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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT PORT ELIZABETH

CASE NO. P47/98

In the matter between :

FEDERATED TIMBERS (PTY) LTD

and

MS M Z N LALLIE N O FIRST RESPONDENT

PAPER PRINTING WOOD AND ALLIED

WORKERS UNION (PPWAWU) SECOND RESPONDENT

MR MNYAMEZELI GOGWANA THIRD RESPONDENT

MR ANTHONY MNGQIBISA FOURTH RESPONDENT

MR NEVILLE HENDRICKS FIFTH RESPONDENT

_______________________________________________________________

JUDGEMENT

_______________________________________________________________

MASERUMULE AJ

INTRODUCTION

(1) The applicant seeks an order reviewing and setting aside an arbitration award handed down by the first respondent (“the Commissioner”) on 6

January 1998.MASERUMULE AJ JUDGEMENTThe application is opposed by the second to fifth respondents.

(2) The Labour Appeal Court has decided that arbitration awards such as the one handed down by the Commissioner are reviewable only in terms of Section 145 of the Labour Relations Act No. 66 of 1995 (“the Act”), see CAREPHONE (PTY) LTD v MARCUS N O AND OTHERS JA 52/98, unreported. In terms of section 182 of the Labour Relations Act, 66 of 1995 (“the Act”) , the Labour Court is bound by decisions of the Labour Appeal Court. I am accordingly bound to apply the test set out in

CAREPHONE, supra.THE AWARD

(3) The Commissioner arbitrated a dispute arising out of the dismissal of the third to fifth respondents by the applicant. She found that the dismissal of the third and fourth respondents was unfair because the applicant did not apply discipline consistently. Both were reinstated, without any compensation or retrospectivity. The Commissioner also found the dismissal of the fifth respondent to be unfair because his use of abuse language towards two of the applicant’s managers did not render the MASERUMULE AJ JUDGEMENT

continuance of the employer-employee relationship intolerable. In her

view, the sanction was too harsh and he was reinstated, without

compensation or retrospectivity.

(4) The essence of the applicant’s attack on the Commissioner’s award is

that there is no reasonable connection between the evidentiary material

placed before the first respondent, reasonably assessed, and the relevant

legal principles, reasonably applied, all on the one hand, and the terms

of the arbitration award on the other.

5. In assessing whether or not the applicant’s contentions must be upheld, this court is obliged, in my view, to have regard to the admonition of the Labour Appeal Court in CAREPHONE, supra, to the following effect:

6. “ 36. In determining whether administrative action is justifiable

in terms of the reasons given for it, value judgments will have to

be made which will, almost inevitably, involve the consideration of

the ‘merits’ of the matter in some way or another. As long as the judge determining this issue is aware that he or she enters the

merits not in order to substitute his or her own opinion on the

correctness thereof, but to determine whether the outcome is

MASERUMULE AJ JUDGEMENT rationally justiable, the process will be in order.” (Own

underlining).

(6) The above extract must also be understood in the context of the Labour Appeal Court’s view that the word ‘justifiable’ as used in its judgement is not to be equated with ‘justified’ or ‘correct’.

(7) It remains now to assess applicant’s contentions in the light of the factual findings made by the Commissioner and the conclusions she arrived at, having regard to the evidentiary material placed before her.

THE FACTS

(8) The third to fifth respondents were dismissed following charges of misconduct against them allegedly committed during a strike by applicant’s employees on 27 May 1997. Although there is reference in

applicant’s papers that the strike in which its employees were engaged

was unprotected, the applicant, in its heads of argument and submissions made during the hearing, has specifically abandoned reliance on the status of the strike in assessing the third to fifth respondents misconduct.

MASERUMULE AJ JUDGEMENT

(9) The third and fourth respondents were charged with having manhandled casual employees whilst these casual employees were being forcibly removed from the applicant’s premises during the aforesaid strike. These two employees were dismissed because, according to the applicant, their misconduct in physically handling the casual employees is more serious than that of other employees who participated in removing the casual employees from the applicant’s premises but who did not physically mishandle them.

(10) The fifth respondent was dismissed because it is alleged that he used foul and abusive language against two of the applicant’s managers.

(11) The incident involving the third and fourth respondents occurred on a separate occasion from that involving the fifth respondent. Separate

submissions were made in respect of these respondents and I accordingly

deal with them separately from the fifth respondent.

(12) The second respondent (“the union”) referred the dispute arising out of the dismissal of the third to fifth respondents to arbitration. The

Commissioner found the dismissal of these respondents to have

MASERUMULE AJ JUDGEMENT

been unfair and awarded them relief as set out above.

(13) In her award, the Commissioner found that the third and fourth

respondents, together with some other 50 to 60 employees, marched

casual employees out of the applicant’s premises. She also found that the

employees so involved in marching out casual employees out of the

applicant premises were disciplined, but not dismissed and that one of

the employees so identified, and who had told a casual employee to leave the applicant's premises, was suspended for 15 days as punishment for

his part in the incident. She also found that there was another employee

who had also physically mishandled a casual employee, but who could

not be identified either by reference to a video film of the events which

she viewed nor by one of the applicant's managers who witnessed the

incident.

(14) The Commissioner rejected the applicant's explanation for its inability to identify the third employee who manhandled the casual employee on two basis. Firstly, that since a video camera was used for the purpose of being able to identify employees engaged in acts of misconduct, the user ought to have captured the face of the third employee and

MASERUMULE AJ JUDGEMENT failure to do so cannot be excused. Secondly, that the failure by one of the applicant's managers to identify the third employee cannot be excused. The Commissioner then concluded that the applicant's

"failure to observe the events of that day properly” could not be relied

upon to justify the dismissal of the two identified employees and the

consequent non-discipline of the third unidentified employee. In her

view, the above factual synopsis meant that the third and fourth

respondents were unfairly singled out for manhandling and forcibly

removing casual employees when another employee who had

committed the same offence was not disciplined. For this reason, she

concluded that their dismissal was unfair.

(15) The question is therefore, whether in the light of the above findings, it can be said that the Commissioner’s conclusion concerning the fairness

of the dismissals stands to be vitiated on the basis that it is not

justifiable in the light of the evidentiary material available to her.

(16) In answering the above question, it is important to refer back to the Labour Appeal Court admonition that the Labour Court must be careful

not to substitute it’s own opinion on the correctness of a Commissioner’s MASERUMULE AJ JUDGEMENT

decision for it’s own, “but to determine whether the outcome is rationally

justifiable”.

(17) At this juncture, it is necessary to once again refer to the applicant’s basis for attacking the Commissioner’s findings and conclusions. The

applicant’s submission is that the Commissioner misapplied the legal

principles relating to inconsistency in the application of discipline. Its

contentions are that while it is true that other employees participated in

forcibly removing the casual employees from its premises, the third and

fourth respondents’ participation therein is more serious because they

physically pushed or pulled the casual employees, and such conduct

justifies the more drastic penalty against them.

(18) Properly assessed, the Commissioner's conclusion is twofold. The one is that it is unfair to dismiss the third and fourth respondents because other employees participated in the removal of casual employees and were not dismissed. Secondly, a third employee who also mishandled the casual

employee was not dismissed because due to its own fault, the applicant was unable to identify this employee.

MASERUMULE AJ JUDGEMENT

(19) The evidentiary matter placed before her in summary is the following :

19.1 Approximately 50 - 60 striking employees marched casual employees out of the applicant's premises;

19.2 The third and fourth respondents manhandled the casual

employees. A third unidentified employee also manhandled a casual employee;

19.3 All the 50 - 60 employees associated themselves with the third and fourth respondents by marching the casual employees to the gate after being manhandled by the third and fourth respondents;

19.4 The applicant was unable to identify the third employee who

manhandled a casual employee and;

19.5 Other employees involved in marching casuals off the

premises were disciplined but not dismissed.

(20) It is worth noting that in CAREPHONE, supra, the Labour Appeal Court formulated the applicable text by reference to "material properly

available" to the decision maker in assessing whether the conclusion

arrived at has a rational objective basis. What is "material properly

available" to a decision maker in the Commissioner's position? It must,

MASERUMULE AJ JUDGEMENT in my opinion, refer to all evidence properly placed before the Commissioner by way of documents, visual and audio recordings, viva voce evidence given by properly sworn-in witnesses and admissions made by the parties, and such other evidence as may have been properly tendered and properly received.

(21) In my view, the Commissioner’s reasoning in this matter is flawed in two respects. The applicant singled out the third and fourth respondents for more severe punishment because in its opinion, their conduct went one step further than that of other employees. It is because they made physical contact with the casual employees that they were more harshly treated.

(22) I also believe that the reasons given by the Commissioner fore rejecting the applicant’s explanation for not disciplining and dismissing the third employee who pushed one of the casual employees are misdirected. The applicant did what it could to be able to identify perpetrators of acts of misconduct and its inability to identify the third employee was beyond its control. I had the opportunity to view the video recording of the events and it is simply impossible to identify the third perpetrator.MASERUMULE AJ JUDGEMENT

(23) The above criticism of the Commissioner’s reasoning, notwithstanding , I am satisfied that an interference with her award is warranted.

(24) The misapplication of the relevant legal principles is not in itself

sufficient to justify an interference with an arbitration award. In this

regard, the remarks of Tip AJ in STANDARD BANK OF SOUTH

AFRICA LTD V CCA AND OTHERS [1998] 6 BLLR 622 (LC) at

627J-628B are apposite :

“ [24] Where a Commissioner sitting as arbitrator has

misconstrued oral or documentary evidence, or has ignored or

misapplied relevant legal principles, to an extent that is

inappropriate or unreasonable, then such Commissioner has

failed in the task assigned under the Act”. (own underlining)

(25) The applicability of the above quoted passage arises from the fact that the relevant process here is review and not appeal. The justness or

correctness of an award is not the subject matter of the investigation by

the Labour Court. For this reason, where a Commissioner has misapplied

legal principles as is the case here , interference is only warranted if the

misapplication is to an extent that is inappropriate or unreasonable.

MASERUMULE AJ JUDGEMENT

(26) The evidence available to the Commissioner in this matter is such that had she correctly applied the relevant legal principles, the result would have been the same. To put it differently, the extent to which she has misapplied legal principles is neither unreasonable nor inappropriate as a proper assessment of the evidentiary material and the correct application of the relevant legal principle would lead to the same conclusion to which she came, namely, that the dismissal of the third and fourth respondents was unfair.

(27) It follows that although the Commissioner misapplied legal principles relating to inconsistency, it was not to an extent that is inappropriate or unreasonable nor did it result in an unjustifiable award.

(28) The applicant’s contentions to the contrary are in my view, misconceived. It is one thing to treat pronounced misconduct more harshly, but quite another to say that where other identifiable employees associated themselves with and made common cause with others in unlawful conduct aimed at obtaining the same objective , their conduct is less reprehensible because they did not commit exactly the same acts of

misconduct as the identifiable ones. The intention of all the 50 -60

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employees involved as appears from the video cassette, was to remove

the casual employees from the applicant’s premises. That the applicant

also understood it in the same was is borne out by allegations it made in

an urgent application for an interdict during the course of the above events.

(29) In its founding affidavit in the urgent application, the applicant alleged that the 50 - 60 employees referred to herein “en masse drove the casual employees” out of the applicant’s premises and that this was done by “either physically frog-marching them off the premises and by threatening them with violence or physically chasing them from the premises while brandishing sticks”.

(30) The material placed before the Commissioner, establishes that the other 50 to 60 identifiable employees associated themselves with and in fact facilitated the conduct of the third and fourth respondents in removing the casual employees from the applicant’s premises. The applicant would have been within its rights to dismiss all the employees who made common cause with the third and fourth respondents in removing casual employees from the applicant’s premises and should in fact have done MASERUMULE AJ JUDGEMENTso. It chose not to but dismissed the two employees only. Its conduct resulted in inconsistency as the rest of the employees, who were no less guilty, received a reprieve.

(31) I accordingly find that in relation to the Commissioner’s award about the unfairness of the third and fourth respondents’ dismissal, no case has been made to justify this court’s interference with her award. The application to review and set aside her award in this respect is hereby

dismissed.

The fifth respondent was dismissed for using foul and abusive language towards managers. The Commissioner found that the fifth respondent was guilty of this charge. She concluded that the employer had not led evidence to satisfy her that the misconduct was of such a nature that it rendered a continued employment relationship intolerable. She also referred to the fact that she had taken into account items 3, 4 and 5 of Schedule 8 of the Act. She accordingly found that the sanction was too harsh and reinstated the employee without compensation or retrospectivity.MASERUMULE AJ JUDGEMENT

(33) I can see no basis for interfering with the Commissioner’s award in respect of the fifth respondent. She has exercised a value judgement on the fifth respondent’s conduct. She found it to have been such that serious as it was, it did not call for the ultimate sanction of dismissal. I do not believe that she exceeded her powers in concluding that dismissal was too harsh. In the result, the applicant has failed to show that her award is not justifiable in the light of the reasons she gives for it. The application to review and set aside the first respondent’s award in so far as it relates to the fifth respondent must accordingly fail.

(34) Mr D.O. Pretorious, who appeared on behalf of the applicant, did not press for costs, irrespective of the outcome of the application. Mr Van

Voore, who appeared for second to fifth respondents, asked for costs if

he won and for no costs if he lost. This submission is, to say the least, an

untenable one.

(35) The parties have an ongoing relationship. The application was not frivolous. In the circumstances, I do not believe that costs should follow

the result.

(36) The order I make is as follows :MASERUMULE AJ JUDGEMENT

(a) The application is dismissed;

(b) There is no order as to costs.

For the applicant : Attorney D. O. Pretorious of Fluxman Rabinowitz Raphaely Weiner

For the second to fifth respondents : Attorney R. Van Voore of Cheadle Thompson and Haysom

Date of hearing : 10 September 1998

Date of judgement : 30 September 1998

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MASERUMULE AJ

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