Not Reportable
REPUBLIC OF SOUTH AFRICA
the labour court of South Africa, durban
judgment
case no: D783/2012
In the matter between:
illovu sugar limited (sezela)					Applicant
and
COMMISSION FOR CONCILIATION 
MEDIATION AND ARBITRATION					First Respondent
commissioner b pillemer n o					Second Respondent
STUART GILBERT WILLIAMSON			           	Third Respondent
Heard:	26 November 2013	
Delivered:	29 April 2014
Summary:	Review 
judgment
GUSH J
[1]	The applicant in this matter is a company conducting business as a manufacturer of sugar and sugar cane by-products at its sugar mill at Sezela KwaZulu-Natal and the erstwhile employer of the third respondent.
[2]	Following the applicant’s dismissal of the third respondent on 11 January 2012 for misconduct, the third respondent referred a dispute regarding his dismissal to the first respondent that in turn appointed the second respondent to arbitrate the dispute.
[3]	At the conclusion of the arbitration, the second respondent concluded that the applicant’s dismissal of the third respondent was substantively unfair and ordered the applicant to reinstate the third respondent and pay him arrear salary in the amount of R250,156.68.
[4]	It is this award that the applicant seeks to review and have it set aside and for the dismissal of the third respondent to be declared both procedurally and substantively fair. The application is opposed by the third respondent.
[5]	At the commencement of the award, the second respondent records, under the heading "background to the issues", those "relevant facts” that were “agreed or not disputed” by the parties. Neither the applicant nor the third respondent takes issue with this recordal. 
[6]	In summary, the background to the issue is the following:
a.	The third respondent was employed by the applicant as a shift manager on 1 April 1998, having worked for the applicant as an independent contractor from 1990 until his permanent appointment.
b.	A Mr Lawrence Naicker, who was employed by the applicant as a services supervisor, reported to the third respondent. Naiker was responsible for supervising a staff of eight employees.
c.	On 10 December 2012, the third respondent had encountered some of Naicker’s staff in the changing rooms during working hours. The applicant’s evidence was that the third respondent was angry and swore at the employees when instructing them to return to work and if they were not prepared to work that they should leave. The third respondent described his attitude as being agitated but denied swearing at the employees. (The second respondent described the third respondent as having been “irate”.)
d.	One of these employees reported to Naicker and complained about the manner in which the third respondent had spoken to and dealt with them and that he had denied them the opportunity to explain that they were "on a break" that had been authorised by Naicker.
e.	Having received this complaint, Naicker telephoned the third respondent and told him that if he had any problems with his (Naicker) team the third respondent should speak to him and he would attend to the problem. 
f.	The second respondent records that the content and tone of this conversation was in dispute. Naicker’s evidence was to the effect that he had asked the third respondent to speak to him if he had problems with his (Naickers) staff and he would sort it out. He also told the third respondent that the employees were his responsibility and not to interfere with his job as he didn’t interfere with the third respondent. This version was corroborated by the witness Maphumulo who was present at the time of the telephone conversation. The third respondent’s version was similar except that the third respondent during his evidence added the gloss that Naicker had told that he “had no business to tell his workers what to do” and that “in future he should mind his own business. The third respondent’s evidence was that he regarded Naicker as having been insubordinate and that it had made him angry. Following this conversation, the third respondent went to Naicker's office where he confronted Naicker over the incident and Naicker's telephone call. 
g.	The third respondent’s version was that he had simply gone to Naicker’s office to remonstrate or counsel with him regarding the issues pertaining to the employees he had discovered in the change room, the work that needed to be done and his so-called insubordination. The third respondent specifically denied pushing Naicker, Pillay or Maphumulo.
h.	Later that day, Naicker had reported to the third respondent in relation to an issue relating to work. At this meeting, the third respondent had apologised for raising his voice and acting unprofessionally.
i.	Sometime after the incident, the applicant suspended the third respondent and charged him with misconduct. The charge of misconduct was:
i.	assaulted a fellow employee (Naicker) by pushing him and  manhandling him into his (Naicker’s) office; and
ii.	impaired the dignity or personality of a fellow employee (Naicker) by physically manhandling him and dealing with him in a manner that is inappropriate.
j.	The third respondent was found guilty of the misconduct and dismissed.
[7]	At the arbitration, the applicant led the evidence of:
a.	Mr Zeblon Maphumulo, a process supervisor whose office was adjacent to Naicker's and who was present when the third respondent approached Naicker after the fateful telephone call. Maphumulo’s evidence was that he had overheard the telephone call Naicker had made to third respondent and confirmed that Naicker had told the third respondent that if he had problems with his team he should take it up with him and not to interfere with the staff as he does not interfere with the third respondent’s work. Maphumulo did not consider Naicker to have been rude to the third respondent.
The transcript of the record reveals that Maphumulo explained that when the third respondent arrived at Naicker's office, he was angry and that he pushed Maphumulo aside and pushed Naicker backwards into Naicker's office. The door had been slammed shut and Naicker had called out Maphumulo’s name. In response, Maphumulo had attempted to open the door but could not get in as the door was either locked or there was someone preventing the door from being opened.
b.	Mr Stanley Pillay, a Bagasse Head Operator, was also present when Naicker made the telephone call and when the third respondent arrived at Naicker's office. Pillay’s evidence was similar to that of Maphumulo in that he described how the third respondent had pushed Maphumulo aside and “grabbed Naicker with both hands” and pushed him into his office. He had also heard Naicker calling “Zeblon Zeblon”  (Maphumulo)
During cross-examination of Pillay, he was adamant that Naicker had done or said nothing wrong or inappropriate during the telephone conversation with the third respondent. 
[8]	In analysing the evidence of the applicant’s witnesses, the second respondent records that the precise nature of the interaction or altercation was in dispute. The second respondent however finds the following:
‘I largely accept the evidence of Maphumulo and Pillay. They both gave their evidence reasonably well. I accept that the [third respondent] was angry, that he pushed Maphumulo, Pillay and Naicker...
[9]	The second respondent however records that she was troubled by Naicker's evidence in that his version differed from his initial statement in the version he gave at the disciplinary enquiry. Likewise, the second respondent is dismissive of the third respondent’s evidence. The second respondent was of the view that both Naicker and the third respondent had exaggerated what had transpired in Naicker's office. The third respondent’s version was that he was not angry when he had approached Naicker, that his intention was to counsel Naicker and that he had not threatened Naicker to the extent described. This is in direct contrast with the applicant’s admission in his evidence in chief during the arbitration that he was angered by Naicker’s telephone call and regarded his conduct as being insubordinate.
[10]	The second respondent, however, when considering whether the third respondent was guilty of an assault, appears to confuse the issues of the gravity of the assault the third respondent’s guilt and an appropriate sanction in light of the evidence presented. The second respondent records the following in her award:
‘If someone slams and locks a door intentionally and then proceeds to put a fist in a subordinate's face and threatens to beat him up, this constitutes a serious assault where dismissal would be justified. But on the other hand, if a person loses his temper and shouted at a subordinate and is a little rough in his or her approach, then, if it is out of character the person has a good service record, a different approach to sanction should be adopted.’
[11]	The two examples which the second respondent records bear scant resemblance to the misconduct described in the charge sheet (of which the third respondent was found guilty). The incident described by Maphumulo and Pillay, which the second respondent describes as: “I accept that the [third respondent] was angry, that he pushed Maphumulo, Pillay and Naicker...” directly accords with the misconduct of which the third respondent was found guilty.
[12]	The second respondent concludes that the third respondent was not guilty of the first count of misconduct:
‘...and regard to the misgivings I have in relation to the reliability of Naicker's evidence I have given the [third respondent] the benefit of the doubt on the basis of the onus in a case like this which is upon the employer to prove the misconduct.
[13]	Despite clear and credible evidence that the third respondent was guilty of the misconduct with which he was charged viz assault, the second respondent surprisingly continues to categorise the incident as "an inappropriate workplace difference” and holds:
‘such a difference even if it is accompanied by some pushing and shouting is quite different from actually punching or generally threatening to beat up an employee. It was an over robust reprimand for what the [third respondent] had considered to be insubordination by Naicker that had provoked the applicant to become very angry and for which he later apologised.’ 
[14]	The third respondent, then somewhat startlingly, on the question of whether the third respondent was “guilty of misconduct”, concluded that he was guilty of the misconduct described in the second charge namely of impairing the dignity or personality of a fellow employee by physically manhandling him and dealing with him in a manner that is inappropriate”
[15]	What appears to have escaped the attention of the second respondent is that the first charge of misconduct levelled at the third respondent was:
1. Assaulted a fellow employee (Naicker) by pushing him and manhandling him into his (Naicker’s) office
The misconduct alleged in the charge sheet did not relate to what had transpired in the office with Naicker but to the third respondent’s conduct prior to what occurred in the office. 
[16]	The second respondent concludes that Naicker exaggerated what transpired in the office. Naicker’s evidence of what transpired outside the office is, however, corroborated by Maphumulo and Pillay’s evidence which the second respondents accepts. In light of this, the third respondent’s version was that he was not angry when he had approached Naicker, because his intention was to counsel Naicker and that he had not pushed Naicker Maphumulo and Pillay nor threatened Naicker can only be a complete fabrication by the third respondent, to which the second respondent appears to give some credence in order to avoid concluding that the third respondent was guilty of the assault with which he was charged. 
[17]	What is patently obvious from both the transcript of the evidence and the second respondent’s award is that the evidence of Naicker, Maphumulo and Pillay which was accepted by the second respondent, established quite clearly and unequivocally that the third respondent was guilty of the misconduct described in the charge sheet.
[18]	During the course of the arbitration and at the commencement of the third respondent's case, the third respondent led the evidence of the factory manager of the "downstream plant" of the applicant’s Sezela Mill, Mr Charles Kruger. Whilst Kruger's evidence was essentially led in mitigation of sanction, the second respondent records that during cross-examination, Kruger conceded that the applicant “had a zero tolerance policy in relation to assault, manhandling and impairing the dignity of an employee and agreed that if the applicant was found guilty of the charges that dismissal was appropriate sanction.”
[19]	There can be no doubt that the second respondent accepted that the evidence adduced by the applicant established that the third respondent was guilty of the misconduct with which he was charged; both the first and the second counts. Despite this the second respondent came to the conclusion that the applicant had not discharged the onus of establishing the third respondent’s guilt in respect of the first count of misconduct namely assault. It is also important that in addition, the second respondent accepted the evidence of Kruger that the misconduct with which the third respondent was accused, if he was guilty thereof, warranted dismissal.
[20]	It is trite that the test applied when determining whether an award is reviewable is, simply put, whether the decision reached by the Commissioner is one that a reasonable decision-maker could not reach taking into account the evidence placed before her/his.
[21]	In the recent decision of Herholdt versus Nedbank, the Supreme Court of Appeals had occasion to consider the essence of the test to be applied in determining the reviewability of a commissioner’s award. The court held the following:
‘In summary, the position regarding the review CCMA is this: a review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in section 145 (2) (a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by section 145 (2) (a) (ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for the award be set aside, but are only of any consequences the effect is to render the outcome unreasonable.’
[22]	In this matter, taking into account the following material facts that were placed before the second respondent, it is difficult to conceive on what basis the second respondent’s award can be said to be a "reasonable outcome". The relevant facts are:
a.	the third respondent was accused and found guilty of 
i.	assault[ing] a fellow employee (Naicker) by pushing him and manhandling him into his (Naicker’s) office; and
ii.	impair[ing] the dignity or personality of a fellow employee (Naicker) by physically manhandling him and dealing with him in a manner that is inappropriate.
b.	The evidence of Maphumulo and Pillay, which evidence was accepted by the second respondent, clearly established that the third respondent was guilty of the misconduct with which he was charged;
c.	The evidence of the applicant at the arbitration was that it had a zero tolerance policy in relation to assault and threats made to co-employees and that it considered behaviour that impaired the dignity of the employee/victim to be sufficient to destroy the employment relationship. In addition, a senior factory manager of the applicant’s Sezela Mill, Mr Charles Kruger, although giving evidence in mitigation for the third respondent conceded that the applicant “had a zero tolerance policy in relation to assault, manhandling and impairing the dignity of an employee and agreed that if the applicant was found guilty of the charges that dismissal was appropriate sanction.
[23]	By accepting the evidence of Maphumulo and Pillay, there was no reasonable basis upon which the second respondent could conclude that the third respondent was merely guilty of impairing Naicker's dignity other than to avoid the consequence of accepting that the third respondent was guilty of assault. Let alone that the applicant had not discharged the onus of establishing the third respondent’s guilt. The third respondent’s own witness’s evidence established that the applicant regarded assault as serious misconduct justifying dismissal. At no stage was it ever suggested that the applicant’s zero tolerance policy to assault was unreasonable.
[24]	Despite the fact that the second respondent did not accept the third respondent’s evidence and that at all times the third respondent denied in any way having assaulted, pushed or manhandled Naicker, the second respondent makes much of the third respondent so-called contrition. The evidence does not justify the conclusion reached by the second respondent that the third respondent was contrite and apologised for the incident. To the contrary: the second respondent found the third respondent to have been untruthful in his evidence regarding what had transpired. The second respondent clearly found that the evidence of the applicant’s witnesses to be truthful as regards the third respondent having “assault[ed] a fellow employee [Naicker] by pushing him and manhandling him into his [Naicker’s] office”. 
[25]	Given the evidence placed before the second respondent during the arbitration and in particular the second respondent’s conclusions as to the veracity of the applicant’s witnesses; the third respondent's denial of the seriousness of the incident: the second respondent’s conclusion that the third respondent was simply "over robust" and that the sanction of dismissal was unfair is a conclusion to which a reasonable arbitrator could not reasonably have come.
[26]	In the circumstances and for the reasons set out above, I make the following order:
a.	The award of the second respondent under case number KNDB 3102/12 is reviewed and set aside and the applicant’s dismissal of the third respondent is declared to be both procedurally and substantively fair;
b.	There is no order as to costs.

_________________
D H Gush
Judge

APPEARANCES
FOR THE APPLICANT: 			I Lawrence Edward Nathan Sonnenbergs
FOR THE THIRD RESPONDENT:	P Schumann
Instructed by Halse Haveman Lloyd & Attorneys