Bosveld Sitrus (Pty) Ltd v HOCAFAWU obo Mogofe and Others (JR970/12) [2016] ZALCJHB 138 (31 March 2016)

THE LABOUR COURT OF SOUTH AFRICA

JOHANNESBURG

Not Reportable

Case No: JR970/12

In the matter between:

BOSVELD SITRUS (PTY) LTD

Applicant

and

HOCAFAWU obo KEDI FRANCINA MOGOFE

First Respondent

THE COMMISSION FOR CONCILIATION, MEDIATION AND

ARBITRATION

Second Respondent

COMMISSIONER BRETELL EVELYN

RICKMAN HONE, N.O.

Third Respondent

Heard: 17 March 2015

Judgment: 31 March 2016

Summary: Application to review and set aside an arbitration award in terms of s. 145 of the LRA; Applicant’s grounds for review incompatible with the evidence before the Commissioner; Commissioner’s award unassailable; Application dismissed with no order as to costs.

JUDGMENT

VOYI, AJ

Introduction

[1] The Applicant is Bosveld Sitrus (Pty) Ltd, a company that is in the business of growing and harvesting citrus fruit. It seeks to review and set aside an arbitration award that was issued by Commissioner Bretell Evelyn Rickman Hone (“the Commissioner”) on 26 March 2012 under case number LP8505-11.

[2] The application for review was launched in terms of s 145 of the Labour Relations Act.[1] There is no opposition by any of the Respondents.

Brief background

[3] The fons et origo of the matter is a statement that was uttered by one Ms Kedi Francina Mogofe (“Mogofe”), then a general worker of the Applicant, on 15 November 2011. She is reported to have said this:

‘Better that the foremen be killed because they are the ones taking the bonuses.’

[4] When news of this utterance came to the attention of the Applicant, Mogofe was suspended and disciplinary steps were taken against her. She was charged with misconduct in the following terms:

‘Making serious threatening/damaging remarks against your superiors in that on 15 November 2011 you said in reaction to a new performance

evaluation system managed by foremen: “Then we must kill the foremen”.’

[5] At the disciplinary enquiry held on 25 November 2011, Mogofe was found guilty of the charge levelled against her. As an appropriate sanction, summary dismissal was imposed by the chairperson of the enquiry.

[6] Following Mogofe’s dismissal, the First Respondent lodged an unfair dismissal dispute with the Commission for Conciliation, Mediation and Arbitration (“the CCMA”), the Second Respondent herein.

[7] The unfair dismissal dispute was, unsuccessfully, conciliated by Commissioner Nelson M. Ledwaba on 16 January 2012, whereafter a certificate of non-resolution was issued. The First Respondent, on behalf of Mogofe, requested arbitration and the matter was eventually enrolled for arbitration before the Commissioner.

The arbitration proceedings and the award

[8] The arbitration proceedings were held on 22 March 2012. At arbitration, the Applicant was represented by Mr R. Snyman, its group human resources manager. On the other hand, Mogofe was represented by one Mr S. B. Matsane, a trade union official.

[9] The Applicant’s case was advanced through two key witnesses, they being Mr Katlego Malale (“Malale”) and Ms Miriam Mdluli (“Mdluli”). Their evidence was very brief and basically focused on what Mogofe had expressed on 15 November 2011 as well as the circumstances under which the statement was said. Malale and Mdluli were, apparently, the only ones that overheard Mogofe uttering the statement in issue.

[10] Mogofe was the only one that testified in support of her case. She literally denied having uttered the statement for which she was dismissed by the Applicant. She also testified on, inter alia, issues surrounding leave of absence and bereavements in her family.

[11] In her award, the Commissioner found Mogofe’s dismissal to have been effected in accordance with a fair procedure. Of relevance, the Commissioner found Mogofe to be an unreliable witness.

[12] With regard to Mogofe’s defence to the misconduct allegation, the Commissioner found it to be one of bare denial which she considered to be improbable. In this connection, the Commissioner reasoned as follows:

‘5.9 The evidence of Mr Katlego indicates that [Mogofe] had uttered the words “Better that the foremen be killed because they are the ones taking the bonuses.” Both he and Ms Mdluli testified that [Mogofe] had said these words as a general comment and that she was not speaking to anyone in particular. I accept their evidence on this point and I accept their evidence that they both heard [Mogofe] utter the words. As mentioned above, I found [Mogofe] to be an unreliable witness. She claimed to have a clean disciplinary record, which was disproved at the arbitration, and I consider her defence of bare denial to be improbable.

5.10 I find that [Mogofe] did utter the words “Better that the foremen be killed because they are the ones taking the bonuses”.’

[13] As to the impact of and possible source of the statement, the Commissioner held as follows:

‘5.12 The evidence has established that [Mogofe] uttered the words as a general threat and addressing no one in particular. Indeed, Ms Mdluli testified that [Mogofe] had been talking to herself. The evidence also indicates that only Mr Katlego and Ms Mdluli had overheard [Mogofe]. Their evidence indicates that they were disturbed by the threats but hardly intimidated.

5.13 There is also a strong indication that [Mogofe] was aggrieved by the fact that she had not been permitted family responsibility leave to attend her brother’s funeral in October 2011, as she had used this leave to attend to her daughter’s funeral in August 2011. She had suffered two recent bereavements of two close family members ad had had her pay reduced by the days that she was absent at her brother’s funeral. In my view, these were angry words, muttered by a 53 years old woman to no one in particular and I do not consider them to have been intended as a serious threat. I believe that the circumstances of this case are very different to those prevailing in the case of Adcock Ingram Critical Care v CCMA and Others (JA41/00) [2001] ZALAC 10 and to the circumstances in the cases referred to by the Respondent in its closing argument.

5.14 I find that the threats uttered by [Mogofe] were made out of frustration and not with any serious intent to intimidate her superiors or anyone in particular. However, they cannot be ignored and management would need to respond, as it did. The question is: did the threats uttered by [Mogofe] constitute a dismissible offence?’

[14] In answer to the question posed, as aforesaid, the Commissioner found as follows:

‘5.16 The evidence of [Mogofe’s] disciplinary record indicates two previous recorded verbal warnings for absence from work without permission, issued in January and February 2010. These are old and are not relevant to the present charge.

5.17 It is common cause that the Applicant has been employed since 1970 – a period of over 40 years. Although this is acknowledged in the record of the disciplinary hearing, I do not believe that sufficient weight was attached to this mitigating factor. This is an unusually long period of employment and it must be accorded due weight.

5.18 In all the circumstances mentioned above, I find that the sanction of dismissal for the misconduct with which [Mogofe] has been found guilty was inappropriate and was substantively unfair. In my view, it would have been fair to apply corrective discipline and given [Mogofe] a final written warning to indicate that she needs to be guarded in her speech and to use proper channels to address her frustrations.’

[15] With regard to an appropriate remedy, the Commissioner held that Mogofe had ‘…requested to be reinstated and there [was] no compelling evidence to suggest that a continued employment relationship would be intolerable’. Accordingly, retrospective reinstatement was ordered, accompanied by back pay of 5 (five) months. It terms of the award, Mogofe was to report for work by 08h00 on 25 April 2012.

The Applicant’s grounds for review

[16] At paragraph 29 of its founding affidavit, the Applicant contends that the Commissioner’s award stands to be reviewed and set aside on the following grounds:

‘29.1 The decision reached by [the Commissioner] that the dismissal of [Mogofe] was substantively unfair because dismissal was not an appropriate sanction, and that the employee should be reinstated, is a decision that a reasonable Commissioner could not have come to; and

29.2 [He] made findings that are not rational or reasonable in relation to the reasons given or the material properly before him, he failed to consider relevant evidence, he considered irrelevant evidence and he considered the evidence before him in a manner that amounts to an excess of his powers ad a failure to apply his mind, which in turn constitutes misconduct and/or a gross irregularity on the part of [the Commissioner]. Such misconduct or gross irregularity results in the entire process being vitiated by virtue of the Applicant not receiving a proper hearing before [the Commissioner].’

[17] In expanding on these grounds for review, the Applicant advances two key contentions. The first is that the Commissioner considered a version that was not before her. The second deals with the appropriateness of the remedy of reinstatement as granted in favour of Mogofe.

[18] Having thoroughly considered the founding and supplementary affidavits, I could not discern any other pivotal basis upon which the Applicant assails the Commissioner’s award.

[19] It is unnecessary for me to recite, in any detail, the averments contained in the founding affidavit in amplification of the aforesaid contentions. All that is said in the founding affidavit, in particular, centres around the version that was allegedly not before the Commissioner as well as the appropriateness of reinstatement as a remedy.

The relevant legal principles

[20] As a point of departure, it is apposite to make direct reference to section 143(1) of the LRA, which stipulates that ‘[a]n arbitration award issued by a commissioner is final and binding…’

[21] Accordingly and as a matter of law, no appeal lies against an arbitration award of a CCMA commissioner.[2] The only available remedy to challenge such an award is review proceedings.

[22] In dealing with an application for review such as the present, the standard test to be applied is as postulated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others.[3] The Sidumo test asks this question:

‘Is the decision reached by the commissioner one that a reasonable decision maker could not reach?’

[23] It has been held, affirmatively so, that the Sidumo standard review test has not extinguished the specific grounds for review permissible under section 145(2)(a) and (b) of the LRA.[4] Instead, those specific grounds are to be 'suffused' with the constitutional standard of reasonableness.[5]

[24] It is, accordingly, my view that the Sidumo test is not a stand-alone ground for review in addition to the specific review grounds provided for under section 145(2) of the LRA. In Fidelity Cash Management Service v CCMA and Others,[6] the Labour Appeal Court (“the LAC”) held thus:

‘Nothing said in Sidumo means that the grounds of review in s 145 of the Act are obliterated. The Constitutional Court said that they are suffused by reasonableness.’

[25] It is, by now, axiomatic that both the ‘process related unreasonableness’ and the ‘dialectical unreasonableness’

approach to review are no longer part of our labour law as they have been expressly rejected by the Supreme Court of Appeal (“the

SCA”).[7]

[26] In equally rejecting the ‘process related review’ approach, the LAC, in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others,[8] stated that what is required in matters of the present nature is ‘…first to consider the gross irregularity that the

arbitrator is said to have committed and then to apply the reasonableness test established by Sidumo’.

[27] What a CCMA commissioner has to determine when dealing with an unfair dismissal claim was stated in the following terms in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (supra):

‘In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstance.’[9]

[28] In an arbitration award, a CCMA commissioner is not expected to give an elaborate narration of the evidence considered and/or findings

reached in support of his or her decision. Brief reasons suffice. In this connection, the LAC held as follows in County Fair Foods (Pty) Ltd v CCMA and Others:[10]

‘Awards are expected to be brief. It seems to me to be destructive of the whole concept of CCMA arbitrations over individual dismissals that a commissioner should be held not to have applied his mind to a particular fact because it is not explicitly dealt with in his award.’

[29] Clarity has, by now, been authoritatively given on when a CCMA arbitration award may be reviewed and set aside under section 145(2)(a)(ii) of the LRA. In Herholdt v Nedbank Ltd (COSATU as Amicus Curiae) (supra), the SCA held as follows:

‘A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry 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 particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’[11]

[30] In giving, further, clarity on the application of the Sidumo test, the LAC in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (supra) held as follows:

‘Sidumo does not postulate a test that requires a simple evaluation of the evidence presented to the arbitrator and based on that evaluation, a determination of the reasonableness of the decision arrived at by the arbitrator. The court in Sidumo was at pains to state that arbitration awards made under the Labour Relations Act (LRA) continue to be determined in terms of s 145 of the LRA but that the constitutional standard of reasonableness is ‘suffused’ in the application of s 145 of the LRA. This implies that an application for review sought on the grounds of misconduct, gross irregularity in the conduct of the arbitration proceedings, and/or excess of powers will not lead automatically to a setting aside of the award if any of the above grounds are found to be present. In other words, in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of the proceedings, but extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls in a band of decisions to which a reasonable decision-maker could come on the available material.’[12]

[31] In Goldfields, the LAC went further and stated the following:

‘[16] In short: A review court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decisions he or she arrived at.

[17] The fact that an arbitrator committed a process-related irregularity is not in itself a sufficient ground for interference by the reviewing court. The fact that an arbitrator commits a process-related irregularity does not mean that the decision reached is necessarily one that a reasonable commissioner in the place of the arbitrator could not reach.

[18] In a review conducted under s 145(2)(a)(c) (ii) of the LRA, the review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with one or some of the factors amounts to process-related irregularity sufficient to set aside the award. This piecemeal approach of dealing with the arbitrator’s award is improper as the review court must necessarily consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision-maker could make.

[19] To do it differently or to evaluate every factor individually and independently is to defeat the very requirement set out in section 138 of the LRA which requires the arbitrator to deal with the substantial merits of the dispute between the parties with the minimum of legal formalities and do so expeditiously and fairly.’[13]

[32] Of pivotal importance to the present matter, the LAC in Goldfields held as follows:

‘Failing to consider a gross irregularity in the above context would mean that an award is open to be set aside where an arbitrator (i) fails to mention a material fact in his award; or (ii) fails to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute; and/or (iii) commits an error in respect of the evaluation or considerations of facts presented at the arbitration. The questions to ask are these: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he was required to arbitrate (this may in certain cases only become clear after both parties have led their evidence)? (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?’[14]

[33] It is, by now, generally recognised that the Sidumo test on review is not an easy test to meet. This was emphasised by the LAC in Fidelity Cash Management Services v CCMA and Others (supra), where the following was remarked:

‘The test enunciated by the Constitutional Court in Sidumo for determining whether a decision or arbitration award of a CCMA commissioner is reasonable is a stringent test that will ensure that such awards are not lightly interfered with. It will ensure that, more than before, and in line with the objectives of the Act and particularly the primary objective of the effective resolution of disputes, awards of the CCMA will be final and binding as long as it cannot be said that such a decision or award is one that a reasonable decision maker could not have made in the circumstances of the case.’[15]

[34] It is, at times, difficult to accept that decisions of CCMA commissioners are not expected to be right or correct in all material

respects. This cold reality is best illustrated by making reference to Telcordia Technologies Inc v Telkom SA Ltd,[16] where the SCA pointed out the following in dealing with private arbitration proceedings:

‘The fact that the arbitrator may have either misinterpreted the agreement, failed to apply South African law correctly, or had regard

to inadmissible evidence does not mean that he misconceived the nature of the inquiry or his duties in connection therewith. It only means that he erred in the performance of his duties. An arbitrator ‘has the right to be wrong’ on the merits of the case, and it is a perversion of language and logic to label mistakes of this kind as a misconception of the nature of the inquiry– they may be misconceptions about meaning, law or the admissibility of evidence but that is a far cry from saying that they constitute a misconception of the nature of the inquiry.’[17]

[35] In Shoprite Checkers v Ramdaw NO and Others,[18] the LAC confirmed that some awards may have shortcomings but these would not, necessarily, render them susceptible to review. The LAC expressed itself as follows:

‘In my view it is within the contemplation of the dispute resolution system prescribed by the Act that there will be arbitration awards which are unsatisfactory in many respects but which nevertheless must be allowed to stand because they are not so unsatisfactory as to fall foul of the applicable grounds of review. Without such contemplation, the Act’s objective of the expeditious resolution of disputes would have no hope of being achieved.’[19]

[36] In highlighting that there is room for an arbitrator to make mistakes in his or her award, reference is made to the following decisions,

namely: NEWU v John and Another,[20] Zaayman v Provincial Director: CCMA Gauteng and Others,[21] Cadema (Pty) Ltd v CCMA (Western Cape Regional) and Others,[22] Gray Security Services (Western Cape) (Pty) Ltd v Cloete NO and Another,[23] Irvin and Johnson Ltd v CCMA and Others.[24]

[37] Pursuant to the above survey of the relevant authorities in review proceedings, I now proceed to evaluate the Applicant’s application for review as launched under section 145 of the LRA.

Evaluation

[38] To reflect, the Applicant assails the arbitration award on two fronts. The first compliant is that the Commissioner considered a version that was not before her. The second is that she granted a remedy that was not appropriate under the circumstances.

[39] In essence, the Applicant contends that it was never Mogofe’s version that she had committed the alleged misconduct in making the statement but that this statement was ‘made out of frustration and not with any serious intent to intimidate her superiors or anyone in particular’.

[40] This contention stems from what is stated at paragraph 5.13 and 5.14 of the Commissioner’s award. The Applicant, in relation to what the Commissioner states at paragraph 5.14, takes the view that the Commissioner ‘…exceeded [her] powers by considering a version that was not before [her] at all, namely that the Statement was made but was not meant to intimidate, and that it was made by Mogofe in a state of frustration’.

[41] I do not agree. It was the Applicant’s own representative at the arbitration proceedings who suggested that Mogofe was frustrated. The following except from the record reveals that the said representative suggested to Mogofe that she was frustrated:

‘MR SNYMAN: I put it again to you that you were frustrated, you started getting frustrated and angry, you did not follow the proper procedures and that is why you uttered the words kill the foreman.’[25]

[42] It was the Applicant itself which held the view that Mogofe was frustrated and angry when she uttered the statement. The very same Applicant now complains when the Commissioner upholds that view. In fact, elsewhere in the transcript, the following appears:

‘MR SNYMAN: You are avoiding the question MS MOGOFE. I put it to you that you were unhappy about the bonus system which the meeting was about and out of sheer frustration you stood there and you said loudly to everyone so that every – so that people 10 metres away can hear, then we must kill the foremen.’[26]

[43] This, to me, exposes the fallacy of the contention that there was no version before the Commissioner supporting her conclusion that the threats uttered by Mogofe were made out of frustration. The Commissioner went with what the Applicant was saying regarding Mogofe’s state of mind. That can hardly be considered a reviewable irregularity.

[44] On the Commissioner mentioning that the threats uttered were not with any serious intent to intimidate superiors or anyone in particular, this was simply her finding. It was not necessarily a version but a finding based on the evidence presented before her. This finding is linked to the following assessment of the evidence by the Commissioner at paragraph 5.12 of the award:

‘The evidence has established that [Mogofe] uttered the words as a general threat and addressing no one in particular. Indeed, Ms Mdluli testified that [Mogofe] had been talking to herself. The evidence also indicates that only Mr Katlego and Ms Mdluli had overheard [Mogofe]. Their evidence indicates that they were disturbed by the threats but hardly intimidated.’

[45] I, therefore, have no hesitation in rejecting this particular attack on the Commissioner’s award.

[46] With regard to the remedy of reinstatement, the Commissioner held that ‘…there [was] no compelling evidence to suggest that a continued employment relationship would be intolerable’. To me, this finding cannot be faulted.

[47] The Applicant called only two witnesses at arbitration, they being Malale and Mdluli. These witnesses did not testify, at all, on the intolerability of a continued employment relationship. They never testified that they would not be able to work with Mogofe again.

[48] Of significance, the two witnesses had testified that Mogofe was talking to herself when she uttered the statement. They tendered no evidence that the employment relationship had disintegrated to a point of no return as a result of the utterance by Mogofe. Absent any such evidence, the Commissioner cannot be faulted for having granted reinstatement as a remedy. After all, reinstatement is the primary remedy to be afforded to an employee who has been dismissed unless the exceptions section out in section 193(2) of the LRA find application.

[49] The conclusion reached by the Commissioner on the remedy of reinstatement is, to me, one that falls within the realm of what is reasonable. There was, indeed, no compelling evidence to suggest that a continued employment would be intolerable.

[50] The Applicant does not point out to any such evidence in its supplementary affidavit, which was delivered after the record of the arbitration proceedings was filed.

[51] I could not find any evidence by either Malale or Mdluli to the effect that the statement uttered by Mogofe had a ‘deep emotional impact’ on Mdluli. The latter simply said she did not feel well and was afraid. A ‘deep emotional impact’ appears to me to be an embellishment.

[52] It was Malale’s evidence that they continued to apply the new bonus system after 15 November 2011. In my view, the Commissioner was on track in finding that the two witnesses were hardly intimidated by Mogofe’s utterances.

[53] All things considered, it is my judgment that no case has been made out for the setting aside of the Commissioner’s award. The Applicant’s application for review, therefore, stands to be dismissed. There shall be no order as to costs as the matter is unopposed.

Order

[54] I, accordingly, make the following order:

54.1 The Applicant’s application to review and set aside the arbitration award issued by the Third Respondent on 26 March 2012 under case number LP8505-11 is dismissed.

54.2 There is no order as to costs.

____________

NP.Voyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr Dion Masher (Attorney) of ENS Africa Inc.

For the Respondents: (No appearance)

[1] Act No. 66 of 1995 (“the LRA”).

[2] See: National Union of Mineworkers and Another v Samancor Ltd (Tubatse Ferrochrome) and Others (2011) 32 ILJ 1618 (SCA) at para 5; Shoprite Checkers (Pty) Ltd v CCMA and Others 2009 (3) SA 493 (SCA); (2009) 30 ILJ 829 (SCA) at para 26.

[3] 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC) at para 110.

[4] Herholdt v Nedbank Ltd (COSATU as Amicus Curiae) 2013 (6) SA 224 (SCA); (2013) 34 ILJ 2795 (SCA) at para 14.

[5] Ibid.

[6] (2008) 29 ILJ 964 (LAC) at para 101.

[7] See: Herholdt v Nedbank Ltd (COSATU as Amicus Curiae) (supra) at para’s 20 and 24.

[8] (2014) 35 ILJ 943 (LAC) at para 15.

[9] Sidumo (supra) at para 79.

[10] (1999) 20 ILJ 1701 (LAC) at para 47.

[11] Herholdt (supra) at para 25.

[12] Gold Fields Mining SA (supra) at para 14.

[13] Ibid at 16-19.

[14] Ibid at para 20.

[15] Fidelity Cash Management Services (supra) at para 100.

[16] 2007 (3) SA 266 (SCA).

[17] Ibid at para 85.

[18] (2001) 22 ILJ 1603 (LAC).

[19] Ibid at para 101.

[20] [1997] 12 BLLR 1623 (LC).

[21] (1999) 20 ILJ 412 (LC).

[22] (2000) 21 ILJ 2261 (LC).

[23] (2000) 21 ILJ 940 (LC).

[24] [2006] 7 BLLR 613 (LAC).

[25] Transcript; p. 115, lines 12 - 15

[26] Ibid, p. 114, lines 4 – 7.