IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
Case NO: JR 2404/03
20051024
In the matter between
AFROX LIMITED Applicant
and
NATIONAL BARGAINING COUNCIL FOR THE
CHEMICAL INDUSTRY 1st Respondent
ASHMINI SINGH 2nd Respondent
PETRUS JACOBUS VILJOEN 4th Respondent
_________________________________________________________
JUDGMENT
_________________________________________________________
REVELAS, J
[1] This is an application for the review of an award by the second
respondent (Ashmini Singh NO) made in favour of the fourth
respondent (Petrus Jacobus Viljoen).
[2] The second respondent ("the arbitrator") held that the dismissal
of the fourth respondent ("Viljoen") by the applicant ("Afrox
Limited") was procedurally and substantively unfair. The
arbitration hearing was conducted under the auspices of the first
respondent ("The National Bargaining Council for the Chemical
Industry").
[3] The facts which gave rise to this matter were the following. On
13 February 2003 the fourth respondent ("Viljoen") was
involved in an altercation with two employees of Gas and Lube,
one of the applicant's larger clients. During the course of the
altercation Viljoen exposed his buttocks to two of the employees
of Gas & Lube. As a result of this escapade, disciplinary
proceedings were instituted against Viljoen and a hearing was
held on 26 February 2003.
[4] At the hearing Viljoen did not dispute that he exposed himself to
the employees from Gas and Lube and claimed that he had been
provoked to such a degree, that he did not think about what he
was doing. It was the undisputed evidence before the
chairperson of the disciplinary inquiry, that the applicant had, on
the day before, reported the two employees of Gas and Lube in
question, for breaching safety regulations. In what appeared to
have been a revenge attack, they approached Viljoen and swore
at him and an argument followed. Apparently the whole
incident, during which he subsequently dropped his trousers and
exposed his buttocks to them, was no more than five minutes in
duration. The chairperson of the hearing found Viljoen guilty of
misconduct and dismissed him.
[5] Viljoen then referred a dispute about an unfair dismissal to the
National Bargaining Council for the Chemical Industry ("the
Council") and subsequently the arbitrator arbitrated the dispute.
[6] In her award, the arbitrator found that there were several
procedural irregularities in the disciplinary hearing. She firstly
found that the inquiry was fatally flawed because, although the
chairperson commenced the inquiry in an objective and
impartial manner, he later began interrogating the applicant
about the implications of his actions. Secondly, she found that
the chairperson appeared to have arrived at a decision prior to
having heard the summation or closing arguments of the parties.
She also based the conclusion upon reading some of the
questions posed by the chairperson. (A transcript of the entire
proceedings was available to the arbitrator at the arbitration
hearing.) Thirdly, the arbitrator found that after having
delivered a guilty finding, the chairperson further failed to ask
the applicant and Viljoen as to what sanction they would
recommend. Thus, she found that Viljoen was not given the
opportunity to plead for a lesser sanction than dismissal. She
held that whilst the aforesaid might be minor infringements, the
most striking problem with the inquiry was the fact that the
applicant was not afforded the opportunity to crossexamine the
applicant’s witnesses, namely the two employees of Gas and
Lube.
[7] Although the two employees of Gas and Lube had made a
complaint against Viljoen, they nonetheless did not testify at the
hearing or at the arbitration hearing. Consequently no proper
crossexamination was conducted.
[8] The applicant argued that it would have served no purpose to
call these two witnesses and that the arbitrator's criticism in this
regard was irrational, since their testimony would only have
weakened Viljoen's case.
[9] In my view, the irrationality in this regard does not lie at the
door of the arbitrator, but rather at that of the applicant. Cross
examination is fundamental, and this argument overlooks the fact that
it was undisputed at the disciplinary hearing that Viljoen, was very
much provoked and that the two employees acted out of revenge.
Crossexamination of them could have led to establishing serious
mitigating factors, which could have prevented the dismissal. On the
other hand, it is quite probable that their evidence could have bolstered
the type of facts which would render the sanction of dismissal,
appropriate. The fact that the latter was a possibility, does not mean
crossexamination should be disallowed. Such reasoning is irrational.
[10] A further complaint levelled against the arbitrator is that in this
instance she wrongly interpreted the case of Metro Cash &
Carry Ltd v Le Roux NO & Others [1999] 4 BLLR 351 (LC). In
that matter an employee had assaulted a customer, after the
customer had accused the employee of shortages, had sworn at
him and slapped him. He was subsequently dismissed and a
CCMA commissioner stated as follows in his award:
"In considering how the employee should have reacted
to the situation, the employee's action should be
considered in a very realistic manner. Certainly the
employee was under an obligation to treat all
customers courteously, even when the behaviour of
certain customers left much to be desired.
Undoubtedly it is fair to expect of employees to
attempt to minimise conflict with customers, even if
that means having to withdraw from an argument
despite being in the right. It may also be that it was ill
advised of the employee not to withdraw from the
situation at the earliest possible opportunity.
However, that is not the primary question. How
should the employee have reacted to being slapped
through the face? It is difficult to see how anyone
would have been able to refrain from retaliating in
selfdefence. It is similarly difficult to see how the
incident could have ended there and then, given that
the parties grabbed each other and fell on the floor. It
seems excessive for the employee to have kicked Ms
Ncgobo (customer) and in doing so (only) he exceeded
the boundaries of selfdefence. On the whole,
however, I find that the actions of the employee should
be approached with due appreciation of the extreme
provocation on the side of Ms Ncgobo."
"Against the background of that evaluation of the
facts, I am of the view that the sanction of dismissal
was excessive. I hasten to point out that I am by no
means seeking to lay down the general rule in terms of
which assault on customers or fellow employees (or
anyone else for that matter) should be approached as
something other than a dismissable offence. There
would have to be very compelling circumstances to
justify departure from that approach. Such
circumstances are present in the present matter."
[11] The employee in the Metro Cash matter was reinstated, but not
with full retrospectivity, as it was held that the employee ought
to [be penalized in this manner] for his actions. The award was
then taken on review to the Labour Court where the learned
judge at page 354 held as follows:
"In view of the fact that there was provocation in the
present matter and in view of the fact that the
arbitrator had warned himself that, as a general rule,
assault will be held to be a dismissable offence, and in
view of the fact that the arbitrator also sought to
express his disdain for the actions of the employee and
held it to be a dismissable offence, and in view of the
fact that the arbitrator also sought to express his
disdain for the actions of the employee by reinstating
him from only a later date, I cannot find that the
award is not justifiable in relation to the reasons given
for it. In the event the award will stand and the
application is dismissed with costs."
[12] The arbitrator held that this matter is distinguishable from the
Metro Cash case in that the applicant did not physically assault
the customers, as the employee in that matter did. The arbitrator
was of the view that Viljoen's actions were not as harmful to the
applicant as that of the employee in the Metro Cash matter. She
also found that if the chairman of the disciplinary inquiry had
conducted the hearing in a fair manner, and had probed into the
provocation issue, he would in all probability have realised that
it was indeed a strong mitigating factor. Viljoen did during the
inquiry, and at the arbitration hearing, state that he had not been
thinking clearly as he had been consumed with anger. He
acknowledged that he was aware of the fact that his actions were
wrong and he displayed considerable remorse.
[13] The arbitrator stated that even though she was reluctant to
interfere with a sanction imposed by an employer, as she
believed businesses should run with "as little outside
interference as possible", the facts of this case called for
interference. She commented that she was well aware of the
judgments in the cases Nampak Corrugated Wadeville v Khoza
[1999] 2 BLLR 108 (LAC) and County Fair Foods (Pty) Ltd v
CCMA & Others [1999] 11 BLLR 1117 (LAC), where the
labour Appeal Court warned against such interference.
However, she believed that if the inquiry was conducted in a fair
manner, the chairperson would have arrived at a different
sanction. She did not find Viljoen's behaviour acceptable. As a
matter of fact, she also found it unacceptable behaviour. She,
however, believed that dismissal was not the appropriate
sanction.
[14] She then held that the dismissal was procedurally and
substantively unfair. She ordered the respondent to
retrospectively reinstate Viljoen only as of 1 June 2003. He is
thus penalized with a loss of wages for the months March, April
and May 2003, as a disciplinary measure against indecent
exposure. The reinstatement is to take place on or before 25
November 2003. She further ordered that Viljoen should
receive a final written warning valid for 12 months,
commencing on 25 November 2003.
[15] In the fourth paragraph of her award the arbitrator ordered the
respondent to pay Viljoen compensation equivalent to six
months' wages for the months June to November 2003 in the
amount of R27 340,00 less the relevant tax deductions.
[16] The aforesaid order contained in paragraph 4 (four) of the
award, is clearly wrong. Section 193(1) of the Labour Relations
Act 66 of 1995, as amended, provides that compensation cannot
be awarded in addition to reinstatement. Therefore that part
(paragraph 4 of the arbitrator's award) should be deleted.
[17] The award is a well reasoned award which takes due account of
all the evidence which was led before the arbitrator. The
company called only one witness and that was the applicant's
branch services manager, Mr Van der Merwe.
[18] He also testified about an incident which had taken place
between the applicant and a customer from Vaalmed at a
previous occasion which had resolved itself. That was about a
conflict with a coemployee called Quinton Colburn. Here it is
of further note that Quinton Colburn was the person who
attended to Viljoen's unsuccessful appeal in the present matter.
In my view that was a further serious irregularity which the
arbitrator was bound to take into account, and if she did not, I
most certainly do.
[19] The representatives on behalf of Viljoen and Solidarity argued
that a stricter test should be applied to this review than in other
cases and that I should be led by the test as set out in section 145
of the Labour Relations Act. At this stage I may just say that
the appropriate test in a review application of this kind, is to
establish whether the arbitrator had rationally applied her mind
to the evidence before her. She did. Whereas the conduct
complained of is most certainly serious, it is not dismissible
conduct per se, in all circumstances. The arbitrator cannot be
faulted for taking the surrounding circumstances into account,
namely the provocation and the evidence which was led
regarding the revenge motive of the two employees in question.
[20] Furthermore, one must also look at the nature of the charge
against the applicant. He had been charged in terms of the
applicant's disciplinary code, Rule 14, which reads:
"Any deliberate action which does or has potential to
disrupt industrial relations between management and
employees, individuals and groups, for example
abusive language, in this case towards a customer,
abusive language and obscene behaviour."
[21] He was found guilty of obscene behaviour only. There was no
evidence that the relationship between the applicant and its
client, Gas and Lube, was disturbed by the incident. There was
also no indication that the incident in question destroyed the
relationship of trust between the applicant and Viljoen. There is
no evidence, further, that he would not be able to perform his
duties as before.
[22] In my view the applicant has not put forward a cogent case
which could persuade me to interfere with the arbitrator's award,
in so far as the substantive and procedural fairness of the
dismissal is concerned.
[23] However, I wish to interfere with her award in one respect, and
that is to delete paragraph 4 therefrom, so that it accords with
the arbitrator’s powers as conferred upon her by the Labour
Relations Act.
[24] Consequently, I make the following order:
1. The application for review is dismissed with costs; and
2. Paragraph 4 of the arbitrator's award should be
deleted there from.
__________________
Judge Elna Revelas
Judge of the Labour Court
Date of hearing: 21 October 2005
Date of Judgment: 24 October 2005
On behalf of the applicant:
Webber Wentzel Bowens Attorneys
On behalf of the respondents:
Serfontein Viljoen & Swart Attorneys