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[2018] ZALCJHB 389
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QK Meats SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1059/16) [2018] ZALCJHB 389 (30 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
JR
1059/16
In
the matter between:
QK
MEATS SA (PTY)
LTD
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER
ERIC MYHILL
N.O.
Second
Respondent
GIWUSA
obo ANNASTACIA NTHABISENG TSUBELLA
Third
Respondent
Heard
:
22 November 2018
Delivered
:
30 November 2018
Summary:
Review of an arbitration award – ignoring relevant evidence
makes the outcome to be one that a reasonable commissioner may
not
arrive at – equally misconceiving the nature of the dispute –
the charges that led to a dismissal – makes
the outcome to be
one that a reasonable commissioner may not arrive at. Held: (1) The
award is reviewed and set aside and replaced
with an order that the
dismissal is substantively fair with no order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
The applicant is seeking to review and set aside an award made by the
second respondent in terms of which he found that the
dismissal of
Annastacia Nthabiseng Tsubella (the dismissed employee) is
procedurally fair but substantively unfair. He ordered
the applicant
to reinstate the dismissed employee without any loss of benefits and
pay her back pay. The application is opposed
by the third respondent.
Background
facts
[2]
The dismissed employee was employed by the applicant on 12 May 2011
as Acting Team Leader. On or about 15 September 2015, the
applicant
held its 10
th
annual sports day anniversary. The function
was held at the Germiston Stadium. Employees were required to clock
in at work and
collect a voucher for breakfast and lunch before
heading to the venue. A day before, a letter was issued to the effect
that alcohol
was prohibited at the event. Allegations emerged that
there was alcohol at the event. Resultantly, the dismissed employee
was placed
on suspension on full pay pending the outcome of
investigations into the alleged charges on 17 September 2015.
[3]
On or about 23 September 2015, the dismissed employee was subjected
to a polygraph test. On 27 September 2015, Mr P A Vorster,
the
Polygraph Examiner, issued a report which concluded that the
dismissed employee indicated deception during the examination.
Prior
to that a notice of a disciplinary enquiry was issued on 25 September
2015 calling upon the dismissed employee to answer
allegations of
misconduct on 29 September 2015. The notice contained a catalogue of
allegations. The allegations ranged from dishonesty
up to and
including gross negligence.
[4]
One of the
allegations was that the investigations revealed that the dismissed
employee
distributed,
sold, dealt, handled alcohol to staff members during working hours
and or company related function and or entered the company and or
business related premises (i.e. Sports day) whilst in possession
of
alcohol and by doing so breached the company’s policies and
procedures as well as putting the health and safety of staff
in
jeopardy. Lastly, that the dismissed employee
has
been distributing, selling, dealing or handling alcohol without the
required licence illegally.
[1]
[5]
A disciplinary enquiry chaired by an independent chairperson, one
Mike Lockley ensued. After hearing evidence, the dismissed
employee
was found guilty on all the charges. After hearing aggravating and
mitigating factors, the chairperson issued a sanction
of dismissal
effective 6 October 2015. Aggrieved by her dismissal, the dismissed
employee referred a dispute of alleged unfair
dismissal to the first
respondent. In turn, the second respondent was appointed to resolve
the dispute through arbitration. On
13 April 2016, the second
respondent published his award. The applicant was aggrieved thereby
and launched the present application
on 06 June 2016.
The
arbitration proceedings.
[6]
At the commencement of the proceedings, Mr Jansen, representing the
applicant at arbitration, outlined the allegations that
led to the
dismissal of the dismissed employee. The transcript reveals the
following:
‘
COMMISSIONER
:
You do not have to go into too much detail.
MR JANSEN
: Okay
COMMISIONER
: What
was the misconduct?
MR JANSEN
: The
employee was involved in selling and breaching company policies
regarding alcohol, dishonesty and so forth.
COMMISSIONER
: Was
there any alcohol at the sports day?
MR JANSEN
:
Well,
she
was involved with the process of selling
[2]
the alcohol, and that took place during working hours, as the day was
seen as a normal work day.
COMMISSIONER
: What
was the other point, selling, involved in selling alcohol?
MR JANSEN
: And
then
also assisting with company’s equipment to design and
print, labelling for whisky brand that was issued.
COMMISSIONER
:
Sorry, I do not understand, what did she do, assist who?
MR JANSEN
: She
assist and helped the main contributing person to design and label
the brand of whisky.
COMMISSIONER
:
Okay. Okay, so does the applicant deny that she was involved in this
or what?
MR GALENI
: Yes,
she denies that.’
[7]
The above reveals that the applicant was seeking to justify the
dismissal with reference to the charges that led to the dismissal
of
the dismissed employee.
The
grounds for review
[8]
Various grounds of review were set out in the founding affidavit and
can be summarised thus:
8.1 Failure to advise the
applicant’s representative to declare a witness hostile i.e.
not extending a helping hand;
8.2 Failure to take into
account evidence;
8.3 Misconceived the
evidence upon which a finding was made to dismiss the dismissed
employee;
8.4 Ignored relevant
evidence.
[9]
Cumulatively, the applicant contends that the outcome of the second
respondent is not one a reasonable commissioner can arrive
at in
light of the evidence placed before him.
Evaluation
[10]
Mr
Cook, appearing for the applicants did not press with any vigour the
ground of failure to extend the helping hand. He did not
abandon the
ground though. My view, which I have expressed before is that in the
light of the review test as developed in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
,
I do not believe that on its own this is a ground for review. It
cannot, to my mind, be an irregularity that vitiates an award
when
the outcome arrived at falls within the bounds of reasonableness.
[4]
Accordingly,
this ground must fail.
[11]
Failure to take into account evidence is a
serious irregularity which affects the outcome. If a commissioner
fails to take into
account relevant evidence, it is almost impossible
to arrive at a conclusion that a reasonable decision maker would
arrive at.
Equally, misconceiving the evidence upon which a dismissal
is premised has the same effect. It must be borne in mind that if an
employer dismisses an employee for a particular misconduct, once
challenged to show the fairness of that dismissal, an employer
is
behooved to justify the dismissal using the allegations that led to
the dismissal. In
casu
,
the dismissed employee was found guilty of all the charges catalogued
in the disciplinary notice. Mr Jansen attempted to summarize
those
allegations at the commencement of the arbitration proceedings.
[12]
Therefore,
the duty of the arbitrator is to firstly establish whether the
evidence presented before him proves that on a balance
of
probabilities a dismissed employee is guilty as alleged. Reading the
award reveals that the second respondent missed the point
by a
proverbial mile. He recognised that the allegations that led to the
dismissal of the dismissed employee were spelt out in
the Notice of
Disciplinary Enquiry.
[5]
Having
done so, he decided to consider part of the allegations, much to the
chagrin of the others. He concluded thus:
‘
There
is no direct evidence that she was found in possession of alcohol on
the premises of the Respondent or the Stadium where the
Sports Day
function took place so the Respondent relies heavily on the results
of a polygraph test … The Respondent relies
on these results
to support its contention that Tsubella was guilty of the
aforementioned charges.’
[13]
Clearly, the above demonstrates that the
second respondent failed to consider why the dismissed employee was
dismissed by the applicant.
He instead went off on a tangent and
suggested a charge, which in his mind, was mitigated by the fact that
it was an instruction
from a senior manager. Strange enough he does
not find that the dismissed employee was guilty of any offence, yet
there is mitigating
factors. Instead he goes to making a finding that
there was double jeopardy, an issue that was never raised as a
procedural defect
by the dismissed employee.
[14]
Instead of considering whether there is any
evidence to support the allegation that the dismissed employee was
assisting the main
person in selling alcohol, he concentrated on a
charge that the dismissed employee was not charged with, i.e. that of
misusing
company property. The evidence presented proves on a balance
of probabilities that the dismissed employee assisted Mr Anderson in
his business of selling whisky. The evidence actually, to my mind,
proves that Mr Anderson and the dismissed employee were in business
together. Instead of appreciating the evidence of the comment sourced
on the business cards, he relegated it to a misuse of company
property.
[15]
This evidence, properly appreciated, proves
that the dismissed employee assisted and was actually involved in the
selling of alcohol
in breach of company policy. She knew that Mr
Anderson was selling alcohol at the petrol stations. She knew or must
have known
that when Mr Anderson made a sojourn at the Engen garage,
on the Sports Day, it was for the purposes of selling alcohol. It was
the evidence of Mr Anderson that at Engen garage, he gave a whisky
bottle to one Candice on the day in question.
[16]
Knowing fully well that the selling and/or
dealing with alcohol was contrary to the company policy, she
conveniently testified that
she did not observe the exchange, yet in
a statement she stated that a bag of juices was given as opposed to
whisky. The evidence
properly appreciated proves that the dismissed
employee was indeed guilty of selling and/or distributing of alcohol
during working
hours, an illegal conduct as Mr Anderson and she did
not possess the relevant license. Such is the case even without
necessarily
taking into account the polygraph results. However, the
results lend credence to such evidence.
[17]
To my mind, a reasonable commissioner
would, in light of the evidence presented, have arrived at a
conclusion that the dismissed
employee was indeed guilty of the
misconduct that led to her dismissal. It must follow that the
dismissal was substantively fair.
The misconduct that led to the
dismissal of the dismissed employee is a very serious one. It goes to
the root of the trust relationship,
accordingly dismissal as a
sanction was a fair sanction. According to the disciplinary code of
the applicant dealing with alcohol
is a dismissible offence.
[18]
Before I conclude, I wish to comment in
passing on this issue of declaring Mr Anderson a hostile witness.
Even if the representative
would have successfully applied to declare
Anderson a hostile witness, all that would have meant is that the
general rule of not
cross-examining one’s own witness would
have been lifted. However, the evidence of Mr Anderson in whatever
form would still
be required to be assessed together with the
evidence of others. An important factor in the evidence of Mr
Anderson is that he
had a close relationship with the dismissed
employee. On the probabilities such evidence supports the allegation
that the dismissed
employee assisted Mr Anderson in the business of
selling and/or distributing alcohol.
[19]
Accordingly, I conclude that the award is
reviewable in law. With regard to costs, I have a wide discretion to
exercise. I am minded
not to make an order as to costs.
[20]
In the results, I make the following order:
Order
1.
The
award issued by the second respondent on 13 April 2016 under case
number GAJB21775-15 is hereby reviewed and set aside;
2.
It
is replaced with an order that the dismissal of the dismissed
employee is substantively fair;
3.
There
is no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
Advocate AL Cook
Instructed
by: Allardyce & Partners, Johannesburg.
For
the Third Respondent: Attorney M Bayi of Bayi Attorneys.
[1]
Own emphasis.
[2]
Own emphasis.
[3]
(2007) 28 ILJ 2405 (CC).
[4]
See Witbooi v Commission for Conciliation, Mediation and Arbitration
and Others (2018) 39 ILJ 1852 (LC).
[5]
Paragraph 59 of the award.