FMD Motors (Pty) Ltd t/a Daly Auto Ford Potchefstroom v MISA obo Erasmas and Others (JR822/20) [2021] ZALCJHB 422 (5 November 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

CASE NO: JR 822/20

In the matter between:

FMD MOTORS (PTY) LTD t/a

DALY AUTO FORD POTCHEFSTROOM Applicant

And

MISA obo RIAAN ERASMAS First Respondent

THE COMMISSIONER: PIETER GREYLING Second Respondent

THE DISPUTE RESOLUTION CENTRE FOR

THE MOTORS INDUSTRY BARGAINING COUNCIL Third Respondent

Considered in chambers

Date Delivered: 05 November 2021

JUDGMENT

MANGENA AJ

[1] The applicant seeks to review and set aside an arbitration award issued by the second respondent on 2 March 2020 under case number MINT70164F. The application is opposed by the first respondent through the agency of his union Motor Industry Staff Association.

[2] The background facts are as follows: - Riaan Erasmus (Erasmus) was employed as a mechanic at Daly Auto Ford Potchefstroom in 2016 earning a salary of R3 200.00 per week. On or about 07 August 2019 he was assigned a motor vehicle belonging to a customer Mr Bennie Fourie to service. In the process of servicing the vehicle he used foul language in reference to the customer and same was recorded on a dash cam which was installed in the vehicle. The customer, Mr Fourie lodged a complaint with the management of the company and handed an audio copy of the recording.

[3] The applicant instituted disciplinary proceedings against Erasmus where he was charged with gross misconduct relating to unacceptable personal conduct, foul language, conduct unbecoming of an employee of Daly Ford and damaging the company’s reputation. He pleaded not guilty to the charges and after the evidence was tendered, he was found guilty and dismissed from the company on 20 August 2020.

[4] Aggrieved by the dismissal, Erasmus referred an unfair dismissal dispute to the Motor Industry Bargaining Council for conciliation and later arbitration. He challenged both the procedural and substantive fairness of the dismissal and prayed for compensation. The matter was arbitrated by the second respondent who found that the dismissal was substantively unfair. He ordered the applicant to pay Mr Erasmus an amount of R 55 424.00 being equivalent to four months’ remuneration.

[5] In arriving at the decision, the arbitrator considered the evidence of two witnesses for the employer, namely Ms S Pyburn, who was the Human Resource Manager and Mr B Botes who chaired the disciplinary hearing. The employee testified in his own defence and did not call any other witness.

[6] Ms Pyburn testified about the policy of the company with regard to the use of foul language and stated that the disciplinary code regards abusive insulting language or behaviour towards fellow employees, customers and all supplier that deals with the company as constituting a serious transgression. The code further provides that either a final written or a dismissal would be appropriate depending on the circumstances. She further testified about the circumstances under which the recording was brought to the attention of management resulting in the disciplinary hearing being instituted. Overall the company had been consistent in the application of discipline on the use of foul language whenever it was reported to management.

[7] Mr Botes testified on the procedure he followed in conducting the disciplinary hearing. He stated that the employee was asked to make a suggestion on the alternative sanction but declined the offer. He instead dared the employer to dismiss him. He stated further that an alternative would have been suspension without pay, if an agreement to that effect could be reached. In cross-examination it was pointed out to him that the disciplinary record does not reflect that the employee was afforded an opportunity to suggest the alternative sanction. He insisted that it does and Mr Erasmus has signed as proof that he acknowledged the correctness thereof.

[8] The employee testified in his defence and admitted that he used foul language as contained in the recording. He however denied that he violated the company policy as he was talking to himself and secondly he did not agree to be recorded. He contended that the customer had violated his privacy by recording him without his consent. He testified that the company and its management has been tolerant of the use of the foul language and in support of this, he produced WhatsApp messages exchanged between employees including the workshop manager, Mr Fuller. He denied the allegation that he refused to suggest alternative sanction and dared the chairperson to dismiss him. The chairperson of the disciplinary hearing stood up and handed him a notice of dismissal, which he accepted and left the building.

[9] In his analysis of the evidence, the arbitrator found that evidence of the audio recording was relevant and therefore admissible to the proceedings. He however, found that whilst it is true that the abusive language was used about the customer, the employee Mr Erasmus did not intend to disclose the derogatory remarks to the customer as he was not aware that he was being recorded. The arbitrator further found that the company had been tolerant of the use of abusive and foul language and it was only after Mr Fourie, the customer had complained that steps were taken. Consequently, he found that the employee did not contravene the rule as he did not address the crude comment to the specific customer and therefore his dismissal was substantively unfair.

[10] The applicant attacks the award on various grounds which when cumulatively considered amounts to failure on the part of the arbitrator to consider relevant evidence, or ignored facts relevant to the dispute. It is further argued that the arbitrator exceeded his powers by refusing to allow Mr Botes to represent the company during the arbitration proceedings. It is contended that the refusal resulted in the company being prejudiced in its presentation of the case. It is submitted on behalf of the applicant that the award by the arbitrator is unreasonable.

[11] The test for review is well-established and the threshold is reasonableness as expounded in Sidumo and Another v Rustenburg Platinum Mines Ltd and Another[1]: is the decision reached by the commissioner one that a reasonable decision-maker could not reach?. In Duncanmec (Pty) Ltd v Gaylard N.O and Others[2], the constitutional court explained it as follows: -

“This test means the reviewing court should not evaluate the reasons provided by the arbitrator with a view to determine whether it agrees with them. That is not role played by a court in review proceedings. whether the court disagree with the reasons is not material.

The correct test is whether the award itself meets the requirement of reasonableness. An award would meet this requirement if there are reasons supporting it. The reasonableness requirement protects parties from arbitrary decisions which are not justified by rational reasons.

[12] In Herholdt v Nedbank Ltd and Another[3], the court said that: 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 an award to be set aside, but are of consequence if their effect is to render the outcome unreasonable.

[13] In Bidair Services (Pty) Ltd v Sekhabisa N.O and Others[4], Snyman AJ elucidated further on how reasonableness is determined and said the following:-

“[29] What this means is a two stage review enquiry. Firstly, the review applicant must establish that there exists a failure or error on the part of the arbitrator. If this cannot be shown to exist, that is the end of the matter. Secondly, if this failure or error is shown to exist, the review applicant must then further show that the outcome arrived at by the arbitrator was unreasonable. If the outcome arrived at is nonetheless reasonable, despite the error or failure that is equally the end of the review application. In short, in order for the review to succeed, the error or failure must affect the reasonableness of the outcome to the extent of rendering it unreasonable”

Ground for review

[14] The applicant avers that the arbitrator failed to allow the applicant’s representative Mr Botes to represent the company in the arbitration proceedings. As a result of this failure the company was severely prejudiced as it was represented by its Human Resource Manager, Ms Pyburn. I have considered the record and it clearly states that the arbitrator granted a request for a postponement to allow the company to obtain proper representation. The purpose was to avoid the company being prejudiced. The company chose to re-argue the issue of representation without applying for the rescission of an earlier ruling which was in all material respect incorrect. The failure to apply for rescission meant that an incorrect ruling remained in force. The company was however ably represented by Ms Pyburn and from the reading of the record, she presented the company’s case accurately. I therefore do not think that the company was prejudiced as a result of the refusal by the arbitrator to represent the company.

[15] With regard to the evidence tendered at the disciplinary hearing and alleged failure by the arbitrator to give due consideration thereto. The arbitrator did not disregard the disciplinary record, he considered it and found that it does not support the employer’s contention that the employee dared the chairperson to dismiss him. He accepted the employee’s version that he was not invited to suggest an alternative sanction. Indeed, there is no record of such discussion in the transcribed record of the disciplinary proceedings.

[16] On a conspectus of the evidence tendered, the award by the arbitrator falls within the band of reasonableness and the applicant has failed to prove the existence of a material error sufficient to render the award reviewable. The award therefore enjoys the Sidumo protection and there is no need to interfere with it.

Costs

[17] It is trite that costs do not follow the result in labour matters. The applicant was not frivolous in her pursuit of the review and acted with alacrity to ensure finality. I intend to make no order as to costs.

[18] It is ordered that:

Order:

The application for review is dismissed

There is no order as to costs.

M. I. Mangena

Acting Judge of Labour Court of South Africa

Appearances:

For the Applicant: Waks Silent Attorneys

For the Respondent: Gerrie Ebersöhn Attorneys Inc

[1] (2007) 28 ILJ 2405 (CC)

[2] (2018) 39 ILJ 2633 (CC)

[3] (2013) 34 ILJ 2795 (SCA)

[4] Unreported JR 1743/2017