IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J3054/98
In the matter between:
CITY LODGE HOTELS LTD Applicant
and
ANNELIE GILDENHUYS NO AND OTHERS Respondent
JUDGMENT
MARCUS AJ:
[1] On 9 September 1998 the first respondent ("the
Commissioner") delivered an arbitration award in which she held
that the dismissal by the applicant ("the company") of Eunice
Mathe, Maggie Ngomane and Gladys Mkwanaza ("the
employees") was substantively unfair. The Commissioner
ordered the reinstatement of the employees with retrospective
effect.
[2] The company now seeks to review and set aside the
arbitration award in terms of section 145 of the Labour Relations
Act, 66 of 1995 ("the Act").
[3] The company conducts business as a hotel at a number of
business centres including the Johannesburg International
Airport. The company employees approximately 30 employees
at its Johannesburg International Airport Town Lodge. The
employees were all employed at Town Lodge Airport before their
dismissal.
[4] At the time of their employment by the company the
employees were all furnished with a staff handbook setting out
the rules and regulations applicable to their contracts of
employment. Furthermore, the employees were required to sign
acknowledgements confirming that they had received a copy of
the staff handbook and had read it. It is clearly stated in the staff
handbook that unauthorised removal of company property may
lead to the summary dismissal of an employee. A sanction of this
sort in the hotel industry is common and understandable.
[5] On or about 3 April 1998, as a result of information
received from other employees, Dorothy Mchunu, a housekeeper
employed by the company, investigated a particular incident in
which it was suspected that there had been unauthorised
removal of company property. Pursuant to this investigation the
company furnished the employees with a notification to attend a
disciplinary enquiry. These notices advised the employees that
they were to be charged with "unauthorised removal of company
property on Wednesday, 1 April 1998 without prior permission
from management and without the required pass out forms".
[6] The disciplinary enquiry was held on 6 April 1998. The
employees were found guilty and dismissed.
[7] An internal appeal was unsuccessful. The employees
thereafter declared a dispute and the matter was referred to the
CCMA for arbitration. As I have already indicated, the
Commissioner ordered the re-instatement of the employees.
[8] The company now seeks to review the arbitration award
handed down by the Commissioner. It is appropriate to highlight
certain aspects of the arbitration award.
[9] Under the heading "Background to the Issue" the
Commissioner states the following in her award:
"The company dismissed the employees for unauthorised
removal of company property on the 1st April 1998
without prior permission from management and without
the required pass out form. The company have specific
rules with regard to the removal of any property from the
premises of their hotels no matter what the value of it
may be. The company stated that there are no exceptions
to this rule. The company dismissed the employees for
removing certain items from the premises of the hotel.
The dispute revolves around the fact that the company
did not find the goods on the employees and further that
the security guard did not catch them leaving the
premises with the goods. The company stated that there
was, however, a certain procedure to be used if hotel
items were regarded as not being usable any more. The
procedure would require of such items to be sold to
individual employees of the hotel or be donated to
charity. The company stated that they hardly ever gave
away non-usable items to employees at no cost. The only
items would be given away if items were of no value at
all.
The union did argue that the dismissals were unfair
because the employer did indeed not prove that the
employees did remove the items from the company and
that the penalty of dismissal was inappropriate."
(emphasis added)
[10] Later on in the award the Commissioner states the
following:
"The procedures and rules referred to in the employee
handbook 'unauthorised removal of any items including
lost property' is not contested by the employees. It is
accepted that the rule and procedure regarding the
authorisation to remove certain items from the premises
of the hotel is well established and that the employees
knew the procedures. ... The reason for importing such a
rule is also accepted and that the company consistently
applied the rules regardless of what the monetary or
other value of goods might be. ...
The employees admitted their knowledge of the rules
which means that the items in question would either be
donated to charity or sold to employees."
[11] I should pause to explain at this point that there is a
system in place at the company in terms of which items collected
from guests' rooms are taken to what is called a compacting
room where they are compacted. It has been explained to me
that this process entails a form of crushing the goods into blocks
for ultimate disposal.
[12] In the arbitration award the Commissioner states further:
"The employee responsible for the compacting of goods
confirms ... his intention with these items was to compact
them. This is a clear indication to the three employees
that the goods were not to be donated or sold but indeed
compacted. The company witness, Mr Simon Ramuthla,
testified that the goods were in the compacting area and
that he compacted them ..."
[13] In her award the Commissioner found that Simon Ramuthla
"admitted to compacting everything in the compacting room".
The Commissioner concluded that the employees could thus not
have removed the goods. She stated further, however, that the
employees all admitted to taking goods which they believed were
to be compacted.
[14] It is not entirely clear to me what the Commissioner
intended to convey by this, but as will appear in due course, she
filed an affidavit in clarification of certain issues.
[15] There are disputes of fact on the papers. Subject to what I
shall say in due course, these disputes fall to be determined
according to established principles (see Plascon-Evans Paints Ltd
v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)). I propose
to highlight what in my view are the most important of these
disputed issues. In the founding affidavit deposed to on behalf of
the company, the following is stated:-
"5.20The applicant presented its evidence at the
arbitration proceedings. Mchunu again testified that the
affected employees had all admitted to her that they had
removed items of clothing from the compacting area
without obtaining the necessary pass outs from
management of the applicant. Neither Mr Swabilo nor the
affected employees challenged this evidence under cross-
examination.
5.21 Ramuthla also testified at the arbitration
proceedings and again confirmed that he had witnessed
the affected employees removing items of clothing from
the compacting area. Ramuthla conceded under cross-
examination by Mr Swabilo that he had not told the
affected employees not to remove the items of clothing
from the bags in the compacting area.
5.22 At no stage during the arbitration proceedings did
Ramuthla testify that he had compacted the items of
clothing which had been removed from the bags by the
affected employees.
5.23 The affected employees all testified at the
arbitration proceedings. Their versions were virtually
identical in that they admitted that they had removed
items of clothing from the said bags but intended
securing pass outs for these items of clothing before
leaving the applicant's premises. However, after
returning from their change room in order to collect the
removed items of clothing, the affected employees
testified that the items of clothing had been removed,
presumably by Ramuthla who had compacted them."
[16] The Commissioner, while abiding the decision of this court,
furnished a brief affidavit in amplification of the reasons for her
award. The relevant part of this affidavit states:
"Based on the evidence presented to me at the arbitration
I was satisfied that on a balance of probabilities the
applicants were not guilty of misconduct and did not
knowingly breach the rules of the employer. Contrary to
the applicant's statement that there were no
(admissions), there were several (admissions) to taking
the items from the bags which they found in the compact
room from all the witness (as per my notes). However,
they did not remove it from the company premises
without the necessary pass out as the charge read. The
goods were never removed from the premises and (they)
had been compacted. I disagree with paragraph 5.22 ...
of the founding affidavit ... The company witness, Mr
Ramuthla did indeed concede under cross-questioning
and did testify that he had compacted the items which
had been removed from the bags. This weighed heavily in
my mind and was noted by me in my notes at the
arbitration. The employees testified that they did not
obtain a pass out because the goods had been compacted
and they did not remove (them)." (emphasis added)
[17] Central to the charges preferred against the employees is
that they "removed" the goods in question. In this regard the
Commissioner has made a clear finding which she has amplified
in her affidavit. Mr van As, who appeared on behalf of the
company, conceded that if there was evidence to support these
findings, the arbitration award would be unassailable.
[18] The test for review has been authoritatively laid down by
the Labour Appeal Court in Carephone (Pty) Ltd v Marcus NO and
Others (1998) 19 ILJ 1425 (LAC). The question that must be
posed is whether there is "a rational objective basis justifying the
connection made by the administrative decision-maker between
the material properly available to him and the conclusion he or
she eventually arrived at" (at 1435E). The Labour Appeal Court
also pointed out (at 1439A-B) that where there is a dispute of fact
"the commissioner's version must be accepted as there was no
application in the court below for oral evidence to be heard on
the disputed issue".
[19] Although the primary relief that Mr Van As seeks is the
review and setting aside of the arbitration award, in the
alternative, he asks for a limited reference to evidence
concerning the evidence of Mr Ramuthla. The passage from the
Carephone case ( supra) dealing with the possibility of referring
the disputed issues to evidence should not be misunderstood.
Although the Labour Appeal Court did not elaborate on this issue,
I do not understand this passage as signifying a departure from
long established precedent that persons exercising statutory
adjudicative functions, such as magistrates and members of
licensing boards, should not ordinarily be subjected to cross-
examination concerning the performance of their functions, save
in special cases (see Swart v Van der Merwe 1943 AD 629 at 647;
Daitsh and Another v Osrin and Another (2) 1950 (2) SA 343 (c);
Clairwood Motor Transport Co Ltd v Pillay and Others 1958 (1) SA
245 (N); Johannesburg City Council v The Administrator,
Transvaal and Another (1) 1970 (2) SA 89 (T); Cape Town
Municipality and Another v Bethnal Investments (Pty) Ltd and
Another 1972 (4) SA 153 (C)).
[20] I do not suggest that a reference to evidence will never be
competent nor do the authorities state as much. Nevertheless a
reference to evidence entailing the examination and cross-
examination of a Commissioner on the performance of his or her
function ought to be strictly confined to cases where such is
necessary to serve the ends of justice.
[21] It is not necessary for purposes of the present case to
attempt to delineate the circumstances in which such a
possibility might arise.
[22] The Labour Appeal Court in the Carephone case ( supra)
was also at pains to insist that the distinction between review
and appeal must be maintained. The mere fact that I may have
come to a conclusion different to that of the Commissioner does
not justify interference on review. The fact that a Commissioner
may have misconstrued a particular piece of evidence which has
no material bearing on the outcome of the arbitration award, also
does not justify interference on review. Where a Commissioner
makes findings of credibility and this is relevant to the conclusion
reached, it is more difficult to sustain the review.
[23] In the present case the attacks on the arbitration award are
summarised by Mr van As in his heads of argument as follows:
(a) The commissioner failed to take account of the admissions
to Mchunu by the employees immediately after the incident;
(b) She failed to take account of the evidence of Ramuthla who
testified that the employees had in fact removed the clothing
from the compacting area;
(c) She failed to take account of the admissions of the
employees during the arbitration proceedings that they had in
fact removed the items of clothing;
(d) She failed to have regard to the failure by the employees to
secure a pass out in order to remove the items of clothing from
the premises.
(e) She misconstrued the evidence of Ramuthla in concluding
that he in fact compacted the items of clothing.
[24] I have already indicated that the Commissioner has
furnished an affidavit in which she emphasises that it was not
proved that the employees removed the items in question from
the company premises and moreover, she reiterates the finding
that Mr Ramuthla did concede under cross-examination and did
testify to the effect that he had compacted the items in question.
[25] Mr van As has drawn specific attention to the notes of the
arbitration proceedings which have been furnished by the
Commissioner. The proceedings before the Commissioner were
not mechanically recorded and the sole record of what transpired
consists of the handwritten notes of the Commissioner. Without
in any way being critical of the Commissioner, it should be
pointed out that these notes do not purport to be a verbatim
transcript of what transpired and in certain instances are not
easy to follow. This is perfectly understandable given the
absence of any means for recording the proceedings
mechanically.
[26] From the Commissioner's notes it emerges in relation to
the evidence of Eunice Mathe, that she admitted to taking certain
items. The notes also reflect, however, that Eunice Mathe
testified that she would have obtained a pass out for those
goods. It is also reflected in the notes that Eunice Mathe was
questioned about alleged discrepancies between her oral
evidence before the Commissioner and the evidence that
appears in the transcript of the disciplinary enquiry.
[27] With regard to Emily Kathide, Mr van As places reliance on
the following passage from the notes, I shall reproduce that
passage as it is recorded in the Commissioner's notes:
"I had knocked off already, dressed in my own clothes, to
get drink from kitchen. On my way back at the
compacting area I saw Maggie and security at the
compacting room. I then asked them what they were
doing there. They then said it was items that was thrown
away. I then asked them - if this was for (indistinct). I
then asked security - if I take it won't you say I need a
pass out. I am in a hurry, I won't see Dorothy - I have
taken ... I took serviettes and an apron. I put them aside
at laundry to fetch my bag. When came back security
searched my bag. Used them at home to clean."
Mr van As argues that this is indicative of an admission of guilt.
The very next sentence, however, in the Commissioner's notes
reads as follows:
"Did you take them home? (No)."
It is not clear to me why the answer to this latter question is in
brackets. Nevertheless the difficulty remains that on this
passage it is not possible for me to reach a conclusion adverse to
the Commissioner's finding that the employee did not remove the
item from the company's premises.
[28] With regard to Gladys Mkwanaza, the Commissioner's
notes reflect that she "chose one apron and one doek".
Seemingly in response to the question as to whether she took
these items home, the answer is recorded "no I did not take it
home, I was going to look for a pass out". The Commissioner’s
notes also reflect that Gladys Mkwanaza was questioned on
apparent discrepancies between her evidence before the
Commissioner and the transcript of the proceedings of the
disciplinary enquiry.
[29] With regard to the evidence of Simon Ramuthla, Mr van As
has drawn my attention to the arbitrator's notes in which this
witness deals with the issue of compacting the items in question.
At one point in the notes it appears to be reflected that Mr
Ramuthla was told not to compact these goods by presumably
Dorothy Mchunu. It is also reflected in the notes that he was told
not to touch these goods. On the same page of the notes,
however, there appears the statement "I compact everything
where I am working" and "everything I see must be compacted".
Again, without intending any criticism of the Commissioner, it is
not clear from these notes whether or not the witness in fact
testified that everything had been compacted or whether he had
been told not to compact these goods and gave effect to that
instruction.
[30] From the perspective of the company seeking to review
these findings, it faces the difficulty that the record at least
discloses evidence which seems to support the conclusions
reached.
[31] Mr van As also argued that the Commissioner ignored the
minutes of the disciplinary enquiry. There was a suggestion by
Mr Zibi, who appeared for the employees, that the status of these
minutes was uncertain. For purposes of the review proceedings,
however, it is quite clear that the transcript of the disciplinary
enquiry is stated to be a fair reflection of what transpired and this
is not disputed. It is not entirely clear what status was accorded
to the transcript of the disciplinary enquiry at the arbitration
proceedings. What is clear, however, is that these minutes were
placed before the arbitrator. It not infrequently occurs that an
arbitrator will be confronted with a conflict between the oral
evidence presented at an arbitration hearing and matter
contained in documents which are placed before the arbitrator.
In such cases the Commissioner may frequently be at a
disadvantage due to lack of opportunity to study the
documentary evidence. It is perfectly permissible for a
Commissioner to test discrepancies that emerge between the
oral evidence and the documentary evidence. Indeed this
occurred to a limited extent in the present matter. Both Eunice
Mathe and Gladys Mkwanaza were questioned about apparent
discrepancies between the oral evidence and the record of the
disciplinary enquiry. In my view, therefore, it is not open to the
company to assert that the Commissioner failed to have regard
to the minutes of the disciplinary enquiry.
[32] On this issue, however, it should be emphasised that where
the issues in dispute are not dependent on matters of evaluation
and judgment it will be easier to test the result arrived at against
the constitutional standard of justifiability. However, much of the
work of Commissioners in arbitration proceedings is precisely
concerned with matters of judgment and evaluation.
[33] At common law, while it is clear that an official vested with
a statutory discretion is obliged to take into account all relevant
considerations and to ignore irrelevant considerations, it is
frequently no easy task to determine what is relevant or
irrelevant, as the case may be. Milne AJ in Estate Geekie v Union
Government and Another 1948 (2) SA 494 (N) at 511 postulated
this test:
"Allowing that if some consideration were taken into
account which was so manifestly alien and irrelevant that
no reasonable man could regard it as relevant, that might
vitiate the decision arrived at as a result of it (depending
upon the degree to which the intruding factor influenced
the decision) .."
The corollary of the rule requiring an official to ignore irrelevant
considerations is that such official must take into account
relevant considerations. Even here, however, a court will be slow
to prescribe the weight to be accorded to such considerations.
The position in English law has been summarised thus:
"When the courts review a decision they are careful not
readily to interfere with the balancing of considerations
which are relevant to the power that is exercised by an
authority. The balancing and weighing of relevant
considerations is primarily a matter for the public
authority and not for the courts. Courts have, however,
been willing to strike down as unreasonable decisions
where manifestly excessive or manifestly inadequate
weight has been accorded to a relevant consideration."
(De Smith, Woolf and Jowell, Judicial Review of Administrative
Action (5th ed) at 557 para 13-015).
[34] I do not wish to be understood as suggesting that the
common law tests are the same as the constitutional standard of
justifiability. I cite the common law authorities as illustrative of
the difficulties in interfering on review with decision-making
functions involving matters of judgment and evaluation. Each
case would however, have to be considered on its own merits.
Even in matters involving judgment and evaluation, the Court is
not relieved of its duty to scrutinise the reasons furnished against
the standard of justifiability.
[35] The present case, however, poses considerable difficulties.
They are exacerbated by the fact that there is no verbatim
transcript of the arbitration proceedings and all that is before the
court is the handwritten notes of the Commissioner. Mr van As
has sought to extract various aspects of the evidence reflected in
these notes. It is not permissible to consider these aspects of
the evidence in isolation and draw the conclusion that there has
been a clear failure by the Commissioner to consider the issues in
dispute. In my view, and notwithstanding factors pointing to a
suspicion of misconduct on the part of the employees, it is simply
not competent to interfere with the arbitration award on review.
[36] In the result the application is dismissed with costs.
________________
G J MARCUS
ACTING JUDGE OF THE LABOUR COURT
DATE OF HEARING: 11 JUNE 1999
DATE OF JUDGMENT: 11 JUNE 1999
For the applicant: Adv M Van As
Instructed by Hofmeyr Herbstein
For the Respondent: Mr V Zibi
SACCAWU