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[2018] ZALCJHB 356
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Securitas Specialised Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 189/12) [2018] ZALCJHB 356 (6 November 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 189/12
In
the matter between:
SECURITAS
SPECIALISED SERVICES (PTY) LTD
Applicant
and
THE COMMSSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First Respondent
KHUMALO, MDUDZI
N.O
Second
Respondent
KUNGIWE AMALGAMATED
WORKERS
UNION OBO PHEME,
EDWARD
Third Respondent
Heard: 02 November
2017
Delivered: 06 November
2018
JUDGMENT
MAHOSI. J
[1]
This is an application
in
terms of section 145 of the Labour Relations Act
[1]
(LRA)
in
which the applicant seeks an order 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
GAJB21081 dated 22 November 2011. In terms of the award, the
arbitrator found the dismissal of the Edward Pheme (the employee)
to
be substantively and procedurally unfair and ordered reinstatement.
[2] The applicant seeks
that the arbitration award be substituted with a finding that the
dismissal of the employee was substantively
and procedurally fair.
Alternatively, that the arbitration be referred back to the CCMA for
a
de novo
arbitration before a different commissioner.
[3]
The key issue that this Court has to determine is whether the
arbitrator’s decision is one which a reasonable decision-maker
could not reach.
Background
[4] The applicant
employed the employee as a contract manager. His duties included
rendering security services to the applicant’s
clients and
customers and also managing a team of security officers who reported
to him. On 20 July 2011, the employee was served
with a notice to
attend a disciplinary hearing following allegations of
misconduct levelled against him. The disciplinary
enquiry was
convened on 21 July 2011. At the enquiry, the employee requested a
postponement to enable him to prepare for the hearing.
The
chairperson of the enquiry postponed the disciplinary enquiry to 26
July 2011.
[5] On 26 July 2011, the
employee arrived at the hearing with Mr James Hlatshwayo who was to
serve as his representative. However,
Mr Hlatshwayo was not permitted
to represent the employee. The employee requested the hearing to be
postponed to enable him to
obtain documents, the chairperson stood
down the disciplinary enquiry for that purpose. However, the employee
allegedly failed
to use this opportunity and the hearing proceeded on
the same date. The employee was allegedly not cooperative in that
although
he cross-examined the applicant’s witnesses, he
refused to give evidence, to call witnesses and to be
cross-examined.
At the end of the enquiry, the chairperson
found the employee guilty of the misconduct and recommended a
sanction of dismissal.
[6] The employee was
dismissed on 12 August 2011. He did not appeal the chairperson’s
decision, instead, he referred an unfair
dismissal dispute to the
CCMA alleging that his dismissal was both procedurally and
substantively unfair. Arbitration proceedings
were held on the 05, 22
September and 2 November 2011. The arbitrator issued an award, which
is the subject matter of this application.
Grounds of review
[7]
The applicant’s grounds of review are that the arbitrator
committed reviewable irregularities in that he improperly interrupted
the evidence presented by the applicant’s witnesses
(particularly that of Mrs Fritz) by rushing their evidence and
cutting
them short. Further that he failed to apply his mind to the
evidence led at the arbitration and misconstrued such evidence.
Applicable law and
analysis
[8] Arbitration awards
are reviewable in terms of section 145 (1) of the LRA, which provides
that ‘any party to a dispute
who alleges a defect in any
arbitration proceedings under the auspices of the Commission may
apply to the Labour Court for an order
setting aside the arbitration
award’. Section 145(2) defines a defect as the commissioner’s
misconduct in relation
to the duties of the commissioner as an
arbitrator, gross irregularities in the conduct of the arbitration
proceedings, exceeding
the commissioner's powers or improperly
obtaining an award.
[9]
The test for review which has been authoritatively stated by the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
was reiterated in
Herholdt
v Nedbank Ltd and Congress of South African Trade Unions
[3]
as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls in one of the grounds in s 145(2)(a) of the LRA.
For a defect in the conduct of the proceedings to amount to
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. A 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
fact, 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.’
[10]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others,
[4]
the
Labour Appeal Court (LAC) stated as follows:
‘
[17]
The fact that an arbitrator committed a process-related irregularity
is not in itself a sufficient ground for interference
by the
reviewing court.
The
fact that an arbitrator commits a process-related irregularity
does
not
mean that the decision reached is necessarily one that a reasonable
commissioner in the place of the arbitrator could not reach.
[18] In a review
conducted under s145(2)(a)(c) (ii) of the LRA, the review court is
not required to take into account every factor
individually, consider
how the arbitrator treated and dealt with each of those factors and
then determine whether a failure by
the arbitrator to deal with one
or some of the factors amounts to process-related irregularity
sufficient to set aside the award.
This piecemeal approach of dealing
with the arbitrator’s award is improper as the review court
must necessarily consider
the totality of the evidence and then
decide whether the decision made by the arbitrator is one that a
reasonable decision-maker
could make.’
[11]
In
Head
of the Department of Education v Mofokeng and Others
[5]
the
LAC confirmed
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.’
[12]
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.’
[13]
The applicant took issue with the arbitrator’s conduct during
the proceedings on the basis that he allegedly interrupted
the
evidence presented by Mrs Fritz. The applicant in its founding
affidavit quoted this incident and I don’t find it necessary
to
burden this judgment with the said quotation.
After
having had the benefit of reading the papers and the record I do not
find merit in the complaint raised against the arbitrator
in this
regard. As demonstrable from the record, the arbitrator informed the
witness to answer questions put to her. There is nothing,
in the
record, to show that there was undue interference by the arbitrator
in the arbitration proceedings and with the witnesses’
testimony. There is therefore no indication that the arbitrator
abandoned the rules of natural justice or that he conducted himself
in a manner that could have been seen to be irregular or biased.
[14]
The applicant further attacked the arbitrator’s award on the
basis that he inaccurately recorded Ms Fritz’s testimony
and
failed to consider the evidence of Ms Shirindi and Mr Joubert which
resulted in him reaching an unreasonable conclusion. It
is common
cause that although the employee did not testify during the
disciplinary hearing, he was given an opportunity to cross-examine
the applicant’s witnesses. Nothing turns on the arbitrator’s
recordal that “Ms Fritz contended that the finding
was
justified as it was based on the respondent’s version only”
as the arbitrator clearly recorded that Ms Fritz denied
that her
finding was influenced by the employee’s failure to present his
side of the story. On whether Ms Shirindi had, acting
as an observer,
powers to determine the issue of representation, the arbitrator found
the question to be academic. It follows that
the answer to the
question did not affect the outcome he reached in this regard.
[15] On the submission
that the arbitrator placed undue consideration on the evidence and
allegations, which were not the subject
matter for determination at
the arbitration, being that one Myburgh had referred to the employee,
using a derogatory word “kaffir”.
The relevant part of
the award that relates to this ground appears on paragraph 4.2 where
the arbitrator summarised the employee’s
evidence which part
reads as follows:
‘
4.2.6
he asserted that charge 1 related to his relationship with one Myburg
who had previously called him a kaffir. He claimed the
respondent
failed to address this issue and it had become an Achilles for the
parties.’
[16] There is no merit to
this ground as there is no proof that the arbitrator placed any
weight or consideration on such evidence
before arriving at his
decision.
[17]
A further ground for review is that
the
commissioner failed to appreciate or attach weight to the glaring
inconsistencies, contradictions and/or improbable versions
placed
before him by the employee that he was not allowed time to obtain
documentation which would have assisted him from his laptop
and his
contradictory version that he was denied access to his laptop. The
respondent submits that the employee testified that
he was denied
access to his computer (not the time of the disciplinary hearing) and
that the one-hour that was given to him to
get documents from his
computer was insufficient. It is apparent that these statements are
not contradictory at all. In any event,
the reading of the award
shows that the arbitrator applied his mind to this evidence and
rejected the employee’s version
that he was deprived of an
opportunity to obtain documentary evidence and to prepare for the
disciplinary enquiry.
[18] The applicant
further submitted that the arbitrator failed to consider the adverse
evidence presented by Mr. Isaac Ganta that
if no visit to customers
had taken place for seven months this would amount to a serious
problem for that contract manager. Further
that the arbitrator
ignored both the provisions of the applicant’s disciplinary
code and the testimony of Mr. Henning Joubert
in making a finding on
the gravity of the rule transgressed. In this regard, the arbitrator
found that the employee failed to visit
clients as required in terms
of his contract. However, arbitrator assessed the appropriateness of
the sanction and found dismissal
to be too harsh in light of the fact
that the applicant adopted a progressive discipline on all
transgressors. As a result, he
concluded that a written warning for
the employee’s transgression would be appropriate. It is
apparent that the arbitrator
considered the evidence led by the
applicant’s witnesses.
[19] The last ground of
review was that in arriving at a conclusion that the dismissal was
procedurally unfair, the arbitrator ignored
the evidence that one
Prince was only represented by an outside party as a result of a
deception as to the identity of his representative;
the charge sheet
which provides that employees are entitled to representation by a
trade union representative or by a co-worker
of their choice; and the
concession by the employee that he had read the charge sheet. On
procedural fairness, the arbitrator found
as follows:
‘
5.2
I wish to deal with the procedural challenge first. I have two
mutually destructive versions of whether the employee is entitled
to
outside representation. I need to state from the outset that this
right is not automatic. This would be the case if contained
in a
collective agreement, or practice at a particular establishment.
5.3
In this case the contention of the applicant is that it existed
because of a closed shop agreement entered into between the
union
representing the applicant at this hearing and the respondent. The
employer denied its existence and the union did not testify
to its
existence or present the document for my consideration. It is an
acceptable legal principle that he who alleges must prove
and the
union has failed to do so, it is therefore my conclusion (on) that
the union has failed to establish the existence.
5.4
There was also the version that a practice to this effect existed at
the respondent even though the respondent seriously challenged
its
existence. I am convinced it does. This is based on the evidence
tendered that demonstrated that Prince and other employees
in
management positions were so represented, the respondent gave
different versions as to why certain people were represented by
the
union, to choose one of these versions presented by the Human
Resources Director (is) she was not at that hearing and the
chairperson was not a trained Human Resource person. This
argument is neither here nor there as it is the company's
responsibility
to streamline processes to ensure consistency,
therefore not sustainable. This had a serious impact on the
applicant’s preparation
and I would assume he relied on the
Union Official to assist him in the disciplinary enquiry only to be
told it was not to be.
This in my view prejudiced the applicant in
his ability to present his case.’
[20]
The reading of the award shows that the arbitrator did not ignore any
evidence in this regard. He assessed all the evidence
before him and
it is clear that he was
not
persuaded by
Ms.
Shirindi’s evidence that she had been deceived in respect of
the case of Prince. He found that there was a practice of
allowing
employees who were at management positions outside representation at
the disciplinary enquiry and that failure to allow
the employee
outside representation amounted to inconsistency in the
application of the rules by the applicant.
[21]
It is apparent that the arbitrator dealt exhaustively with the
evidence before him and considered all the factors before him
prior
to coming to the conclusion that the employee’s dismissal was
procedurally and substantively unfair. Taking into consideration
the
depth of his treatment of the evidence, it cannot be said that he
committed
misconduct in relation to his duties as an arbitrator, a gross
irregularity in the conduct of the arbitration proceedings,
or that
he exceeded his powers. As such it is my view that the decision of
the arbitrator, in this case, is not a decision that
a reasonable
decision-maker could not reach. It is a reasonable decision that is
justified by the evidence that was placed before
him. There is,
therefore, no reason for this Court to interfere with the award.
[22] With regard to
costs, taking into account the requirements of law and equity, I
believe that this is a matter in which there
should be no order as to
costs.
[23]
In the circumstance, I make the following order:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
D. Mahosi
Judge of the Labour Court
of South Africa
Appearances
For the Applicant:
Advocate
M.A Lennox
For
the Third Respondent:
Mr A Goldberg of Goldberg Attorneys
[1]
Act 66 of 1995 as
amended.
[2]
2007 (28) ILJ 2405
(CC) at para 25.
[3]
2013 (6) SA 224
(SCA);
2013 (11) BLLR 1074
(SCA); 2013 (34) ILJ 2795 (SCA)
at para 25.
[4]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 17 and 18.
[5]
[2015]
1 BLLR 50
(LAC) at para 30.