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[2018] ZALCJHB 59
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Fidelity Security Services (Pty) Ltd v SATAWU obo Richard and Others (JR2246/14) [2018] ZALCJHB 59 (1 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR 2246/14
FIDELITY
SECURITY SERVICES (PTY) LTD
Applicant
and
SATAWU
obo ZONKE RICHARD
&
5 OTHERS
CCMA
PULENG
JOYCE MADUNA N.O.
First
Respondent
Second
Respondent
Third
Respondent
Heard:
30 November
2017
Delivered:
1 February 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an application in terms of s 145 of the LRA to review and set
aside an arbitration award issued by the third respondent
(the
arbitrator) on 8 September 2014. In her award, the arbitrator ordered
the applicant to reinstate the second and further respondents
(the
employees) with retrospective effect, with no order as to costs.
[2]
The dispute was previously the subject of an application for review.
On 22 April 2014, the court had before it an application
to review an
award dated 26 July 2011. In that award, commissioner R McGregor
dismissed the individual respondents’ referral
of an unfair
dismissal claim. An order was granted to the effect that the award be
reviewed and remitted to the CCMA for rehearing.
The basis for that
order is not apparent. The dispute was duly remitted and the matter
reheard by the arbitrator, whose award is
the subject of these
proceedings.
[3]
In her award, the arbitrator records, correctly, that it is incumbent
on the applicant to establish the fairness of a dismissal,
once the
existence of a dismissal had been established by the individual
respondents. The undisputed evidence was that in March
2011, one of
the applicant’s clients (ABI) had terminated a contract to
provide security services, at a site in Bedfordview
on which the
individual respondents were engaged. The applicant’s case was
that the individual respondents’ contracts
of employment
provided for the termination of their employment in the event that
the applicant was unable to place them at a suitable
post. The
applicant’s version was that given that there were no other
vacancies in the region at the time, consultations
were held with
representatives of the individual respondent but that they refused to
accept any alternative positions that were
offered to them. In those
circumstances, their employment was terminated. The individual
respondents denied having been offered
alternative employment (i.e.
employment on a different site) or that they had refused it. The
arbitrator went on to find that fair
procedure had been followed but
came to the following conclusion:
38. As far as substantive fairness is
concerned it was testified that the employer refused to retrench the
employees when it could
not find alternative sites for them but chose
to dismiss them without any reason and without even acknowledging the
lengthy years
of service the applicants gave to the company. I
therefore find that the applicant’s dismissal was substantively
fair.
[4]
This is the full extent of the arbitrator’s reasoning in
relation to substantive fairness. The applicant contends that
in
coming to the conclusion she did, the arbitrator made findings that
are not rationally connected to the evidence that served
before her.
Specifically, the applicant contends that the arbitrator failed to
apply her mind to evidence that the individual respondents
were
offered alternative positions and in fact instructed to report to
other sites, but that they failed to do so.
[5]
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.
[6]
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 or
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 is 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 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).
[7]
It does not appear to have been in dispute that the terms of the
individual respondents’ contracts provided that subject
to an
obligation to endeavour to place the individual respondents in
alternative posts, the contracts would terminate in the event
that
the individual respondents were to be removed from a site at the
instance of a client (see paragraph 4 of the award ‘Issues
of
common cause’). There was evidence, in the form of the letters
of termination dated 6 April 2011, each of which had been
endorsed
‘alternative rejected’. Further, in respect of some
employees, there was evidence of correspondence making
specific
reference to transfers to the Robertsville office, with placement at
either at UJ or Mogale City sites. Indeed, one of
the documents put
to Makubela (which he could not adequately explain) was a letter
dated 7 April 2011, addressed to a Mr Ndlovu,
offering him a transfer
to Mogale City. That offer was accepted, and the acceptance endorsed
by Mr Zane, the shop steward who had
been representing employees
during the consultation process. All of these documents serve to
corroborate the applicant’s
version. Further, paragraphs 5.4
and 5.5 of the individual respondent’s heads of argument in the
first review application
were put to Makubela. These state, as a
matter of common cause:
5.4 Subsequent to the above there were
discussions and consultations and finally the individuals second
applicants were all offered
alternative employment.
5.5
The individual second applicants refused to accept the offer of
alternative employment and
this led to the termination of their
contract.
[8]
T
he arbitrator makes no reference to any of this evidence, nor
does she provide any reasons for rejecting it.
[9]
The arbitrator’s reasoning (as far as it can be ascertained
from paragraph 38 of the award) is that the dismissals were
substantively unfair because (a) there was evidence that the
applicant had refused to retrench the individual respondents when
it
could not find alternative sites for them; (b) the applicant chose to
dismiss the individual respondents without any reason;
and (c) the
applicant did not acknowledge the individual respondents’
length of service. This finding flies in the face of
the evidence
that served before the arbitrator. The ‘refusal to retrench’
was not in issue – it was accepted
by the parties as common
cause that the individual respondents’ contracts provided for
termination in the event that the
employee was removed from a site
and no alternative sites were available. There was no evidence that
the individual employees were
dismissed ‘without any reason’.
The reason for dismissal was articulated by the applicant’s
witnesses, and those
of the individual respondents who testified were
under no misapprehension as to why they had been dismissed. Given
that the arbitrator
did not consider the dispute to be one that
concerned a retrenchment or a claim of severance pay, the individual
respondents’
length of service had no bearing on the
substantive fairness of their dismissal. In any event, the arbitrator
had found that the
applicant had followed a fair procedure prior to
the notices of termination of employment being issued. Specifically,
the arbitrator
rejected the version proffered by the individual
respondents to the effect that there had been no consultation with
the union.
This finding is consistent with the documentary
evidence that served before the arbitrator, in the form of minutes of
the
meetings concerned. In short, the arbitrator’s reasons for
her finding of substantive unfairness do not sustain the conclusion
to which she came. On balance, the evidence supports the conclusion
that the applicant was entitled to terminate the employment
of the
individual respondents in the event that it was unable to find
alternative employment for them, and that after proper consultation
with a trade union representative present, the individual respondents
were offered alternative posts which they refused.
[10]
There is a further point that requires consideration. It would
appear from the record that at the commencement of the
arbitration
proceedings, the applicant’s representative raised a
jurisdictional point. That point was to the effect that
the reason
for dismissal was one related to the applicant’s operational
requirements and that in those circumstances, given
the number of
employees dismissed, the CCMA did not have jurisdiction to entertain
the claim, which ought to have been referred
to this court. The
CCMA’s lack of jurisdiction was the primary basis on which the
respondent sought to have commissioner
MacGregor’s award
reviewed. In the founding affidavit filed in that application, the
deponent to the affidavit (who is an
individual respondent in these
proceedings and who testified during the proceedings under review),
was scathingly dismissive of
commissioner McGregor’s failure to
make a jurisdictional ruling to the effect that the real reason for
dismissal was one
related to the applicants operational requirements.
Indeed, he goes so far as to say the following, at paragraphs 28 and
29 of
the affidavit:
28.
The applicants submit that a particularly disturbing feature was the
fact that the second
respondent pretended that the jurisdictional
issue did not exist, and went on unperturbed with a determination of
the matter, notwithstanding
his finding that there was a dismissal
and that the same could not be classified as other than one for
operational requirements,
i.e. a ‘retrenchment as it is
referred to in ordinary pylons. No, he swept the matter under the
carpet even though he addressed
and determined the ancillary issues
of a) with alternatives to the retrenchment existed and were
explored, b) what the applicants
response to them was, c) whether a
consultation procedure on the retrenchment was held, and d) with the
way the applicants dealt
with the alleged alternative offers
disqualified them from receipt of severance pay or not. All the
aforesaid elements proving
that the second respondent had knowingly
immersed himself fully in a retrenchment related dispute just disable
by this Honourable
Court, and yet simply went ahead with the matter
as if he could have arbitrated it
29. I thus submit, on my behalf and on
behalf of my co-applicants as well, that the said fact alone vitiates
the second respondent’s
award so comprehensively as to call
for it to be set aside by this Honourable Court at once, with a
punitive cost order against
the third respondent hearing in the event
it seeks to oppose this application without any reasonable, as
opposed to a frivolous
or vexatious, basis.
[11]
It would appear that the arbitrator dismissed the jurisdictional
point on the basis it seems that the matter had been remitted
by this
court for rehearing, and that she was not in a position to fail to
comply with the order. This is, of course, incorrect,
since a
jurisdictional point may be raised at any stage of proceedings and
further, because the terms of the order remitting the
dispute could
never confer jurisdiction on the CCMA if it had none. It was
incumbent on the arbitrator to determine the real nature
of the
dispute and to conduct the arbitration proceedings accordingly. It
would seem to me from a reading of the record that the
real reason
for dismissal was one related to the applicants operational
requirements and that the jurisdictional point order accordingly
to
have been upheld. Be that as it may, the applicant has not directly
sought to review any jurisdictional ruling made by the arbitrator
and
in view of my finding on the merits of the review application, it is
not necessary for me to take the matter any further.
[12]
In successful review applications, this court ordinarily exercises a
discretion to either remit the matter to the CCMA for
rehearing, or
substitute the commissioner’s finding for one that is
appropriate. The source of this discretion is s 145 (4)
of the LRA,
which provides that this court may either ‘determine the
dispute in the manner it considers appropriate’
or ‘make
any order it considers appropriate about the procedures to be
followed to determine the dispute. The court ordinarily
takes into
account whether the result is a foregone conclusion, whether any
prejudice would be caused to the applicant by any further
delay,
whether the decision-maker has exhibited bias, and whether the court
is in as good a position to make the decision itself.
In
Palluci
Home Depot (Pty) Ltd Heskowitz and others
[2015] 5 BLLR 484
(LAC) the LAC said the following, at paragraph 58:
Where all the facts required to make a
determination on the disputed issues before a reviewing court in an
unfair dismissal or unfair
labour practice dispute such that the
court is in as good a position as the administrative tribunal to make
the determination,
see no reason why a reviewing court should not
decide the matter itself. Such an approach is consistent with the
paths of the Labour
Court under s 158 of the LRA, which primarily
directed at remedying a wrong, and providing effective and speedy
resolution of disputes.
The need for bringing a speedy finality to
labour dispute is thus an important consideration in the
determination, by a court of
review, of whether to remit the matter
to the CCMA for reconsideration, or substitute its own decision for
that of the commissioner.
[13]
The court has before it all of the relevant material and little point
would be served by remitting the dispute to the CCMA
for rehearing.
As I have indicated, the evidence suggests that on the probabilities,
the dismissal of the individual respondents
was substantively fair.
Further, the interests of expeditious dispute resolution would be
best served by an order of substitution.
The present matter has its
roots in dismissals effected in 2011, some seven years ago. It is in
the interests of all concerned
and in the interests of justice that
there be no further delay in bringing the matter to finality. I
intend therefore to substitute
the arbitrator’s award with a
ruling to the effect that the referrals to arbitration are dismissed
[14]
Finally, in relation to costs, this court has a broad discretion in
terms of s 162 of the LRA to make orders for costs according
to the
requirements of the law and fairness. This court conventionally does
not make costs orders in matters involving collective-bargaining
partners and it seems to me that the requirements of the law and
fairness will be best served by each party bearing its own costs.
I
make the following order:
1. The arbitration
award issued by the third respondent under case number GAEK 3250-11
on 8 September 2014 is
reviewed and set aside.
2. The award is
substituted by the following:
‘
The
applicants’ referral is dismissed.
3. There is no order
as to costs.
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr C Crafford, Crafford Attorneys
For
the first respondent: Union official