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[2020] ZALCJHB 20
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Servest Security a Division of Servest (Pty) Ltd v Nkwane and Others (JR1227/17) [2020] ZALCJHB 20 (31 January 2020)
the
labour court of South Africa, johannesburg
judgmenT
Not reportable
CASE
NO: JR 1227/17
In the matter between:
SERVEST SECURITY A
DIVISION OF
SERVEST
(PTY) LTD
Applicant
And
LUNATHI
NKWANE
First
Respondent
L
SHEAR N.O,
Second
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
Third
Respondent
Heard:
29 January 2020
Judgment
delivered: 31 January 2020
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the
second respondent (the arbitrator) on 2 June 2017. In
his award, the arbitrator found that the first respondent (the
employee)
had been unfairly dismissed and made an award of
compensation in the amount of R15 168.00.
[2]
The employee was employed by the applicant as a security guard. He
was engaged at
the Orlando Stadium on the night of 31 December 2016 –
1 January 2017. The employee was dismissed for failing to inform
control
that he had found beers on the premises, that he had consumed
intoxicating substance while on duty, that he had jeopardized a major
contract, and that he had been grossly negligent in failing to
conduct a proper hand-over when completing his duty on 1 January
2017.
[3]
After hearing the evidence of the applicant’s human resources
manager and the
employee, the arbitrator came to the following
finding:
1.
As indicated the applicant had been found
guilty of failing to do a proper hand-over, consuming alcohol,
failing to protect client’s
property and jeopardising a major
contract.
2.
He admitted drinking a can of beer, but
said that this occurred after he had completed his duty and admitted
handing a can to the
relieving guard.
3.
The applicant said, however, that he was
unaware that any property had gone missing and was only informed at
his disciplinary enquiry.
[4]
The arbitrator went on to reach the following conclusion:
1.
It is correct that drinking alcohol is an
offence by any security official. However, no evidence was brought to
prove that this
had taken place prior to the applicant concluding his
duties. In any event, one would imagine that the fact that this
occurred
on New Year’s Day would be regarded as somewhat of a
mitigating factor.
2.
With regard to the alleged theft of the
television and computer, no evidence was provided regarding this
matter and no evidence
was provided which directly implicates the
applicant. There were two other security guards working the same
shift.
3.
It is my conclusion that the applicant was
not guilty
of the offence regarding the theft, and with regard to the hand-over,
the consumption of alcohol, even if this did occur immediately
after
knocking off, given the date of the offence, and the timing of the
offence, I conclude that dismissal was too harsh.
[5]
The applicant contends that the arbitrator committed a reviewable
irregularity in
making his award in that he failed to apply the
correct approach to determine a material dispute of fact, that he
failed to have
proper regard to the improbability of the employee’s
version that he consumed alcohol after the conclusion of his shift,
that he had regard to irrelevant evidence being that New Year could
constitute a mitigating factor, and that he failed to apply
his mind
to evidence regarding the hand-over to the relieving guard and the
employee’s failure to protect the client’s
property.
[6]
At the hearing of the application, Mr. Mayer, who appeared for the
applicant, abandoned
the attack on the arbitrator’s findings in
respect of the misconduct other than the consumption of alcohol on
duty. In this
regard, Mr. Fuller contended that the record disclosed,
on the employee’s own version, that he had consumed alcohol
during
his shift.
[7]
The test to be applied is one that recognises and reinforces the
distinction between
a review and an appeal. This court must be
particularly cautious not to blur the line, especially where the
grounds for review
smack off no more than a disagreement with the
arbitrator’s findings. This court is entitled to intervene if
and only if
the arbitrator’s decision is one that falls outside
of a band of decisions to which a reasonable decision-maker could
come
on the available material. In
Head
of Department of Education v Mofokeng & others
[2015]
1 BLLR 50
(LAC)
,
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, if 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.
[8]
In the present instance, the record clearly discloses the employee’s
testimony
that he acquired beers from some persons that he had
‘chased away, and that in the company of another guard who does
not
drink, he ‘opened up one beer and I started drinking.’
In answer to the commissioner’s question as to the time
at
which he had started drinking, the employee replied ‘Ten to
six, Commissioner.’ It was not disputed that the employee
worked a 6pm to 6am shift. Given that there is direct evidence by the
employee himself that he commenced drinking before the end
of his
shift, the arbitrator’s conclusion to the contrary simply
cannot be sustained. Had the arbitrator had regard to the
evidence
that served before him, he would have concluded that the employee was
guilty of the offence of drinking on duty. Any conclusion
to the
contrary is unreasonable.
[9]
The applicant contends that all of the relevant evidence is before
the court and that
little purpose would be served by remitting the
matter for rehearing. I agree. The evidence discloses an act of
serious misconduct
by the employee, on his own version. It is not
disputed that the applicant’s disciplinary code provides that
consumption
of an intoxicating substance or drugs while on duty is a
dismissible offence. Drinking in duty is a dismissible offence, and
the
employee was aware of the rule in this regard. I fail to
appreciate how it can be said that the fact that the offence was
committed
on New Year’s Day is somehow exculpatory. The core of
the employee’s duties is to safeguard the property of the
client,
and the strict rule against drinking on duty is obviously
directed against any compromising of this obligation. In the
light
of the seriousness of the employee’s admitted misconduct
and given the nature of his employment, the penalty of dismissal
is
appropriate.
[10]
At the hearing of the application, the employee’s only concern
was that other employees
had also been drinking and that they
remained employed by the applicant. The issue of inconsistency was
not raised at the disciplinary
enquiry, nor was it pertinently raised
as a defence in the proceedings under review. The employee did not
file an answering affidavit
making any averments to this effect, and
made only what amounts to a statement from the Bar. The arbitrator
clearly did not identify
inconsistency as an issue that required his
attention or decision, and no mention is made of it in the award. In
these circumstances,
this is not an issue that is relevant to these
proceedings.
[11]
Finally, the court has a broad discretion in terms of s 162 to make
orders for costs according
to the requirements of the law and
fairness. The applicant is an individual employee whose opposition to
the application is misguided,
but not frivolous. The court is
generally reluctant to make orders for costs against employees who
seek to pursue genuinely felt
grievances in good faith. There is no
compelling reason to order that the third respondent be liable for
the applicant’s
costs.
I make the following
order:
1.
The arbitration award issued by the second
respondent under case number GAJB 3364-17 on 2 June 2017 is reviewed
and set aside.
2.
The award is substituted by the following:
“
The
applicant’s dismissal was substantively and procedurally fair.”
André van Niekerk
Judge
REPRESENTATION
For
the Applicant: Mr. R Mayer, Fullard Mayer Morrison Inc.
For the First Respondent:
In person