record in
December 2013 and January 2014 was undeniably bad,
it would not be
unreasonable for an arbitrator to conclude that the code
nevertheless enjoined the employer to warn an employee
before
resorting to more serious disciplinary action, and even if the
arbitrator had regarded her actual record of attendance in
the more
serious light it deserved, a reasonable arbitrator might still have
concluded that it did not warrant dismissal in the
absence of any
prior warnings.
[18]
In respect of the charge that Thipe failed to complete various
administrative duties, the arbitrator’s reasoning in
exonerating her of any failings in that regard appears to have
ignored the fact that her version of what Thipe claims she did was
never put directly to SAA’s main witness in this regard and
accordingly the arbitrator could not reasonably have attached
equal
weight to their evidence as he appears to have done. However, even if
this omission is corrected as I have done by substituting
the
arbitrrator’s finding on these charges, it is quite possible
that a reasonable arbitrator could have concluded that such
misconduct did not warrant dismissal in the absence of any prior
disciplinary sanctions. It is also obvious that the main reason
for
Thipe’s dismissal related to her timekeeping.
[19]
Consequently, it seems that notwithstanding flaws in the arbitrator’s
reasoning, and even if some of his conclusions
require variation, his
ultimate conclusion that dismissal was not an appropriate sanction is
not one that no reasonable arbitrator
could have arrived at on the
evidence. That said, his conclusion that the first charge was only
partially justified cannot stand
in the light of his unreasonable
disregard of the December attendance record based solely on Nyobole’s
endorsement based
on trust. Further, his conclusion that a mere
verbal warning would have been sufficient as an alternative sanction,
is difficult
to reconcile with the frequency and seriousness of her
work record during that December 2013 and January 2014 period even if
she
had not been previously warned for poor timekeeping.
[20]
I have little doubt that if this case had been run slightly
differently the outcome might have been different, but that is
not a
consideration affecting the outcome of the review.
Order
[1]
The late filing of the review application is condoned.
[2]
The review application of the arbitration award and down by the
second respondent (‘the arbitrator’) under case
number
GAEK6704-14 on 9 December 2014 succeeds only to the extent set out
below:
2.1 The
arbitrator’s finding in paragraph 36 that the employee was not
guilty of charges 7 and
8 is substituted with a finding that, on a
balance of probabilities, the employee was guilty of failing to
follow a lawful instruction
and on her return to work she must be
issued with a written warning valid for six months for failing to
obey instructions.
2.2 the
arbitrator’s finding in paragraph 36 of his or that the
employer had only partially
discharged the onus of proving the
employee’s guilt in respect of charge one is substituted with a
finding that the employer
discharged this onus fully;
2.3 the
verbal warning valid for one month from 15 December 2014 imposed by
the arbitrator in paragraph
39 of his award is substituted with a
final written warning for poor timekeeping valid for twelve
months from the date of
the employee’s return to work.
2.4 No
order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
S
Dube of Bowman Gilfillan
Attorneys
RESPONDENT:
E
Mpahhlele of National
Transport
Movement
[1]
See
Lentsane
& others v Human Sciences Research Council
(2002) 23
ILJ
1433 (LC)
at 1440, para [24].
[2]
Schwartz v Sasol Polymers & others (2017) 38
ILJ
915 (LAC) at 920-921 (all footnotes omitted)
[3]
Gold Fields Mining SA (Pty)
Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation &
Arbitration & others
(2014) 35
ILJ
943 (LAC) at 950
[4]
Head of Department of
Education v Mofokeng & others
(2015) 36
ILJ
2802 (LAC);
[2015] 1 BLLR 50
(LAC) at 2811-13 (
ILJ
);
59-61 (BLLR)