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[2019] ZALCPE 21
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Mafoko Security Patrols (Pty) Ltd v DETAWU obo Magutywa and Others (PR281/2018) [2019] ZALCPE 21 (30 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not reportable
Case
no: pr 281/2018
In
the matter between:
MAFOKO
SECURITY PATROLS
(PTY)
LTD
and
DETAWU
obo L MAGUTYWA
CCMA
J
FORBES N.O
Applicant
First
Respondent
Second
Respondent
Third
Respondent
Heard:
29 October 2019
Judgment:
30 October 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an unopposed application to review and set aside an
arbitration award issued
by the third respondent (the arbitrator) on
21 October 2018. In his award, the arbitrator concluded that the
applicant had been
unfairly dismissed, and ordered that she be
reinstated, but without retrospective effect.
[2]
The material facts are recorded in the award, and I do not intend to
repeat them here.
The grounds on which the review of the award
is sought amounts to assertions that the arbitrator erred in finding
that the
first respondent (the employee) had not committed an act of
insolence; and secondly, that the arbitrator erred in finding that
the applicant had not refused to work on 24 June 2018. In the result,
the applicant contends that the arbitrator reached a decision
that no
reasonable decision-maker could have reached in the circumstances.
[3]
In regard to the events of 24 June 2018, the arbitrator accepted the
employee’s
evidence in his finding to the effect that ‘it
would be nonsensical that the [first respondent] would report for
duty and
yet refuse to work and for no apparent reason just leave.
There is no evidence to suggest that the first respondent’s
reason
for leaving was related to the phone call she received. It is
uncontested that someone else was already in place.’
[4]
The evidence presented by the applicant was that the employee’s
phone rang,
and that she left her supervisor while the supervisor was
speaking to. The applicant’s witnesses further confirmed that
when
they returned to the guardhouse after a parade, the employee had
left. The employee testified that when she arrived at work on 24
June
2018, she was told not to sign in and to call back the driver as she
had already been replaced. The procedure applicable in
the
circumstances was explained by a witness for the applicant who stated
that both parties (i.e. the party being replaced in the
party
replacing the other party) must sign a document to this effect, the
party being replaced is required to attend the parade
is that a party
may be assigned to another site, and that on the day in question, the
employee had not been replaced by someone
else. It is not disputed
that the employee did not attend the parade, noise disputed that she
left a place of employment are in
order to return home. The
arbitrator’s findings do not account for this evidence and
appear to suggest that it was open to
the applicant simply to leave
her employer’s premises once she had ascertained that she had
been replaced. His conclusion
that the applicant was not posted and
was never going to be posted on 24 June 2018 ignores the evidence
that was led.
[5]
In regard to the charge of insolence, the arbitrator finds at
paragraph 42 of his
award that the employee had, in effect, being
charged with failure to cooperate with her employer. The arbitrator
draws a distinction
between that form of conduct and insolence and
decides that while the evidence established that the employee was
‘rude and
cheeky’, the objective reality was that she had
been charged merely with being uncooperative. On this basis, the
arbitrator
concluded that if the applicant was of the view that the
employee’s conduct amounted to insolence, she ought to have
been
charged with insolence and not with failure to cooperate. What
this conclusion ignores is the heading to the charge which is clearly
stated as ‘Insolence’. The essence of the charge against
the employee was one of insolence. Further, the arbitrator
was
required to take a holistic view of the nature of the misconduct
alleged. This court has often emphasised that arbitration
hearings
are not criminal proceedings and that allegations of misconduct
should the dealt with on the basis of the substance of
the misconduct
and not the particular label attached to it. It would appear from the
arbitrator’s own assessment of the evidence
that he regarded
the employee’s conduct as serious – it is only the
labelling of that conduct is a failure to cooperate
that persuaded
him that it was not sufficiently serious to warrant dismissal. In
this regard, in my view, the arbitrator committed
a reviewable
irregularity by failing to have regard to the substance of what it
was that the employee was alleged to have done.
Had he done so, he
would have concluded that the employee’s actions amounted to
acts of serious misconduct.
[6]
For the above reasons, in my view, the award is reviewable and ought
to be set aside.
The court has a discretion as to whether the matter
should be remitted for rehearing, or whether it ought properly to
substitute
the award. Ordinarily, where the record is complete (as it
is in the present instance) and where a rehearing would serve no
purpose,
the court is inclined to substitute the arbitrator’s
award for one that ought to have been made. In the present instance,
in my view, no purpose would be served by ordering
a rehearing of the matter. The record is complete and the
court is in
as good a position as any arbitrator would be to determine the
dispute. As the evidence referred to above indicates,
the employee
committed serious acts of misconduct by leaving her workplace on 24
June 2018 and also by addressing her supervisor
in the manner that
she did. What counts heavily against the applicant is heard
disciplinary record, to which the arbitrator referred.
Having regard
to all of the relevant facts and circumstances, dismissal is an
appropriate sanction and the employer’s decision
to dismiss the
employee ought to be upheld
[7]
Finally, the applicant sought costs only in the event of the
application being opposed.
The issue of costs accordingly does not
arise.
I
make the following order:
1. The
arbitration award issued by the third respondent under case number
ECPE 4702 – 18 on 21 October 2018
is reviewed and set aside
2. The
arbitrator’s award is substituted by the following:
‘
The applicant’s
dismissal was substantively and procedurally fair, and the referral
is dismissed’.
Andre
van Niekerk
Judge
Appearances
For
the applicant: Adv. Van Wyk, instructed by AH Stander Attorneys