Bidvest Protea Coin (Pty) Ltd v Myeni and Others (JR1164/21) [2022] ZALCJHB 56 (15 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1164/21

In the matter between:

BIDVEST PROTEA COIN (PTY) LTD

Applicant

and

BONISIWE THUTHUKANI MYENI

First Respondent

THABE LAZARUS NKADIMENG N.O.

Second Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Third Respondent

Heard: 9 February 2022

Delivered: 15 March 2022

Summary: Application to review and set aside arbitration award – review test – procedural unfairness - reasonableness of arbitrator’s decision – arbitrators’ decision not reasonable on the facts before him

JUDGMENT

DEANE, AJ

Introduction and Background

[1] This is an unopposed application to review and set aside an arbitration award under case number MPEM3219-20 dated 9 May 2021 of the second respondent (Commissioner), made under the auspices of the third respondent.

[2] The Commissioner found the dismissal of the first respondent (Myeni) from the employ of the applicant (Applicant) to be substantively fair but procedurally unfair. The Applicant was ordered to compensate Myeni in the amount of R26 880.00 which is the equivalent of 7 months remuneration.

[3] Myeni was employed by the Applicant on 6 November 2018. At the time of her dismissal, she was employed as a security guard and she earned a monthly salary of R3 840.00. Myeni was dismissed on 18 March 2020 for reasons relating to misconduct.

[4] Myeni was charged and dismissed for misconduct after the Applicant had discovered that on 10 February 2020 a tow truck entered a client’s premises, loaded a lighting plant to the value of between R80 000.00 and R150 000.00 and left the client’s premises. Myeni failed to report the incident to her superiors and she was accordingly

charged with dereliction of duty.

[5] The Applicant does not take issue with the Commissioner’s finding in respect of the substantive fairness of Myeni’s dismissal. The Applicant only seeks to review and set aside the Commissioner’s findings in respect of the procedural unfairness and the compensation awarded to Myeni.

Grounds for Review

[6] The Applicant’s grounds for review challenge the failure of the Commissioner “to apply his mind to the evidence that was properly placed before him, committed gross irregularities in the arbitration proceedings and/or grossly misconducted himself in the exercise of his duties.”[1] Specifically; the Applicant seeks to review and set aside the award on the basis that the Commissioner:

6.1 placed a heavier evidential burden on the Applicant than was necessary, rendering the Commissioner’s award unreasonable;

6.2 failed to consider and/or failed to correctly interpret and apply the prescribed principles in terms of the Code of Good Practice: Dismissal[2] (Code); and

6.3 failed to properly consider the issue of an appropriate remedy.

Legal Principles

[7] It is trite that the test the Labour Court is required to apply in a review of an

arbitrator’s award is, “is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”[3]

[8] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[4] (Sidumo) the Constitutional Court very clearly held that the arbitrator’s conclusion must fall within a range of decisions that a reasonable decision-maker could make, and the reasonableness test is still aptly described in the pre-Sidumo case of Computicket v Marcus NO and Others[5] where it was held that “the question I have to decide is not whether [the arbitrator’s] conclusion was wrong but whether ... it was unjustifiable and unreasonable.”

[9] Therefore, for the Applicant to succeed with the review application, it must be established that the Commissioner’s decision fell outside the bounds of reasonableness on all the material that was before him, including for the reasons not considered by him.[6] An award will no doubt be considered to be reasonable when there is a material connection between the evidence and the result or, put differently when the result is reasonably supported by some evidence. Unreasonableness is, thus, the threshold for interference with an arbitrator’s award on review.

Analysis

[10] The employer representative (Manamela) testified that the employer has a policy on discipline[7] that is supported by item 4 of the Code[8] which reads:

‘Fair procedure —(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.’

[11] The Commissioner responds that “I observed that the policy is a replica of Item (4) of the Code” and that Manamela “served Myeni with a notice of written misconduct enquiry”.[9]

[12] In addition, at the arbitration, Johannes Van Zyl, a contract manager of the Applicant, testified on behalf of the Applicant that he verbally explained to Myeni her rights. However, this was refuted by Myeni who indicated that Van Zyl did not explain to her, her rights. Van Zyl further testified that a National Union of Mineworkers (NUM) official, Nelson Nhambe, approached him and that he told the official that NUM could help Myeni to write a statement.[10]

[13] The Commissioner observed in the Award that “Van Zyl did not testify that he explained to Myeni her rights”[11] and that “….Item 4 of the Code states that in notifying the employee of an allegation, the employer should use a form that the employee could reasonably understand. It is established jurisprudence that the form is a written form”[12] and that “the Respondent did not furnish Myeni with her rights in a written form. Myeni’s testimony that the Respondent did informed (sic) her of her rights was not successfully rebutted. The Respondent has failed with dismay to prove that it had explained to Myeni her rights.”[13]

[14] In support of procedural fairness, Manamela, in the arbitration hearing referred to the authoritative case of Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and others,[14] (Avril Elizabeth Home) which states that:

‘When the Code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss.’

[15] Manamela submitted that according to the legal principles of this case, there was indeed an opportunity

for dialogue and reflection before Myeni’s dismissal and that Myeni was properly charged.[15]

[16] However, Myeni testifies that “…There were no such charges that were levelled. I was merely asked to provide a statement. I wrote a statement as to what had transpired. Thereafter I got suspended and I was called back. That is when I got dismissed”.[16]

[17] With regards to the Avril Elizabeth Home case, the Court stated that:[17]

‘In the absence of exceptional circumstances, the substantive content of this process as defined by Item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within a reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee. The employer should then communicate the decision taken, and preferably communicate this in writing. If the decision is to dismiss the employee, the employee should be given the reason for dismissal and reminded of his or her rights to refer any disputed dismissal to the CCMA, a bargaining council with jurisdiction…’

[18] The Court further states that:

‘The standard of procedural fairness that I have described above is the standard that the Act establishes, and which must be applied by commissioners. Section 203 of the Act obliges them to do so. That section requires, in peremptory terms, that any person who interprets or applies the Act must take into account any relevant code of good practice’.[18]

[19] In casu, the written misconduct enquiry[19] form together with the notification of suspension form[20] clearly indicate what the rights of the employee are. It is clear that evidence was presented that there was a written notice of the charges that Myeni faced, that Myeni was advised of her right to submit documentary evidence, evidence was submitted that Myeni was advised of her right to be represented, Myeni was provided with an opportunity to prepare a written response[21] and that Myeni was provided with a written outcome and was further advised of her rights to refer the matter to the Commission for Conciliation, Mediation and Arbitration[22]. In addition, Van Zyl testified that a NUM official approached him regarding the charges, clearly indicating that Myeni did understand

her rights. In addition, the evidence provided does not show that Myeni was deprived of the right to call witnesses or to present

material evidence.

[20] In the current circumstances, it would appear that the Applicant did indeed comply with the Code and with its disciplinary process. Faced with this evidence, this then begs the question of why the Commissioner would conclude that “I find that the Respondents approach to procedural fairness is a sheer repulsive repugnant travesty of the principles of fair labour practices as enshrined in section 23 of the Constitution. I find it a bit baffling enigma for Manamela, with eighteen years of experience to formulate written misconduct enquiry.”[23] The facts do not support this conclusion.

[21] Indeed taking into account the applicable legal principles as enunciated in Sidumo and Avril Elizabeth Homes, it is clear that the Commissioner failed to correctly interpret and apply the prescribed principles in terms of the Code.

[22] There was clearly a dialogue and reflection, and the evidence clearly establishes that Myeni was informed of her rights and that this was also done in written form, as required by the Commissioner. Faced with the facts and the evidence, the conclusion of the Commissioner that Myeni’s dismissal was procedurally unfair is not a conclusion that a reasonable arbitrator in the position of the Commissioner would have reasonably come to.

Conclusion

[23] On the basis of the abovementioned grounds, the Commissioner’s decision that the dismissal was procedurally unfair falls outside the bounds of reasonableness on all the material that was before him, including for the reasons not considered by him.

[24] In the premise the following order is made:

Order

1. The commissioner’s findings in respect of the procedural unfairness

and compensation awarded by the second respondent under case number MPEM3219-20 is set aside.

2. The dismissal of the first respondent is both procedurally and substantively fair.

3. There is no order as to costs.

____________________

T. Deane

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: S Lancaster

For the Respondent: None

[1] Notice of Motion at para 33, p. 15.

[2] Schedule 8 to the Labour Relations Act No. 66 of 1995, as amended.

[3] 2008 (2) SA 24 (CC) at para 110.

[4] Ibid at paras 118-119.

[5] (1999) 20 ILJ 343 (LC) at 346D.

[6] Fidelity Cash Management Services v CCMA and Others [2008] 3 BLLR 197 (LAC) at para 103.

[7] Correction and Termination of Employees Policy, p. 109 of Index.

[8] Arbitration award at para. 23, p. 4.

[9] Arbitration award, pgs. 4-5.

[10] Transcript, pgs. 23-24.

[11] Arbitration Award, pg. 20, para. 24.

[12] Arbitration Award, pg. 20, para. 25.

[13] Arbitration Award, pg. 20, para. 26.

[14] [2006] 9 BLLR 833 at 841.

[15] Transcript, pgs. 4-5.

[16] Transcript, pg. 4 lines 17-28.

[17] Ibid, at p. 841.

[18] Ibid, at p. 841.

[19] Index: Record of Proceedings, p. 96.

[20] Index: Record of Proceedings, pgs. 97-98.

[21] Written Misconduct Enquiry, p. 96 & Notification of Suspension Form, pgs. 97-98 of the Index: Record of Proceedings.

[22] Page 98 of the Index: Record of Proceedings

[23] Arbitration award at para 32, p. 21.