REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO D26/2001
In the matter between:
COROBRIK (PTY) LTD
t/a BRICK AND TILE Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
S R BALTON N.O. Second Respondent
J N MKHIZE Third Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
PILLAY D, J
[1] This is a review of an award of the second respondent Commissioner in
terms of section 145(2) of the Labour Relations Act No 66 of 1995 (the
LRA). The third respondent was dismissed for refusing to carry out a
lawful and reasonable instruction of a superior. The Commissioner found
that:
the third respondent did not deny that he understood the instruction or that
it was not part of his duty;
the instruction had been given to him by his superior;
the third respondent's evidence was inconsistent, improbable and that he
was lying;
the third respondent was unable to answer straightforward questions;
the instruction was reasonable;
the instruction was repeated on three occasions in the presence of
colleagues at various times;
the third respondent was unable to advance any reason why a colleague
would testify against him;
the third respondent failed to carry out the instruction.
[2] Against these factual conclusions the Commissioner conceived her duty as
follows:
"The main issue to be dealt with therefore, is whether the sanction of
dismissal is appropriate."
She then concluded as follows:
"Having regards to all the evidence placed before me I am satisfied that
the sanction of dismissal was harsh taking into account the length of
service of the Applicant. I regard the continued employment of the
Applicant from 6 August 2000 to 31 August 2000 as being an important
factor in considering whether the employment relationship has broken
down. There was no substantial evidence before me to this effect. The
witness Pretorius tried to lead evidence that the customer who purchased
on that day and requested that his goods be offloaded did not return.
There was no substantial evidence to state that this was a regular
customer or that the Applicant's conduct had effected the business in any
way. Pretorius's evidence that the customer seemed irritated is also
unsubstantiated."
She substituted the dismissal with a final written warning for
insubordination.
[3] The Commissioner misconceived the nature of her duties in the
circumstances of this case. This is so despite her having been referred to
relevant authorities, to some of which I now refer.
[4] The Labour Appeal Court has stated the law as follows with regard to the
imposition of sanctions by a Commissioner in Toyota South Africa Motors
(Pty) Ltd v Radebe & Others [2000] 9 LAC at para.56:
"If there is a yawning chasm between the sanction which the Court would
have imposed and that which the Commissioner imposed, then it would
seem to me that a gross irregularity has been committed. The use of the
word 'gross' indicates that the irregularity has to be so egregious that the
Court can conclude that the function of assessing a fair sanction has been
misconceived."
Further:
"In criminal law Appeal Courts interfere with the sentence of a lower court
where such induces a sense of shock or there is an alarming or disturbing
disparity between the sentence imposed by the trial Court and the
sentence which the Appeal Court is minded to impose. A Commissioner
imposing a sanction in an arbitration in terms of the Act has a similar but
not identical role."
[5] In De Beers Consolidated Mines (Pty) Ltd v CCMA & Others [2000]9 BLLR
995 LAC at para.22 CONRADIE JA said as follows:
"Dismissal is not an expression of moral outrage, much less is it an act of
vengeance. It is, or should be, a sensible operational response to
mismanagement in the particular enterprise."
[6] In County Fair Foods (Pty) Ltd v CCMA & Others [1999]11 BLLR 1117 AB
LAC, the Court said:
"When it comes to determining the fairness of the sanction imposed by an
employer, it must be recognised that the law permits employers to set the
standard of conduct required of its employees and to determine the
sanction with which noncompliance is visited."
[7] In those circumstances the Commissioner acted ultra vires and exceeded
the limits of her duties imposed by the LRA. The Commissioner also failed
to apply her mind to material properly before her. While an award may not
necessarily manifest all the factors taken into account by a Commissioner,
some factors may be of such importance that a failure by a Commissioner
to take them into account may lead to a reasonable inference that they
were not considered at all. In the County Fair case at para.40 the Court
found that the Commissioner's failure to deal with aggravating features in
the conduct of the employee, justified the inference that the Commissioner
failed to apply his mind properly to the facts.
[8] In this case the Commissioner failed to take into account the applicant's
disciplinary code and procedures. Furthermore, having found that the third
respondent had been lying, she made no inference from that fact in so far
as it would impact on the trust relationship between the parties, particularly
as she granted reinstatement. She took into account long service where
the Labour Appeal Court has said that where there is a clear act of
misconduct of such a serious nature no length of service can save an
employee ( Toyota Motors case at para.16). Again at para.22 of the De
Beers Consolidated Mines case CONRADIE JA states:
"The Commissioner also misunderstood the significance of the employee's
long service. Long service is no more than material from which an
inference can be drawn regarding the employee's probable, future
reliability. Long service does not lessen the gravity of the misconduct or
serve to avoid the appropriate sanction for it. A senior employee cannot,
without fear of dismissal, steal more than a junior employee. The
standards for everyone are the same. Long service is not, as such,
mitigatory. Mitigation, as the term is understood in the criminal law, has no
place in employment law."
[9] A further irregularity which renders the award irrational and unjustifiable on
the basis of the material before her, is that the Commissioner drew a
distinction between gross insubordination and dishonesty and reasoned
that as the Toyota and De Beers cases related to dishonesty, those cases
were distinguishable from this one. She ignored the disciplinary code
which drew a distinction between the failure to follow a reasonable
instruction and the refusal to carry out a reasonable instruction. The
former offence carried a lesser penalty following a threestaged procedure
whereas the latter offence attracted summary dismissal. As a result, the
Commissioner ignored the seriousness with which the applicant viewed
the misconduct. ( Park Hyatt v CCMA and Others [1999] 8 LC at para.5)
[10] The Commissioner also misconceived the purpose of the failure to
suspend an employee pending a disciplinary inquiry. She inferred from
this that the relationship of trust had not broken down. The purpose of a
disciplinary inquiry is to test whether the employee is in fact guilty of
misconduct. It may well transpire that the employee is not guilty of
misconduct, in which case the employee will return to work. The purpose
of suspension is to safeguard the enterprise and the pending investigation.
However, suspension, as an automatic response to a misconduct could be
perceived as preempting dismissal. It does not necessarily follow that
because the employee was not suspended, therefore the relationship of
trust has not broken down.
[11] The test for review is also not only that the Commissioner should apply her
mind to the material before her but also that her decision must be rational
and justified. Carephone (Pty) Ltd v Marcus N.O. and Another 1999(3) SA
304 LAC and Shoprite Checkers (Pty) Ltd , Ramdau N.O. and Others
[2001] 10 LAC.
[12] In the circumstances the application for review is granted with costs.
PILLAY D, J
DATE OF HEARING 6 MAY 2002
DATE OF JUDGMENT 6 MAY 2002
DATE OF EDITING 31 MAY 2002
ON BEHALF OF APPLICANT MR I LAWRENCE
ON BEHALF OF THIRD RESPONDENT ADV P J BLOMKAMP