IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN 	

CASE NO:  JR938/2005
2007-08-16

 NOT REPORTABLE

In the matter between:

MORULA HOTEL & CASINO 	Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION	First Respondent

SILAS MOLEBALOA N.O.	Second Respondent

SACCAWU obo MOCHADIBANE	Third Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
CELE, AJ:

This is an application in terms of Section 145 of the Labour Relations Act 66, 1995 to the view and set aside an arbitration award dated 18 April 2005 issued by the second respondent as the Commissioner of the first respondent.

The third respondent in whose favour the award was issued, not only opposed the application but also applied to make the said award an order of this court in terms of Section 158(1)(c) of the Act.  The third respondent who has been represented by SACCAWU, South African Commercial Catering and Allied Workers Union commenced employment with the applicant in these proceeding on 4 May 1987. In 2004; I think this was September/October, he held the position of an Assistant Casino Controller.  The applicant operated an hotel in the casino in its operations held at Morula Hotel & Casino.

On 18 September 2004, the third respondent was on duty, he knocked off at about 12:00.  A customer who was well known to the applicant staff arrived at the business premises of the applicant, in other words at the Casino driving a motor vehicle.  He was a Mr Christodoulou. In the proceedings he is often been referred to as Chris to shorten the name.

Mr Christodoulou met with the third respondent; they appeared to have met at the car park of the Casino.  The two were already friends by then.  They had a discussion at the end of which Mr Christodoulou handed his car keys to the third respondent. The discussion appeared to have taken place at the time when the third respondent was already off duty.

In the evening of that day, the news of the third respondent having taken car keys of Mr Christodoulou came to the attention of Mr Marius de Villiers, applicant’s duty manager.  Mr de Villiers telephoned the third respondent, on his cellular telephone and directed him to return the car keys of the customer.  The third respondent said that he was already on his way somewhere and would only return the keys on the next day.  A further attempt to telephone the third respondent on that evening was however unsuccessful.  Mr de Villiers then gave Mr Christodoulou accommodation and dinner for the night.  On the following day he provided breakfast to the customer, all of this at the applicant’s expenses.  

On that following day the third respondent came to work and met Mr de Villiers who asked for the return of the car keys to the customer. The third respondent refused to part with the car keys.  Mr de Villiers was at the time with Mr Paul Hudson.  Mr de Villiers later arranged for a meeting between the third respondent and Mr Christodoulou to sort out the car key problem.  And he left the two together; later still he learned that the problem had been resolved between the two.  Mr Christodoulou had then surrendered his wristwatch to the third respondent for being indebted to him, as security.

On 20 February 2004, the Casino Controller, a Miss Helen Uys, held a meeting with the third respondent pertaining to the events of 18 and 19 September 2004.  The third respondent refused to sit for the meeting.

1)  The applicant subsequently charged the third respondent with acts of misconduct described as (1) gross insubordination:
a)	Deliberately refusing to carry out reasonable and lawful instruction from executive manager, Mr de Villiers on 18 and 19 September 2004;
Deliberately refusing to carry out a reasonable and lawful instruction from H Uys to attend and participate in meetings at 13h30 and 14h00 on 28 September 2004.
(2)   Behaviour which brings the company’s name into disrepute
resulting in the company accommodating the guest at its expenses on 18 and 19 September 2004. 

The third respondent was found to have committed both acts of misconduct with which he had been charged.  He was dismissed for the first infraction and was given a written warning for the second.  

He then referred a dismissal dispute which had then arisen between him and the applicant to the first respondent but conciliation failed to resolve it and he then referred it further to arbitration.

The second respondent found that the dismissal was substantively unfair and ordered the applicant to reinstate him retrospectively and to grant a compensatory order.  The procedural fairness has not been challenged.

The applicant has brought the present application because of being dissatisfied with the award issued by the second respondent.

The founding affidavit supporting the application was drafted in a very poor manner it did not really canvass any review grounds.

The applicant was salvaged obviously by rule 7A8 which allows the applicant to bring in a supplement affidavit once the record had been filed and they did just that.  Even there unfortunately Section 145 was not really utilised.  This is clear when one looks at the supplementary affidavit and compares it with the heads of argument.  These heads have about nine grounds of review, well articulated, but the same is not found in the supplement affidavit. What however stands out is that there are grounds of review that are laid down there in the supplementary affidavit.  I was able to find this, I began to find this on page 58 and onwards.  Paragraph 7.9 of the affidavit reads:

“At this point Second Respondent commits a gross irregularity, such
 as to deny Applicant a fair trial, by misconstruing the relevant enquiry -which was at all times whether Third Respondent was grossly insubordinate- and instead recasting the relevant question for consideration as being the following.”

And then there is a quotation of the portion of the award in that respect.
  
I want to leave it to that ground and that ground only.

The question before me is whether or not the Commissioner committed a defect and missed out in diagnosing the issue before him.  

Was there a reasonable and lawful instruction that was issued? If so was there compliance there of.  On the facts that are before me which are common cause between the parties, it is clear that the third respondent did not accede to the instruction given to him by Mr de Villiers on 18 September 2004.  He indicated that he was far away, he was not going to come back with the car keys. He did not bring them on 18 September 2004.  It is clear that he brought them back on 19 September 2004. But also on 19 September 2004 he did not surrender those keys as and when they were asked for by Mr de Villiers in the morning.  That is common cause between the parties.

But what pertains me, what I have to look at carefully here is whether or not this was a lawful instruction to begin with.  Why I embark on this exercise is because the third respondent was off duty at the time he took the car keys, and at the time he was called upon by Mr de Villiers to surrender them back.

I remind myself that as I step into this enquiry, I do so only to determine whether or not the Commissioner correctly applied his mind into the facts that were before him, whether or not he issued an award which is justifiable.

I am aware of the limits that I have because I am dealing only with the review and not an appeal.  I have been referred by Adv P Buirski for the applicant to a number of decisions. But the most important for my purposes I want to refer to is; Jeffries v President Steyn Mine (1994) 15 ILJ 1425 (IC). It is a judgment by Commissioner Ferwayne and secondly; the judgment Malan v Bulbring NO & Others (2004) 25 ILJ 1737(LC). 

 In the two decisions it is clear or the law is properly stated that an employer may give instructions to an employee in circumstances that are not really work related. When doing so this may indeed turn out to be lawful.  I quote a decision in the Malan decision.  I am looking here at page 1746, somewhere in paragraph A going down toward B and C; quote:
“The question is whether the dismissal is based on a fair reason that is related to the employee’s conduct.  This is more extensive than a narrow analysis of the terms of an employment contract. An employer may discipline an employee not only for conduct which occurs in the direct context of the workplace, but only for conduct occurring outside the workplace but which has a sufficient impact upon the employment relationship.”
 
A paragraph 25 it goes on to say the following:
“An arbitrator in a conduct related dispute is thus called upon to analyse the conduct complained of, with a view to assessing not whether it narrowly constitutes the breach of term of the employment contract, but whether it amounts to conduct in contravention of a rule or standard regulating conduct of relevance to the workplace. Attention must be paid to the employer’s interest in that conduct, wherever and whenever it occurs. If an arbitrator fails to perform such an analysis, he or she does not apply the relevant legal principals, and so commits a fundamental error of law, which would typically deprive the employer party of a fair hearing.”

From this very quotation it is clear that conduct of an employee which is not necessarily work related may have an impact on the employer, employee relationship.

In the present case the third respondent had taken the keys of Mr Christodoulou in a private arrangement.  Obviously he would have known that if Mr Christodoulou wanted to go home, somewhere in the middle of the night and that this would have been impossible for Mr Christodoulou to do.

It is not clear what the third respondent thought would have been the solution.  When Mr de Villiers phoned the third respondent and said, the keys had to be surrendered, it should have dawn in the mind of the third respondent that there was serious problem at the time.  He should not have just limited himself to the fact that this was a private arrangement. He should have realised that a private arrangement between him and Mr Christodoulou had an impact on the relationship between Mr Christodoulou and the employer.  He should have realised that the private arrangement had then come to the knowledge of his own employer, and at least he should have even enquired further as to why this matter had come up.  Had he done so, clearly he would have found out that possibly Mr Christodoulou would have wanted to leave and then would have properly applied his mind toward what he ought to have done.  He should not have been as quickly dismissive as he did on the suggestion given.

I need not even go further and speculate on why the second telephone message could not go through, why Mr de Villiers and the third respondent could not communicate.  I do have much material to fall back on.

In my view the refusal of the third respondent to bring the keys on 18 September 2004, indeed did impact on the employer/employee relationship.

This is because the third respondent arranged his private lifestyle such that it did have such an impact on his employer.  The employer was sitting with a customer now who had to be taken care of because this customer could not drive away.

I remind myself that this incident had happened before and from the facts that are before me, the third respondent knew about it.  The third respondent should have realised that Mr Christodoulou was becoming a problem and that that could have caused the employer again to accommodate Mr Christodoulou.

In my view therefore, the instruction was a lawful one. In my view the instruction was reasonable.  In my view the instruction called for a response from the third respondent.

In my view therefore, the Commissioner has misdirected his mind or himself in not approaching this matter as I have just done. By treating the agreement between Mr Christodoulou and the third respondent only as a private arrangement and leave it like that, he failed to apply his mind into the issues that served before him.

Secondly, it creates an impression that driving back from Mamelodi or perhaps coming back from Mamelodi and back to Morula Casino to bring the keys was impossible, but there is no basis laid for this.  There are no facts that have been presented before him on which he could sensibly say that or reasonably say that it was impossible for the third respondent to return the keys.  There were no such facts, at least if there were facts given to him, one would then go into the facts and examine whether they made any sense.

Accordingly having come to this decision, I find that the Commissioner committed a gross irregularity in the performance of his duties.  He should have found that the instruction given was lawful and reasonable and it called for a response. I am talking here about the instruction on 18 September 2004, and in the main, I will limit this enquiry to that instruction. I may not even go further and look at the instruction on the following day because there are progressions that took place here.  The very critical instruction is the one that was given on 18 September 2004.

Clearly, there is a gross insubordination on the part of the third respondent.  In that enquiry that I have to look into is the question whether or not this was a case that called for a dismissal in the present case.  Indeed, this being a gross insubordination where an employee even goes so far as making unpalatable utterances in the presence of his own boss towards a customer, on the following day, such as to show that the third respondent was not very respectful as one would expect him to be.  He took a position, which makes one wonder why he was so emotionally moved when Mr de Villiers was trying to find peace in the situation.

I know that the unpalatable utterances were directed at the customer and not at Mr de Villiers, but one would have expected that in the presence of his boss he would have polished his language.

The insubordination as I have said was of a serious nature and indeed the employer justifiably decided to dismiss the third respondent, I find that the Commissioner would have been bound by law to defer to that decision and here I only have to refer to a number of decisions that I have used today but one of those is the Engen Petroleum Limited Decision v the CCMA still unreported 8/8/05 delivered by the LAC on 4 May 2007. 

Accordingly I will issue the following order:

1)	The arbitration award dated 18 April 2005, under case NW7051/04 is reviewed and set aside;
2)	The dismissal of the third respondent by the applicant stands as it was substantively fair.

I come finally to the cost order, in my view I then really believe that the third respondent was not vexatious in defending this matter, they had an interest. The Commissioner had probably created some hope that a Judge might agree with them.  I do not think it would be fair to grant a costs order therefore, the application succeeds but not with the costs order.

__________
CELE, AJ
Acting Judge of the Labour Court

Date of hearing: 16 August 2007
Date of judgment: 16 August 2007
Date of Editing: 12 January 2009

APPEARANCES
For the Applicant      :   Adv P Buirski
Instructed by	                Salijee du Plessis Van der Merwe

For the Respondent :   Ms P Radali from SACCAWU