---

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

CASE NO. C174/2007

In the matter between:

RAM HAND-TO-HAND COURIERS Applicant

and

NATIONAL BARGAINING COUNCIL FOR First Respondent

THE ROAD FREIGHT INDUSTRY (“NBCRFI”)

DAVID MIAS Second Respondent

(Cited in his capacity as Arbitrator of

the National Bargaining Council for the

Road Freight Industry (“NBCRFI”)

ANTHONY PEKEUR Third Respondent

JUDGEMENT

AC BASSON, J

1. On 27 May 2009 I dismissed the application for review. Herewith brief reasons for my order. The Applicant (Ram Hand to Hand Couriers (Pty) Ltd) applied for an order reviewing and setting aside the Second Respondent’s (hereinafter referred to as “the Commissioner”) award in terms of which the Commissioner found that the Third Respondent (Mr. Pekeur - hereinafter referred as “Pekeur”) was guilty of insubordination in that he failed to carry out reasonable instructions. The Commissioner, however set aside the penalty of dismissal and substituted it with a penalty of a final written warning valid for 12 months. The reinstatement order was further limited to three months.

2. Because of the fact that the Commissioner confirmed the guilt of the Respondent and because of the fact that only the reasonableness of the penalty was in dispute in the present case, only brief reference will be made to the facts that gave rise to the guilty finding.

3. Before turning to the relevant facts, it must be pointed out that the Applicant did not file the record of the proceedings before the CCMA. In the supplementary affidavit the Applicant alleged that the Commissioner had committed misconduct, alternatively, an irregularity in not keeping the record of the arbitration proceedings. In support of this argument the Applicant relied on the decision of UEE – Dantex Explosives (Pty) Ltd v Maseko & Others [2001] 7 BLLR 842 (LC). The Applicant thus submitted that this failure in itself is sufficient to set the award aside. It is, however, clear from the aforementioned decision that the Applicant (in that matter) had attempted to reconstruct the record but was unable to do so. No such an attempt has been made in the present case. Reference should be made to the decision in SACCAWU & others v President Industrial Tribunal & Another 2001 2 ALL SA 117 (A) where the Court held that an Applicant in review proceedings who does not furnish an adequate record to the Court runs the risk of not discharging the onus that the matter is reviewable. This principle was also emphasized in JBG Trading (Pty) Ltd trading as Russells v Whitcher NO & Others (2001) 22 ILJ 648 (LAC). It should also be pointed out that even where parties have endeavoured to reconstruct the record and it is not possible, the Court will likewise not as a matter of course remit the dispute back to the CCMA. See Nathaniel v Northern Cleaners Kya Sands (Pty) Ltd & Others (2004) 25 ILJ 1286 (LC) where the Court declined to remit the matter back to the CCMA but decided to proceed to determine the case on all the available evidential material before it.¹ See also Fidelity Cash Management Services (Pty) Ltd v Muvhango NO & Others (2005) 26 ILJ 876 (LC). In the latter case the Court followed the decision in the Kya-case. In the absence of any attempts by the Applicant to reconstruct the record by, for example, obtaining the Commissioner’s hand written notes, the Applicant thus runs the risk of not being able to discharge the onus in review proceedings especially where some of the allegations upon which it relies are put in issue by the Respondent. In considering whether or not in the absence of a record, this Court should not consider remitting the dispute back to the CCMA, regard must be had to whether or not the review can proceed irrespective of the record.

4. I am of the view that the present review could proceed in the absence of the record. This is not a matter where there exists a material dispute of fact going to the very heart of the review application which could only be resolved by looking at the record of the arbitration proceedings. I am further in agreement with the Respondent’s submission that the criticism leveled against the Commissioner’s award is, in any event, not principally based on the argument that the evidence led at the Arbitration hearing is at variance with his findings. Moreover, there is also no cross-review in respect of the Commissioner’s finding that the Respondent is guilty of “insubordination” as opposed to “gross insubordination”. What appears to be the gist of the complaint in this review application is that the Commissioner had failed to consider the weight of the evidence tendered on behalf of the Applicant. There appears therefore to be no factual dispute which goes to the heart of this review application. In the circumstances this matter may be disposed of without having regard to the record of the arbitration proceedings.

Brief outline of the facts

5. The Respondent commenced employment with the Applicant in 1995 and was dismissed on the 23 May 2006 for “gross" insubordination. As already pointed out the Commissioner found the Respondent guilty of insubordination (as opposed to “gross” insubordination) in that he failed to carry out a reasonable instruction. The Applicant does not challenge this finding.

The Applicant’s case

6. The Applicant’s grounds for review is set out in the founding affidavit as follows:

“9.1 That the Second Respondent committed misconduct in relation to the duties of the Commissioner as an arbitrator in that he did not take into consideration the weight of evidence submitted in favour of the Applicant.

9.2 The Second Respondent failed alternatively and neglected to exercise the necessary caution in his determination whether the workplace sanction imposed by the Applicant was fair.

9.3 The Second Respondent exceeded his powers in that he substituted the Applicant’s sanction with a lesser sanction notwithstanding his finding that the Third Respondent was guilty of insubordination.”

7. I am in agreement with the submission on behalf of the Respondent that it appears that the crux of the Applicant’s argument in support of its application to review is the notion that the Commissioner exceeded his powers, alternatively committed a gross irregularity when, notwithstanding finding Pekeur guilty of insubordination, proceeded to substitute the sanction of dismissal with a sanction of a final written warning valid for 12 months and reinstatement with limited “back pay”.

Review test

8. The review test of reasonableness is now firmly established in our law. See in this regard: Sidumo & Others v Rustenburg Platinum Mines Ltd & Others (2007) 2405 (CC). In the majority judgment delivered by Navsa AJ, the following principles were, inter alia, highlighted: Firstly, in arriving at a decision as to the fairness of the dismissal, a Commissioner is not obliged to defer to the decision of the employer. Secondly, in determining the fairness or otherwise of a dismissal, the Commissioner will take into account the totality of the circumstances. Thirdly, the review test is namely whether the decision reached by the Commissioner is one that a reasonable decision maker could not reach. See also Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC). The facts pertaining to the Sidumo case is to some extent similar to the present. In the Sidumo-matter the Applicant, a security guard, was dismissed after 15 years service with the employer. He was responsible for monitoring access to and exit from a high security facility where high graded precious metals are separated from lower grade concentrate. He was dismissed for failure to follow prescribed search procedures. Detailed search procedures at the guard’s new post were part of the employer’s efforts to reduce losses due, amongst other causes, to theft. The Commissioner found that although he was guilty of misconduct that the dismissal was not the appropriate sanction in the circumstances. The Commissioner reinstated the guard subject to a final written warning valid for 3 months and award him compensation equivalent to 3 months wages. In the present matter, the Commissioner, similar to the Sidumo- matter also found the Respondent guilty of misconduct (insubordination). Furthermore, similar to the Sidumo- matter, the Commissioner also found that notwithstanding the guilty finding that the penalty of dismissal was too severe. The Commissioner came to that conclusion after taking into account various factors and circumstances. The penalty of dismissal was substituted by one of a final written warning and reinstatement with limited back pay.

9. Did the Commissioner exceed his powers in that he substituted the Applicant’s sanction with a lesser sanction notwithstanding his finding that the Respondent was guilty of insubordination? The mere fact that the Commissioner overturned the decision to dismiss after having found the Respondent guilty of insubordination is not per se irregular and therefore reviewable. There is also nothing before this Court to suggest that the Commissioner committed some irregularity in terms of the factors taken into account in coming to the conclusion that dismissal was not an appropriate sanction. It is clear from the Sidumo- decision that a Commissioner is entitled, despite a finding of guilt to determine whether or not dismissal was an appropriate sanction in the circumstances. I cannot therefore find that the Commissioner committed a reviewable irregularity in substituting the sanction.

10. I have pointed out that, although the Applicant does not take issue with the Commissioner in respect of the factors it took into account in deciding that dismissal was not an appropriate sanction, it is, in any event, submitted on behalf of the Applicant that the factors which the Second Respondent took into account, is reasonable. In essence it was the finding of the Commissioner that Pekeur and Niemandt were two assertive personalities and that they had rubbed each other up the wrong way on the date of the incident. The Commissioner found that this was clearly a case of “a serious personality clash” on the day of the incident. The manager Niemandt wanted to assert her authority where another approach might have been more appropriate. The Commissioner accepted that Pekeur had offered an unconvincing excuse for not reporting for duty. However, in light of his length of service and the fact that for more than a year Pekeur and Niemandt had been able to work together, the Commissioner came to the conclusion that dismissal (which is the ultimate penalty) was not the appropriate sanction. It further appears from the award that the Commissioner was of the view that the dispute has been blown out of all reasonable proportion by the manager and that the dispute was a storm in “a teacup” that “was blown into a full-scale war situation”. The fact that Pekeur was found guilty of “insubordination” as opposed to “gross insubordination” in the circumstances also appears to have played a roll in the mind of the Commissioner in coming to a conclusion that dismissal was a too severe sanction. The Commissioner in coming to a conclusion to substitute the dismissal sanction also took note of the principles laid down in terms of Schedule 8 3.(4) of the Code of Good Practice of the Labour Relations Act, Act 66 of 1995 which requires that it is not appropriate to dismiss an employee for a first offence. In the present matter it appears that it was common cause that the Respondent had a clean record. I am in agreement with the submission on behalf of the Respondent that, having found that Pekeur was guilty of insubordination as opposed to gross insubordination, it was reasonable (in light of the principles set down in schedule 8 of the Code of Good Practice) to find that dismissal was not the appropriate sanction and to substitute the sanction.

11. It was further argued on behalf of the Applicant that the Commissioner failed, or alternatively neglected to exercise the necessary caution in his determination whether the workplace sanction imposed by the Applicant was fair. This notion that the employer’s sanction should be approached with caution by Commissioners was a finding of the Supreme Court of Appeal in the Sidumo-matter which was overturned by the Constitutional Court:

“[75] It is a practical reality that in the first place it is the employer who hires and fires. The act of dismissal forms the jurisdictional basis for a commissioner, in the event of an unresolved dismissal dispute, to conduct an arbitration in terms of the LRA. The commissioner determines whether the dismissal is fair. There are therefore no competing ‘discretions’. Employer and commissioner each play a different part. The CCMA correctly submitted that the decision to dismiss belongs to the employer but the determination of its fairness does not. Ultimately, the commissioner's sense of fairness is what must prevail and not the employer's view. An impartial third party determination on whether or not a dismissal was fair is likely to promote labour peace.

[76] The view that if there was no deference afforded to the employer's sanction there would be a flood of cases to the CCMA is no more than supposition. As the Labour Appeal Court correctly stated in Engen Petroleum :

'[It] reveals a failure to appreciate the full rationale behind the creation of the CCMA. It is right and proper that as many disputes as possible that are not resolved amicably in the workplace, should be referred to the CCMA or bargaining councils and other mutually agreed fora for conciliation and, later, arbitration, irrespective of what any one may think of the merits or demerits of such disputes. The existence of the CCMA ... helps to channel, among others, workers' grievances to where they can be ventilated without any interruption and disruption of production - at least up to a point. It is also right and proper that unions should be encouraged and not discouraged to refer dismissal disputes with employers to the CCMA for arbitration if they feel aggrieved by such dismissals. In that way, they can ventilate all issues about their grievances in regard to such dismissals in that forum before a third party, who can listen to all sides of the dispute and, using his own sense of what is fair or unfair, decide whether the dismissal is fair or unfair. In that way, the workers would have less urge to resort to industrial action over dismissal disputes.’”

12. There is therefore no merit in the argument that the Commissioner was obliged to exercise any caution and/or deference in determining whether the workplace sanction imposed by the Applicant was fair or not.

13. It was further submitted that the Commissioner committed misconduct in relation to the duties of a commissioner in that he did not take into consideration the weight of evidence submitted in favour of the Applicant. There is no indication that the Commissioner did not consider the evidence. I should also point out that the Applicant decided to approach this Court without any attempts at reconstructing the record. The Applicant must therefore stand and fall by its decision. Notwithstanding this failure, it appears that nothing much turns on this as the matter can be decided with reference to the papers before this Court (excluding the record). The Commissioner clearly found in favour of the Applicant that Pekeur was guilty of insubordination. In coming to this decision the Commissioner took into account that there was an altercation but came to the conclusion that it was blown out of proportion by the manager (Niemandt). The Commissioner also took into consideration the Applicants averment that there was a total break down of the trust relationship. It was, however the finding of the Commissioner that the relationship of trust had not broken down to such an extent that with the necessary corrective measures put in place that Pekeur’s attitude and conduct could not be changed in the circumstances. In this regard reference should also be made to the decision in Sidumo where the Constitutional Court held that the mere fact that there was a breach of the trust relationship does not end the enquiry into the fairness of a dismissal. There are also other factors that have to be weighed up in addition to the circumstances of this misconduct. Among these factors is the length of the employee’s service:

“[116] In respect of the absence of dishonesty, the Labour Appeal Court found the commissioner's statement in this regard 'baffling'. In my view, the commissioner cannot be faulted for considering the absence of dishonesty a relevant factor in relation to the misconduct. However, the commissioner was wrong to conclude that the relationship of trust may have not been breached. Mr Sidumo was employed to protect the mine's valuable property which he did not do. However, this is not the end of the enquiry. It is still necessary to weigh all the relevant factors together in the light of the seriousness of the breach.”

14. In the present matter there is also no evidence before this Court to show that progressive discipline would not change his attitude and efficiency. See also in this regard Sidumo where the Court also took into account that there was no indication that progressive discipline would not assist Sidumo in changing his attitude and efficiency:

“[117] The absence of dishonesty is a significant factor in favour of the application of progressive discipline rather than dismissal. So too, is the fact that no losses were suffered. That Mr Sidumo did not own up to his misconduct and his denial that he received training are factors that count against him. His years of clean and lengthy service were certainly a significant factor. There is no indication that the principle of progressive discipline will not assist to adjust Mr Sidumo's attitude and efficiency. In my view, the commissioner carefully and thoroughly considered the different elements of the code and properly applied his mind to the question of the appropriateness of the sanction.”

15. I am satisfied that the Commissioner took into account the totality of the circumstances and that the conclusion reached was not one that a reasonable decision maker could not reach in the circumstances.

16. In the event the review application is dismissed with costs.

………………………………………….

AC BASSON, J

DATE OF WRITTEN REASONS: 21 July 2009

For the Applicants:

Adv Aggenbach instructed by Werksmans.

For the Respondent:

Mr Bell of C & A Friedlander Inc.

---