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[2018] ZALCJHB 357
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Singama v Commission for Conciliation, Mediation and Arbitration and Others (JR 972/16) [2018] ZALCJHB 357 (31 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no: JR 972/16
In
the matter between
SIMPHIWE
SINGAMA
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION First
Respondent
CHITANE
SOZA
N.O
Second
Respondent
SUPA
CRUSH (PTY) LTD
Third
Respondent
Heard:
03 November 2017
Delivered: 31 October
2018
JUDGMENT
MAHOSI, J
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act
[1]
(LRA) to review
and set aside the arbitration award issued by the second respondent
(arbitrator) under the auspices of the first
respondent, the
Commission for Conciliation, Mediation and Arbitration (CCMA), under
case number NC 260-16, dated 25 April 2016
in terms of which the
arbitrator found that the dismissal of the applicant was procedurally
and substantively fair and the application
was dismissed.
[2] The applicant seeks
that the matter should be referred back to the first respondent to
heard
de novo
before an arbitrator other than the second
respondent.
[3]
The key question is whether the arbitrator’s decision is one
which a reasonable decision-maker could not reach
[2]
.
Background Facts
[4] The applicant was
employed by the third respondent on 17 July 2011 as a dump truck
operator. It is common cause between the
parties that on 10 January
2016, the dump truck tipped over while the applicant was operating
it. On 21 January 2016 he was suspended
and issued with a notice to
attend a disciplinary hearing that was scheduled for 23 January 2016.
The charges that he had to answer
to were as follows:
‘
Gross
misconduct in that you
:
1. Failed to follow an instruction
given by supervisor, Richard Moseneke regarding the hauling of the
material.
2. Breached health and safety rules by
not adhering to traffic signs, resulting in the dumper truck tipping
over.
3. Breached health and safety rules by
operating a dumper truck at excessive speeds, resulting in dumper
truck tipping over.’
[5]
At the disciplinary hearing, the applicant pleaded guilty to the
second charge and he was dismissed on 26 January 2016.
The
applicant then referred the dismissal dispute to the CCMA that was
unsuccessfully conciliated. The arbitration was held on 22
April
2016. At the end of the arbitration, the arbitrator issued an award
in which he found that the applicant’s dismissal
was
procedurally and substantively fair.
Grounds of Review
[6] The applicant’s
grounds of review are as follows:
‘
5.1
The commissioner’s findings based on the evidence before him
were wholly unreasonable.
5.2
The commissioner should not have considered the other charges as he
was dismissed for charge 2.
5.3
It was unreasonable for the commissioner not to consider that the
previous warnings were not related to healthy and safety and
the
dismissal was harsh.
5.4
The commissioner did not take into the account the evidence of
inconsistency that was led.
5.5
It was unreasonable for the commissioner not to consider that if he
was speeding there would have been a damage to the truck,
the
applicant disputes that he was speeding.
5.6
It was inappropriate for the commissioner to find that dismissal was
the appropriate sanction when there was no evidence that
the trust
relationship was broken.’
The
Test for review
[7] The test for review
has become trite law. The test is whether the decision reached by the
commissioner is one that a reasonable
commissioner could have
reached. The decision must fall within a radius of reasonableness.
[8]
In
Head
of the Department of Education v Mofokeng and Others
[3]
the
Labour Appeal Court (LAC) confirmed the
Herholdt
and
Mofokeng
judgments
and held as follows:
‘
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
and
this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
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.’
[4]
[9] The LAC further held
as follows:
‘
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 inquiry. 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 inquiry,
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 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.
’
[5]
[Footnotes omitted]
[10] The applicant
alleged that the arbitrator’s findings where wholly
unreasonable in that although he was dismissed for
charge 2, the
arbitrator found that he breached the safety rules by failing to stop
when he felt that the truck was overloaded
and to follow a speed
limit. The third respondent submitted that the traffic sign which the
applicant failed to adhere to was a
10km/h speed limit sign. By
pleading guilty to charge 2, the applicant admitted that he breached
the safety rule by not following
the speed limit which means that he
was travelling beyond the speed limit. There is therefore no merit to
the applicant’s
submission that the arbitrator considered a
charge that he was not dismissed for. I find no irregularity or
misconduct in relation
to this ground of review.
[11] The applicant’s
further submission was that it was unreasonable for the commissioner
to consider the nature of his previous
warnings as they were
unrelated to health and safety. Further that the sanction of
dismissal was too harsh. Item 3 of the Code
of Good Practice:
Dismissal provides guidance on how the employers should deal with the
determination of sanction and it provides
as follows:
‘
3.
Disciplinary measures short of dismissal.
Disciplinary
procedures prior to dismissal.
(1) All
employers should adopt disciplinary rules that establish the standard
of conduct required of their employees. The form and
content of
disciplinary rules will obviously vary according to the size and
nature of the employer‘s business. In general,
a larger
business will require a more formal approach to discipline. An
employer‘s rules must create certainty and consistency
in the
application of discipline. This requires that the standards of
conduct are clear and made available to employees in a manner
that is
easily understood. Some rules of standards may be so well established
and known that it is not necessary to communicate
them.
(2) The courts
have endorsed the concept of corrective or progressive discipline.
This approach regards the purpose of discipline
as a means for
employees to know and understand what standards are required of them.
Efforts should be made to correct employees’
behaviour through
a system of graduated disciplinary measures such as counselling and
warnings.
(3) Formal
procedures do not have to be invoked every time a rule is broken or a
standard is not met. Informal advice and correction
is the best and
most effective way for an employer to deal with minor violations of
work discipline. Repeated misconduct will warrant
warnings, which
themselves may be graded according to degrees of severity. More
serious infringements or repeated misconduct may
call for a final
warning, or other action short of dismissal. Dismissal should be
reserved for cases of serious misconduct or repeated
offences.
(4) Generally,
it is not appropriate to dismiss an employee for a first offence,
except if the misconduct is serious and of such
gravity that it makes
a continued employment relationship intolerable. Examples of serious
misconduct, subject to the rule that
each case should be judged on
its merits, are gross dishonesty or wilful damage to the property of
the employer, wilful endangering
of the safety of others, physical
assault on the employer, a fellow employee, client or customer and
gross insubordination. Whatever
the merits of the case for dismissal
might be, a dismissal will not be fair if it does not meet the
requirements of section 188.
(5) When
deciding whether or not to impose the penalty of dismissal, the
employer should in addition to the gravity of the misconduct
consider
factors such as the employee’s circumstances (including length
of service, previous disciplinary record and personal
circumstances,
the nature of the job and the circumstances of the infringement
itself.
(6) The employer
should apply the penalty of dismissal consistently with the way in
which it has been applied to the same and other
employees in the
past, and consistently as between two or more employees who
participate in the misconduct under consideration.’
[12]
Thus, in determining the appropriateness of the sanction, the
arbitrator must enquire into the gravity of the contravention
of the
disciplinary rule; the consistent application of the disciplinary
rule and sanction; and the mitigating and aggravating
factors. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[6]
the Constitutional Court held that:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal.
There
are other factors that will require consideration. For example, the
harm caused by the employee’s conduct, whether additional
training and instruction may result in the employee not repeating the
misconduct, the effect of dismissal on the employee and his
or her
long-service record. This is not an exhaustive list
.’
[7]
[13]
In determining whether the sanction imposed by the employer is fair,
the arbitrator is required to take into account the totality
of
circumstances.
[8]
In this case,
the arbitrator
took
into account the seriousness of the misconduct the employee was
charged with, the importance thereof, the applicant’s
total
disregard of its gravity and the effect the said misconduct had on
the continued employment relationship between the parties
to arrive
at the conclusion that dismissal was an appropriate sanction. The
arbitrator further took into consideration the evidence
led in
relation to the allegation of lack of consistency in the application
of the rule and found that the applicant could not
substantiate his
claim.
[14] It is apparent that
the arbitrator took into account the evidence before him and applied
his mind before arriving at the conclusion
that the applicant’s
dismissal was procedurally and substantively fair. It cannot be said
that he reached an unreasonable
conclusion. There is, therefore, no
reason for this Court to interfere with his award.
[15] I have had regard to
the issue of costs and I find that taking into account the
requirements of law and equity, there should
be no order as to costs.
[16]
In the circumstances, I make the following order.
Order
1.
The application to review and set aside the arbitration award issued
by the second respondent under the auspices of the first
respondent
under case number NC 260-16, dated 25 April 2016 is dismissed.
2.
There is no order as to costs.
D. Mahosi
Judge of the Labour Court
of South Africa
Appearances:
For
the applicant
Mr Singama (in person)
For
the respondent
Mr Melany Fouche of Jacques Du Preez attorneys
[1]
Act
66 of 1995 as amended.
[2]
See:
Sidumo
and Another v Rustenburg Platinum Mine Ltd and Others
[2007] 12 BLLR 1097 (CC).
[3]
[2015]
1 BLLR 50
(LAC).
[4]
At
para 30.
[5]
At
para 33.
[6]
[2007]
12 BLLR 1097 (CC).
[7]
At
para 78.
[8]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC).