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[2019] ZALCCT 18
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Shumane v CCMA and Others (C143/2018) [2019] ZALCCT 18 (2 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
No: C143/2018
In the matter between:
THANDISIZWE
TERIUS SHUMANE Applicant
And
CCMA
First
Respondent
COMMISSIONER
S MOHAMED
Second Respondent
BCS
SECURITY SERVICES (PTY)
LTD Third
Respondent
Date
heard: 7 May 2019
Delivered:
2 August 2019
JUDGMENT
RABKIN-NAICKER, J
[1]
This is an unopposed application to review an arbitration award under
case number WECT 4852&486/18.
The second respondent (the
Commissioner) found that the suspension of the applicant on full pay
did not constitute an unfair labour
practice and that his dismissal
was substantively and procedurally unfair.
[2]
The applicant was employed by the third respondent (the Company) in
May 2017 and was suspended and then
dismissed in November 2017. He
has prepared his review unassisted. From his founding and
supplementary affidavit it is difficult
to discern review grounds
except that the applicant believed that the Commissioner was ‘against
him’ and did not deal
with his evidence properly. In an
unopposed case like this it is important that the Court carefully
consider all the evidence before
the Commissioner lest the matter is
simply dismissed on the basis that an applicant is unable to express
his grounds of review
in the ways that a legal representative may do.
[3]
The issue to be decided in the arbitration proceedings was recorded
as follows in the Award:
“
The
applicant referred an Unfair Labour Practice dispute as well as an
Unfair dismissal dispute. I am required to determine whether
applicant’s dismissal on 17 November 2017 was unfair as claimed
by the applicant. I am also required to determine whether
the
applicant’s dismissal on 17 November 2017 was substantively and
procedurally unfair. The applicant was dismissed for:
Abusive,
derogatory and insulting language which refers to the uttering of any
words, written expression of showing of hatred,
ridicule or contempt
for any person; Allegedly being under the influence of alcohol as
well as Refusal, failure to carry out a
reasonable or lawful
instruction. The applicant is claiming that his dismissal was
substantively and procedurally unfair.”
[4]
The evidence given by the Operations Manager of the employer at
arbitration, Mr de Vries was to the
effect that the applicant was
dismissed for the above charges. However, the record of the
disciplinary hearing held on the 17 November
2017, which was before
the Commissioner, and comprising of a standard form filled in by the
chairperson of the hearing, recorded
that the reason for the
applicant’s dismissal was that he “laid a false claim to
CCMA that he was dismissed without
a hearing whilst investigation is
still ongoing.” This one can assume related to the premature
referral of a dismissal dispute
by the applicant who claimed he
regarded himself as being dismissed on 9 November 2017, when he was
told to go home and that his
shifts would be cancelled while an
investigation was underway.
[5]
The Advice of Dismissal form filled in by the Chairperson, Lovell
Smith, also states that the applicant
was found guilty of the
following
two
charges:
“
Submitting
false charges at the CCMA of Dismissal pending a Hearing
Abusive,
derogatory or insulting language.”
[6]
The bundle before the arbitrator also contains statements by the
employer’s witnesses at
the disciplinary , as to
the events on the night of 8 November 2017. Included in these
is that the SAPS when called in to
test the applicant confirmed that
he was not intoxicated. The Award records that the applicant said in
his testimony that he was
subjected to a breathalyzer test by the
police and that therefore the charge of allegedly being under the
influence of alcohol
was omitted at the disciplinary hearing.
[7]
From the above, it is evident that the Commissioner made a mistake in
stating that the applicant was
dismissed for inter alia being
allegedly under the influence of alcohol. Despite there being no
legal representatives at the arbitration,
the Commissioner also did
not ask the witnesses about the reasons for the dismissal as
reflected in the Disciplinary Report and
Advice of Dismissal. She did
however question the Chairman of the Hearing about the disciplinary
report regarding other issues.
[8]
These mistakes by the Commissioner were material. However, this Court
must take its enquiry a step further
and ask whether these
irregularities led to an Award that a reasonable decision-maker could
not make
[1]
. The evidence on the
charge of abusive, derogatory or insulting language, for which the
applicant was also dismissed, requires
to be considered.
[9]
The Commissioner recorded the applicant’s case at arbitration
as follows:
“
9.
Thandisiwe Shumane, the applicant testified that on 08 November he
was at the site. Another security official arrived at the
site in his
vehicle and hooted. He approached the gentleman and asked him what
the problem is. This person told him to be quick
and open the gate.
He, the applicant told the person that he can wait until he opens the
gate then he can leave and if he cannot
wait till he opens the gate
then he can go if he has a problem An argument then ensued between
him and the person. The person left
and he, the applicant reported
the incident. Franklin, the Control Room supervisor told him that he
should not come to work with
an attitude. The other controller tried
to intervene between him and Franklin on the radio. The supervisor
arrived with the breathalyzer
test and Franklin told him to take the
test. According to the applicant he asked the Franklin if the
breathalyzer test was for
him and what the procedures were regarding
breathalyzer tests.
10.
He refused to do the breathalyzer test because the respondent was
infringing on his rights. Another guard was sent to the site
to
relieve him. He refused to leave the site because he wanted to prove
to the respondent that he was not drunk and that he was
able to work.
Franklin called the police who arrived at the site. The police
informed him he was disrupting the workplace. The
police officer
conducted a breathalyzer test and left him at the site. According to
the applicant he did nothing wrong and if he
did, the police would
have taken him away from the site. The following day he received a
message to report to the office. When
he reported to the office, he
was informed by the manger that he does not know anything about the
message and that he should go
home. The applicant further stated that
he was supposed to report for duty but was prevented from doing so.
He reported the matter
to the Commission and when he took the
documents to the respondent, he was issued with a notice to attend a
hearing.”
[10] It is
apparent from the applicant’s own evidence that he did argue
with the person who tried to enter the
site and hooted. He also
confirmed that he knew the person who came every day and was working
at the power station. The transcribed
record reflects the following:
“
PRESIDING
OFFICER: Then why did you not allow him in that specific day?
MR
SHUMANE: Because he was fighting me he said if I don’t want to
open this gate because I was busy opening the gate for him
because he
had an attitude – I did open the gate and I said if you don’t
want come in you may go.”
[11] Mr
Franklin did not give evidence at the arbitration. However, the
applicant on his own version stated he was argumentative
with
Franklin and the person who came to the site; that he refused to let
the company take a breathalyzer test and to leave the
site when
instructed to. The Commissioner records that at the disciplinary
enquiry: “.the applicant acknowledged that he
was cross at
everybody and offered to apologize. This leads me to believe that the
applicant was aware that his behaviour was unacceptable
and that he
was in fact guilty of misconduct.”
[12] The
Commissioner further took into consideration the evidence given by
the employer that all the guards posted
on the site were aware that
if a government official comes to the site then they should be
allowed access as the site is a national
key point. In addition, she
accepted that the breathalyzer procedure forms part of the company’s
code of conduct and that
the control room supervisor, Franklin, is
part of management and the applicant had to follow instructions given
to him.
[13]
Given the gross insubordination of the applicant, the Commissioner’s
finding that dismissal was a fair sanction
in the circumstances,
cannot be described as one a reasonable decision-maker could not
make. In addition, her finding on the issue
of the applicant’s
suspension is not susceptible to review, given that he was paid
during that period. In all the circumstances,
I make the following
order:
Order
The
review application is dismissed.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
In person
[1]
See
Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus
Curiae)
2013 (6) SA 224
(SCA); (2013) 34 ILJ 2795 (SCA) et al