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 
MASERUMULE AJ                                                                    JUDGEMENT

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