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[2019] ZALCJHB 141
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Indico Risk Services CC v CCMA and Others (JR2731/16) [2019] ZALCJHB 141 (4 February 2019)
the
labour court of South Africa, johannesburg
judgment
Not
reportable
CASE
NO: JR 2731/16
In the matter between:
INDICO
RISK SERVICES
CC Applicant
and
CCMA
First
Respondent
LR
MATLOGA
N.O
.
Second
Respondent
TG
HLONGWANE
Third
Respondent
Heard:
27 November 2018
Reasons
given: 4 February 2019
JUDGMENT
VAN
NIEKERK J
[1]
On 27 November 2018 I dismissed this unopposed application to review
and set aside an arbitration
award issued by the third respondent
(the arbitrator). Due to a power failure, I was unable to deliver an
ex tempore
judgment, which I had intended to do. These are my brief reasons for
making the order that I did.
[2]
First, the applicant has provided a satisfactory explanation for the
late filing of
the record and the application for condonation filed
in that regard is granted.
[3]
In so far as the merits of the application are concerned, the
applicant dismissed
the third respondent (the employee) on 7 November
2016, after he was found guilty of charges of gross negligence,
bringing the
company’s name into disrepute and intimidation.
[4]
At the arbitration hearing, Mr Karel Botha, the applicant’s
site manager, testified
that between 19 and 23 September 2016 he
received an anonymous call advising him of misconduct at the Distell
site in particular,
that security officers and supervisors were
drinking and taking alcohol from the premises. He and a Mr Marais
visited the site
at 3am on 23 September, when the employee was on
duty. All employees (including the third respondent) were found awake
and at their
posts. Breathalyser tests were conducted with no
positive results.
[5]
During the next week, Botha said that he received a call from one of
the applicant’s
managing members and was advised of an incident
at the Distell site in which the employee and another employee on the
site, Kgotso,
were suspected of taking or wanting to take alcohol
from the site. A witness Millicent had said that she saw the employee
go into
and leave a toilet area, after which Kgotso went into the
same area. Millicent said that she heard a banging noise. Marais and
another employee Justice were called to the scene, and found two
440ml Hunters Extreme in the toilet. Botha testified further that
prior to the incident, he had had a discussion with the employee and
told him that Kgotso was not permitted to go on patrols, because
he
was a weigh bridge operator. Since the employee was the supervisor on
site, he was to be Botha’s ‘eyes and ears’.
On the
morning of 30 September, Kgotso was not at his post. He later
explained that he had taken papers to the goods area. After
further
investigation, both Kgotso and the employee were suspended.
[6]
The evidence of negligence from Botha can be summarized by the
following assertion
that he made during his evidence:
Okay, from my side and
the company side, we feel that you grossly neglected on the site that
you didn’t look after Kgotso.
I told you in directly and
directly that you must look and keep an eye on Kgotso.
[7]
The arbitrator concluded that there was no evidence to suggest that
the employee was
guilty of negligence. The arbitrator considered that
since the employee had been required as part of his duties to do
routine patrols
at the site, this would have meant that he would
necessarily have to leave Kgotso alone on occasions. On this basis,
there was
no evidence that the applicant had been negligent in the
performance of these duties on the day in question. To the extent
that
the applicant had contended that the employee ‘had a hand’
in the theft of alcohol from the warehouse, there was insufficient
evidence to establish this charge. There was no basis therefore to
find that the employee had brought the company’s name
into
disrepute. In so far as the charge of intimidation was concerned,
there was similarly insufficient evidence to establish the
charge. In
short, the arbitrator found on a balance of probabilities that the
applicant had failed to establish that it had a fair
reason to
dismiss the employee. The arbitrator awarded the employee
compensation in an amount equivalent to four months’
remuneration. In arriving at this amount, the arbitrator considered
the employee’s dismissal had been found to be unfair,
that he
had only been employed for four months, and that he had secured
alternative employment. The total amount of compensation
marginally
exceeds R 22 000.
[8]
The applicant records various findings by the arbitrator and disputes
the arbitrator’s
conclusion that it had failed to present
sufficient evidence to establish, on balance, that the employee was
guilty of the offences
with which he had been charged. During
argument, it emerged that the applicant’s primary complaint is
the quantum of the
award. Indeed, the applicant submits that ’a
more appropriate award would have been one amounting to approximately
one months’
salary.
[9]
The threshold for review is fairly well-established. Section 145
permits the review
of an arbitration award, amongst other grounds,
where the arbitrator commits a gross irregularity. This extends to
latent gross
irregularities or, put another way, instances where an
arbitrator fails to apply him or herself to the available evidence,
makes
defect of factual findings and the like. In these instances, a
party seeking to set aside an award or ruling must establish both
the
irregularity or defect relied on and that the threshold
established by
Sidumo & another v Rustenburg Platinum mines
Ltd & others
[2007] 12 BLLR 1097 (CC) has been met.
In
Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC), the Labour Appeal Court noted that it is
not sufficient for an award to be set aside simply to establish a
gross irregularity
in the conduct of the arbitration proceedings; it
is incumbent on an applicant to establish that the result was
unreasonable or
‘
put another way, whether the decision
that the arbitrator arrived at is one that falls outside the band of
decisions to which a
reasonable decision-maker could come on the
available material
’. In other words, the review court must
consider whether despite the arbitrator’s reasoning, the result
is nevertheless
capable of justification on the available material.
Thus, material errors of fact on the part of the arbitrator, as well
as the
weight and relevance to be attached to particular facts or a
failure to have regard to particular facts are not in themselves
sufficient
grounds for review; their effect must be to render the
outcome unreasonable.
[10]
What this analysis requires is that the review court determine first
whether the arbitrator perpetrated
any ‘defect’ or
irregularity contemplated by s 145 (2). Secondly, the court must have
regard to the distorting effect
that the error may have had on the
outcome of the arbitrator’s award. Thirdly, if it is reasonably
clear that but for the
identified error relied upon the award would
have been different or cannot stand on its own reasoning, then the
award is
prima facie
an unreasonable award. Finally, the court must have regard to the
issues and the evidence as a whole to determine whether or not
the
outcome is nevertheless capable of being sustained on the
Sidumo
test. Put more plainly, the review court must ask whether but for the
defect, a reasonable decision-maker could have come to the
conclusion
reached in the award on the same material.
[11]
When conducting this analysis, the review court must avoid falling
into the trap of what the Labour
Appeal Court in
Gold Fields
referred to as a ‘piecemeal analysis’ of each of the
arbitrator’s findings. The question to be answered ultimately
is whether on the totality of the evidence, a relationship of
reasonableness exists between that evidence and the result reached
by
the arbitrator have committed.
[12]
The hurdle placed before an applicant in a review application is
purposely set high, and is not easily
cleared. As the Labour Appeal
Court has observed, the line between an appeal and a review must be
strictly maintained, and given
the nature of the test, it is not
often that an applicant will succeed in a review application.
[13]
In so far as the arbitrator’s findings of fact are concerned,
there is no basis for the contention
that the arbitrator either had
regard to irrelevant evidence or failed to have regard to relevant
evidence in coming to the conclusion
that he did. A reading of the
record discloses that the applicant manifestly failed to prove the
charges against the employee.
There is no evidence of negligence or
involvement by the employee in any theft of alcohol. To the extent
that the applicant’s
case would appear to be that the employee
failed to act as Botha’s ‘eyes and ears’ as he had
been instructed
to do, on the face of it, this is not gross
negligence, and it is hardly conduct that would ordinarily warrant
the penalty of dismissal.
The charge of bringing the applicant’s
name into disrepute was fanciful, and as the arbitrator observed, in
the absence of
a finding against the employee on the main charge, it
is not a charge that in any event is capable of being sustained.
Similarly,
there was simply no direct evidence before the arbitrator
to establish the charge of intimidation. It should be recalled that
the
applicable test is not whether the arbitrator’s factual
findings are correct – they must be arbitrary, fanciful, or
so
disconnected from the evidence before interference is warranted.
[14]
In so far as the applicant’s challenge to the amount of
compensation awarded is concerned,
the amount of compensation to be
awarded for an unfair dismissal lies within the arbitrator’s
discretion, subject to the
limit imposed by the LRA, being the
equivalent of 12 months’ remuneration. The arbitrator is
required to take into account
all relevant facts and circumstances
when determining a fair award. In the present instance, the
arbitrator took into account the
brief period of the employee’s
employment, the fact that he had obtained alternative employment and
the fact that his dismissal
had been found to be substantively
unfair. There is no basis in terms of which an award of a months’
salary is appropriate,
as the applicant contends. The employee was
found to have been unfairly treated, and he was entitled to be
compensated for that.
The fact that his length of service was
relatively short does not in itself dictate that a lesser amount
should be awarded –
it is a factor that must be taken into
account with all others. In my view, there is simply no basis to
contend that an award of
four months’ remuneration falls
outside of a band of decisions to which a reasonable decision-maker
could come. Indeed, having
regard to all of the circumstances, I
would not even describe the award as generous, let alone so
unreasonable that intervention
is warranted.
[15]
In summary: I am unable to find that the arbitrator committed any
reviewable irregularity. The
arbitrator rationally assessed the
evidence, and came to the conclusion that the applicant had failed to
prove its case against
the employee. When regard is had to the
totality of the evidence disclosed in the record, that finding is
clearly one to which
falls within the bounds of reasonableness.
Similarly, the award of compensation is not so unreasonable that no
reasonable-decision
maker could have awarded the quantum of some R 22
000 for a dismissal found to be unfair.
[16]
For the above reasons, the application was dismissed.
André van
Niekerk
Judge