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[2019] ZALCPE 12
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Mercedes Benz South Africa (Pty) Ltd v Commission of Conciliation Mediation and Arbitration and Others (PR81/2016) [2019] ZALCPE 12 (21 February 2019)
the
labour court of South Africa, PORT ELIZABETH
judgment
Not
reportable
CASE NO: PR 81/2016
In the matter between:
MERCEDES BENZ SOUTH
AFRICA
(PTY)
LTD
Applicant
and
THE COMMISSION OF
CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
M
NDUZULWANA
N.O
Second
Respondent
NUMSA
Third
Respondent
P.A
WAGENAAR
Fourth Respondent
Heard: 20 February
2019
Judgment
delivered: 21 February 2019
JUDGMENT
VAN NIEKERK J
[1]
The fourth respondent (the employee) was dismissed by the applicant
for breaching a rule
relating to the searching of employees in the
workplace. At the time of the incident that gave rise to his
dismissal, the employee
had 25 years’ service and a clean
disciplinary record. The employee disputed the fairness of his
dismissal, and the matter
was ultimately referred to an arbitration
hearing before first respondent (the commissioner). The commissioner
found that the employee
had been unfairly dismissed and reinstated
him with retrospective effect, but subject to a final written
warning, valid for six
months.
[2]
The charge against the employee was that he had ‘
refused to
show security officer the item’s
(sic)
you had in your
hand when you were requested to do so. You instead pushed the
security officer out of your way in an aggressive
manner and
proceeded to swipe out through the turnstile No 4 and left the
company premises’
. As I have indicated, the charge has its
roots in a policy that applies to the right to search employees. The
policy provides for
the right to search of vehicles and possessions
on a routine basis and further that an unreasonable refusal to comply
with the
policy constitutes misconduct. Indeed, the policy provides
the following:
Employees are therefore
advised that in future, the usual penalty for refusing to be searched
will be dismissal unless there is
some justifiable and acceptable
reason for the refusal. Note that it is not a justifiable and
acceptable reason that the employee
is in a hurry to get home or
catch a lift.
[3]
After a review of the evidence, the commissioner came to the
following conclusion:
20.
I have already found that the employee’s failure to submit to
search was motivated
by a desire to go home quickly. In the
circumstances I do not agree with Mr. Diggins inference that the
employee’s failure
to submit to search was “he did not
wish to be searched and was more likely than not in an unauthorized
possession of the
respondent’s property.” There is not a
scrap of evidence before (sic) substantiating the allegation that the
employee’s
refusal to submit search for he was in fact informed
by a desire to hide the position of the employer’s property.
The evidence
of Ms. Nkumanda is that of the employee over a long time
had a tendency to resist surgeon mode that it was delaying them.
Irrespective
of the fact that such attitude was incorrect, it does
not in my view amount to theft or unauthorized possession of
employer’s
property or dishonesty. Further I do not agree with
Mr. Diggins that the leading of untrue or contradictory evidence at
arbitration
amounts to dishonesty that renders continued employment
relationship intolerable. If that was the case Ms. Ntsholo and Mr
Waters
said the employee was carrying something that looked like an
umbrella when in fact that is not true as demonstrated by the video
footage. The mistake of the employer in this case is that it confused
failure to submit to a search with unauthorized possession
of
employer’s property and dishonesty when in fact are the two are
different. In the circumstances I find that the employer
has failed
to prove that a failure to submit to a search where it is informed by
desire to go home, constitutes the offensive unauthorized
position,
or theft or dishonesty.
[4]
The commissioner went on to find that the misconduct committed by the
employee amounted
to no more than a failure to submit fully to a
search, an offence that
fell
into a category of general offences and breaches of company policy
for the purposes of the applicant’s disciplinary code
and which
ordinarily attracted a final written warning. The commissioner
considered that the effect of the rule was that the security
officer
should complete the search of the employee, and release him or her
thereafter. On this basis, the commissioner concluded
that the
employee had ‘breached the rule regulating search at the
workplace’. In other words, the misconduct committed
by the
employee amounted to his failure to permit the security officer to
complete the search and release him. Specifically, the
commissioner
found that at the time of the search, after an object was detected in
his pocket, the employee had taken his keys
out of his pocket and
held them up. He then moved past the security official and left
before being authorised to do so. The commissioner
concluded:
Having
regard to the business necessity of the rule to submit to search as a
means of risk management to prevent theft and posed
a real risk to
the company, I do not accept that the employee’s failure to
submit to full search was motivated by theft as
Ms. Nkumanda had in
the past managed to conduct the search and had found no unauthorized
removal of the employer’s property
and further on the day in
question there is no evidence put before me proving that the employee
had unauthorized possession of
employer’s property or had
stolen employer’s property.
In
relation to the second element of the charge against the employee,
the
commissioner
found that the employee had not pushed the security official as she
had alleged.
[5]
Having found that the employee had only partially submitted to a
search, and in relation
to sanction, the commissioner said the
following:
22
…The employee asked me to order the employer to reinstate him
retrospectively.
He has been unemployed since his dismissal on eight
to May 2015. I have found that the circumstances surrounding the
dismissal
on that such that a continued employment relationship would
be intolerable and there is no evidence proving that it is not
reasonably
practicable for the employer to reinstate. In the
circumstances I find that reinstatement retrospectively is an
appropriate remedy.
The employee has been without employment since
the date of his dismissal on 8 May 2015 meaning he had no source of
income. I find
that fairness dictates that reinstatement with a final
written warning is a fair sanction to the parties…
[6]
The commissioner proceeded to make an award, as I have recorded
above, that requires
the applicant to reinstate the employee, subject
to a final written warning valid for six months.
[7]
The applicant raises two grounds for review. The first is that the
fairness of the
sanction was never in issue before the commissioner,
and to the extent that he evaluated the fairness of the sanction
imposed on
the employee and granted him relief on that basis, the
commissioner exceeded his powers. Secondly, the applicant contends
that
even if the commissioner had been entitled to consider the issue
of sanction, he failed to apply his mind to the issue in a reasonable
manner and by failing to uphold the employee’s dismissal, he
came to a result that falls outside of the band of decisions
to which
reasonable decision-makers could come on the available material.
[8]
The applicant does not attack the factual findings made by the
commissioner and in
particular, the findings that the employee did
not push the security guard, and that when he was requested to remove
items from
his pocket, the employee removed his keys from his pocket
and held them up while being searched. (The fact that the employee
removed
keys from his pocket was a fact that became apparent only at
the stage of arbitration. However, in the absence of an attack on
this factual finding, I accept the commissioner properly came to the
finding that what the employee had in his pocket and held up
in his
hand was a bunch of his own keys.)
[9]
In short, the undisputed factual findings by the commissioner were
that the employee
had initially agreed to be searched with what is
described as the ‘garret machine’ ( presumably a Garrett
hand-held
scanner), that the scanner detected something in his
pocket, that the security officer asked what it was, that the
employee removed
an item from his pocket and that he refused to
disclose to the security officer what it was, that he later stated
that the object
was a bunch of his personal keys and that he did not
push the security officer as alleged but made his way out of the exit
before
being told that he could do so.
[10]
The test to be applied is clear. This court is entitled to intervene
if and only if the commissioner’s
decision is one that falls
outside of a band of decisions to which a reasonable decision-maker
could come on the available material.
The
locus classicus
remains
Mofokeng
, where the LAC said the following
[30]
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…
[32]
…Mere errors of fact or law may not be enough to vitiate the
award. Something more is required. To repeat: flaws in
the reasoning
of the arbitrator, evidenced in the failure to apply the mind,
reliance on irrelevant considerations or the ignoring
of material
factors etc. must be assessed with the purpose of establishing
whether the arbitrator has undertaken the wrong enquiry,
undertaken
the enquiry in the wrong manner or arrived at an unreasonable result.
Lapses in lawfulness, latent or patent irregularities
and instances
of dialectical unreasonableness should be of such an order
(singularly or cumulatively) as to result in a misconceived
inquiry
or a decision which no reasonable decision-maker could reach on all
the material that was before him or her.
[33]
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.
[11]
More recently, in relation to ‘sanction reviews’, in
Duncanmec (Pty) Ltd v Gaylard NO and others
[2018] 12 BLLR
1137
(CC), the Constitutional Court affirmed that the determination
of the fairness of the sanction of dismissal is a ‘
moral or
value judgment to established facts and circumstances’
. The
court also reaffirmed the nature of the reasonableness enquiry, a
requirement that acknowledges that decision-makers acting
reasonably
may reach different conclusions on the fairness of sanction, and
which ultimately serves to protect parties from decisions
not that
are not reasonable or rational. On this issue, the court concluded:
[40]
As is apparent from
Sidumo
, the genesis of the reasonableness
standard of review is section 33(1) of the Constitution which confers
on everyone the right
to administrative action that is lawful,
reasonable and procedurally fair. Since an award like the one
we are concerned with
here constitutes administrative action, the
Constitution requires it to be procedurally fair, lawful and
reasonable. This
means that an award that fails to meet these
requirements is liable to be set aside on review. These requirements
are in addition
to the grounds of review listed in section 145 of the
LRA. However, to some extent the latter grounds may overlap
with the
constitutional requirements. But the reasonableness
standard is sourced from section 33 of the Constitution alone.
It does not form part of the overlap.
[41]
Sidumo
cautions against the blurring of the distinction
between appeal and review and yet acknowledges that the enquiry into
the reasonableness
of a decision invariably involves consideration of
the merits. So as to maintain the distinction between review
and appeal
this Court formulated the test along the lines that
unreasonableness would warrant interference if the impugned decision
is of
the kind that could not be made by a reasonable decision-maker.
[42]
This test means that the reviewing court should not evaluate the
reasons provided by the arbitrator
with a view to determine whether
it agrees with them. That is not the role played by a court in
review proceedings.
Whether the court disagrees with the
reasons is not material.
[43]
The correct test is whether the award itself meets the requirement of
reasonableness. An
award would meet this requirement if there
are reasons supporting it. The reasonableness requirement
protects parties from
arbitrary decisions which are not justified by
rational reasons.
[12]
Turning then to the first ground for review, the applicant contends
that the only issue that served
before the commissioner and that he
was required to decide was whether the third respondent was guilty of
the offence with which
he was charged. The applicant quotes the
following passage from the award in support of this contention:
It is common cause that
the employees work with valuable motor vehicle items that are
undermined from syndicates thereby necessitating
strict compliance
with the rules to search, honesty, etc. Accordingly, Mr Diggins the
employer has a zero tolerance for non-compliance
with the rules and
regulations thereby making the sanction of dismissal appropriate for
the first offence. It is not in dispute
that the employee was aware
of the rule to submit to search and that the rule was fair.
[13]
In other words, so the applicant submits, once the commissioner had
found that the employee was guilty
of the offence of a failure to
comply with the search policy, that ought to have been the end of the
matter – the commissioner
ought to have found without further
enquiry that the sanction of dismissal was fair. His failure to do so
constitutes a reviewable
irregularity and warrants a setting aside of
the award.
[14]
I am not persuaded that the question of the fairness of the sanction
imposed by the applicant was not
an issue that the commissioner was
required to address. The employee had claimed that his dismissal was
substantively unfair, with
no limitation of the dispute to the
existence or otherwise of the misconduct alleged by the applicant.
There was no pre-arbitration
minute that narrowed the issues to this
single element of substantive fairness. It is clear from the opening
statements that both
the existence of any misconduct and the issue of
the fairness of the sanction imposed were raised. The charge against
the employee
was that he had refused to show the security officer
items in his hand and that he had pushed her out of his way. The
employee’s
representative made specific reference to the trust
relationship (which he submitted had not irretrievably broken down);
the applicant’s
representative made clear that in the
applicant’s view, any form of dishonesty (he included the
employee’s conduct
in this category) breached the trust
relationship irrevocably. Evidence of the applicant’s ‘zero
tolerance’ policy
was given by at least two witnesses (Walters
and MacMaster), who both testified that in respect of offences
involving dishonesty,
an employee found guilty of this form of
misconduct had demonstrated that he or she could not be trusted, and
that was the basis
of the sanction of dismissal in those
circumstances. In the closing submissions filed by the applicant’s
representative,
much was made of the integrity code and the
applicant’s policy of zero tolerance of any form of dishonesty.
Misconduct that
involves an element of dishonesty results in
dismissal, even for a first offence. The issue of trust was
emphasised, as was the
applicant’s right to protect itself
against financial losses son account of theft. The applicant’s
representative submitted
that when an employee refused to be
searched, the inference to be drawn was that the employee has
something to hide, or was in
unauthorised possession of company
property. The sanction for refusing to be searched was the same
sanction for refusing to be
searched – this prevented employees
who were in unauthorized possession of company property from electing
to refuse to be
searched, and thus escaping with a more lenient
penalty. In his submission, the applicant’s not showing an item
from his
pocket on request was tantamount to a refusal to be searched
and a ‘
lesser sanction than dismissal in such circumstances
would create an unacceptable precedent for the respondent. It would
undermine
the effect that the consistent application of the rule had
(by deterrent) on positively mitigating the risk posed to the
Respondent’s
viability’
.
[15]
When regard is had to the record (and in particular, the submissions
made by the applicant’s
own representative), the applicant’s
first ground for review is nothing less than disingenuous. It is no
answer to say, as
the applicant’s representative does in these
proceedings, that the representative in the arbitration hearing was a
lay person
who made submissions according to a template, and that his
comprehensive submissions on a fair sanction were misplaced and
should
be disregarded. The commissioner, like any decision-maker in
these circumstances, was guided by the parties’ submissions.
The commissioner dealt with the submissions made by the applicant’s
representative (as he was obliged to do), and found them
without
merit. The commissioner cannot now be said to have committed a
reviewable irregularity because he had regard to the evidence
and
submissions presented by the applicant precisely to establish the
fairness of the penalty of dismissal.
[16]
To the extent that the applicant contends that the employee conceded
the fairness of the sanction during
the arbitration proceedings, the
applicant relies on the following exchange:
MR DIGGINS: Okay, know
the rules, which means you know the penalty for refusing to be
searched?
MR
WAGENAAR: Yes, dismissal.
MR DIGGINS:
So you know that. If the commissioner decides that he believes the
security
guards version of events do you acknowledge that is that you
refused to be searched and that you should be dismissed?
MR WAGENAAR: Yes.
At best for the
applicant, all that the employee displayed was awareness of the fact
that it is the applicant’s policy to
provide for the sanction
of dismissal for breaches of the rule concerned. While the employee’s
evidence was that dismissal
could in principle be imposed in respect
of any refusal to be searched, the crisp issue before the
commissioner was whether that
sanction was fair, on the specific
facts of the case. Those facts did not disclose a point blank refusal
to be searched. In any
event, the employee’s evidence is
clearly predicated on the commissioner upholding the security guards’
version of
events. In the result, the commissioner did not believe
the security guards. Their evidence was rejected in material
respects,
to the extent that the gravity of the misconduct found to
have been committed was much reduced from what would have been the
case
had their version been accepted in its entirety.
[17]
In short: the commissioner did not commit a reviewable irregularity
by regarding the issue of a fair
sanction as an issue in dispute. The
arbitration hearing was conducted on that basis, and a finding on
that issue was clearly invited
by the applicant’s
representative.
[18]
Turning then to the second ground for review, the basis on which
commissioners must approach the issue
of sanction is described in the
authorities referred to above. In essence, it requires a commissioner
to exercise a value judgment,
having regard to all of the relevant
factors, including the respective interests of the employer and
employee. In the present instance,
the commissioner took into account
the nature of the misconduct which he found to have been committed
(the limited non-compliance
with the search protocol), and the fact
that the nature of the employee’s misconduct was not such so as
to render a continued
employment relationship intolerable. To the
extent that the applicant now contends that the issue of dishonesty
was never in dispute
and that the commissioner erred in making any
finding in this regard, the award must necessarily be scrutinised in
the context
of the material that the parties presented at the
hearing. As I have indicated with reference to the record, the
applicant’s
representative called on the commissioner to make
findings that the employee had breached the search policy, and that
he had pushed
a security guard. Specifically, he submitted that the
employee was guilty of misconduct involving an element of dishonesty,
or
at least that any refusal to search should be equated with
unauthorised possession of company property. To the extent that the
applicant now submits that the very purpose of the rule regulating
searches was to relieve it of the obligation to prove motive
or
intent on the part of an employee and that the issues of dishonesty
and unauthorised possession of company property are consequently
irrelevant, this was not the case made by the applicant at
arbitration. Again, the commissioner made a decision on the material
that served before him, as he was required to do.
[19]
It should be recalled too that the commissioner’s finding on
the facts was that the employee
had not pushed the security guard as
alleged, that he had submitted (initially at least) and that the
nature of his offence was
therefore a partial refusal to submit to
the search protocol, in the form of his leaving the premises before
being instructed to
proceed. While the commissioner’s reasoning
in relation to an appropriate sanction is not spelled out as clearly
as it might
have been, the award read as a whole suggests that what
weighed heavily with him was the limited nature of the employee’s
misconduct in comparison to the more extensive charges that had
formed the basis of the employer’s decision to dismiss.
Clearly, the commissioner thought that the diminished degree of
misconduct was not in itself sufficiently serious to warrant
dismissal,
as opposed to the lesser penalty of a final written
warning. It is also clear that the commissioner took into account the
fact
the employee had 26 years of service with the applicant and had
a clean disciplinary record. To the extent that the applicant submits
that the commissioner ignored the applicant’s proprietary
interests and its interests in preserving the integrity of its
business, these are the considerations that compelled the
commissioner to reinstate the employee subject to a final written
warning.
[20]
In summary: the commissioner did not misconceive the nature of the
enquiry, and there is nothing improper
or unreasonable about the
manner in which he identified the issues in dispute. The decision to
which he came on sanction (and in
particular his decision to
substitute the sanction of dismissal with a final written warning) is
a decision that falls within a
range of decisions to which reasonable
decision-makers could come on the available material.
[21]
Neither party pursued an order for costs. In the exercise of the
discretion conferred by s 162, given
particularly that the parties
are parties to a collective bargaining relationship, the interests of
justice and fairness are best
served by there being no order as to
costs.
I make the following
order:
1.
The application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For the applicant: Mr C
Kirchman, Kirchman Attorneys
For the respondent: Adv.
F le Roux, instructed by Gray Moodliar.