IN THE LABOUR COURT OF SOUTH AFRICA
CASE NUMBER : J 450/99
In the matter between :
PARK HYATT HOTEL Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER M MATJANE Second
Respondent
THE ENTERTAINMENT CATERING COMMERCIAL
AND ALLIED WORKERS UNION OF SOUTH AFRICA Third
Respondent
CHARLES MALOI Fourth
Respondent
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J U D G E M E N T
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KENNEDY A J
[1] The Applicant seeks to have an award of the Second
Respondent, a Commissioner of the CCMA dated 24 December
1998, reviewed and set aside in terms of section 145 of the
Labour Relations Act No 66 of 1995.
[2] In the award, the Second Respondent (" the
Arbitrator") found that the decision by the Applicant to dismiss
the Fourth Respondent was unfair. He ordered the reinstatement
of the Fourth Respondent with retrospective effect for a period
specified in the award.
[3] The Applicant's original decision to dismiss the Fourth
Respondent arose from an incident in which he had, in his
capacity as a laundry assistant, cleaned a pair of valuable shoes
belonging to one of the hotel guests in a manner which, it is
common cause, rendered them unfit for use. He used a dark
shade of shoe polish inappropriate for the light colour of the
shoes, and also polished over the laces of the shoes, which were
in the process ruined.
[4] The Arbitrator rightly accepted that the offence was
not trivial, having regard to the financial loss occasioned by the
Fourth Respondent's conduct and the anger and frustration of the
hotel guest. The Arbitrator found further that the Fourth
Respondent was not grossly negligent, that the Applicant should
have applied a lesser sanction, and that in the circumstances the
sanction of dismissal was inappropriate. The Arbitrator also
concluded that the dismissal was unfair from a procedural point
of view, in that the Fourth Respondent had not been allowed to
be represented at the disciplinary enquiry.
[5] When regard is had to the evidence before this Court
of what was presented before the Arbitrator during the
arbitration proceedings, a number of serious concerns arise as to
the Arbitrator's approach to the material before him. Of
particular concern is his apparent disregard for and his failure to
deal in any meaningful way with evidence which was presented
on the Applicant's behalf to the effect that the Fourth Respondent
had been counselled on a number of occasions concerning his
poor performance and that he had been given a final warning for
similar past poor performance. The Arbitrator appears to have
misconstrued the nature of the charge of which the Fourth
Respondent had been found guilty and for which he had been
dismissed during the disciplinary enquiry. That charge was not,
as the Arbitrator appears to have assumed, gross negligence, but
poor performance. He appears to have disregarded the
uncontradicted evidence presented to the arbitration to the
effect that the employer applied particularly high standards
which it justified in the context of its need to provide a top quality
service as a high grade hotel serving the needs of demanding
guests. It cannot afford to have employees who are guilty of
repeated poor performance. In my view there is considerable
merit to the submission made by Mr Woodhouse, the Applicant's
attorney who argued the matter on its behalf before me, that the
Arbitrator appears to have considered the offence effectively " in
a vacuum and in isolation".
[6] Similarly, the Arbitrator appears not to have applied
his mind properly to the issue of procedural fairness. He
accepted the version of the Fourth Respondent that he had been
refused his request to be allowed representation at the
disciplinary enquiry. The Arbitrator does not deal in any
meaningful way with the clear evidence of Ms Moruwe, who
testified on behalf of the Applicant, that she had been present at
the disciplinary enquiry, that the Fourth Respondent had
specifically been offered the opportunity to be represented and
that he had elected not to be represented. The Arbitrator failed
to deal with this evidence and in particular failed to show any
process by which the completion versions were assessed
particularly in relation to their credibility and the weight to be
attached to the competing versions, and he fails to give any
reason why the Fourth Respondent's version should be accepted
while that of Ms Moruwe should be rejected.
[7] The relevant test to be applied in reviews of
Commissioners' awards under the Labour Relations Act is one of
substantive rationality or " justifiability". This requires that
there must be " 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. Carephone
(Pty) Limited v Marcus N.O and Others (1998) 19 ILJ 1425
(LAC) at 1435 D - F."
As stated by Pretorius A J in Abdull and Another v Cloete N.O
and Others [1998] 3 BLLR 264 (LC) at 270 I:
"The Arbitrator is obliged to resolve apparent
contradictions which is essential to his decision and
reasons and to make findings thereon. These findings
must be reasoned findings."
[8] In my view the approach of the Arbitrator in the
present matter fails to satisfy this test. For the reasons set out
above, I conclude that the Arbitrator failed to apply his mind
properly and reasonably to the matter. The decision cannot be
said to be one which is reasonably justifiable. Accordingly the
award falls to be reviewed and set aside.
[9] Mr Woodhouse urged that I should substitute my own
finding for that of the Arbitrator, rather than remitting it to the
Commission for Conciliation, Mediation and Arbitration for a fresh
hearing before another Commissioner. In my view, this would not
be appropriate, particularly where factual issues require to be
determined on the basis of a proper assessment of the credibility
of the various witnesses. That would require the benefit of vivo
voce evidence, and also a proper assessment of the nuances
and complexities related to what would be an appropriate
punishment for the misconduct which was admitted by the Fourth
Respondent. In my view, the most appropriate way of dealing
with this would be for another Commissioner to hear evidence
and argument.
[10] In the result I make the following order:
(a) The arbitration award of Commissioner M Matjane
dated 24 December 1998 in CCMA case number GA 37301 is
hereby reviewed and set aside.
(b) The matter is remitted to the Commission for
Conciliation, Mediation and Arbitration for a fresh arbitration
hearing to take place before a Commissioner other than the
Second Respondent.
(c) There is no order as to costs.
PAUL KENNEDY
ACTING JUDGE OF THE
LABOUR COURT
20 AUGUST 1999