South African National Parks v Crouse and Others (JR2235/19) [2021] ZALCJHB 162 (22 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR2235/19

In the matter between:

SOUTH AFRICAN NATIONAL PARKS

Applicant

and

MORNE CROUSE

First Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Second Respondent

LAWRENCE NOWOSENETZ N.O.

Third Respondent

Heard: 10 March 2021

Delivered: 22 June 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 22 June 2021.

JUDGMENT

VAN AS, AJ

Introduction

[1] This is an application in terms of section 145 of the Labour Relations Act 66 of 1995 (“the LRA”) to review and set aside the arbitration award delivered by the Third Respondent on 26th August 2019 (“the Arbitration Award”).

[2] The First Respondent opposes the review application. The Second and Third Respondents abide the decision of this Court.

The material facts

[3] The First Respondent is the former Technical and Production Manager in the Eco Furniture Program (“the EFP”) at the Applicant.

[4] The EFP involves the harvesting of alien trees within the South African National Parks from which planks are produced and used to manufacture furniture such as school desks.

[5] During or about July 2016, Mr Sakkie van Niekerk (“Mr Van Niekerk”) [who is referred to as “Oom Sakkie” in the Arbitration Award] approached the Applicant and essentially proposed a mutually beneficial transaction or deal in terms of which he would be allowed to use logging or sawing machinery belonging to the Applicant (“the Machinery”) in order to harvest trees on his property.

[6] The Applicant would then receive 50% of this harvested wood (i.e. planks) which could then be used for the EFP.

[7] It is common cause that the management team of the Applicant, which included the First Respondent, did not follow the prescribed procedure before the Machinery was delivered to Mr Van Niekerk.

[8] The most important of these omissions was the failure to obtain permission from the Chief Financial Officer of the Applicant before loaning the Machinery to Mr Van Niekerk.

[9] The Applicant contended at the arbitration proceedings that Mr Van Niekerk failed to return certain of the Machinery which resulted in the Applicant instituting disciplinary proceedings against the First Respondent.

[10] The gravamen of this misconduct was that the First Respondent was grossly negligent in failing to obtain the requisite permission from the Chief Financial Officer of the Applicant and failing to take reasonable steps to ensure that there was compliance with the prescribed procedure for loaning equipment to third parties before allowing the machinery to be delivered to Mr Van Niekerk.

[11] The First Respondent was found guilty of these charges and dismissed from the employ of the Applicant.

[12] The First Respondent thereafter referred a dispute to the Second Respondent which was arbitrated before the Third Respondent.

[13] The arbitration proceedings commenced on 22 March 2019 and were finalised on 8 August 2019. The Third Respondent concluded that the First Respondent was not guilty of gross negligence but was guilty of negligence. The Third Respondent also concluded that the First Respondent’s dismissal was procedurally fair.

[14] The Third Respondent further concluded that the sanction of dismissal was too harsh and therefore unfair. The Third Respondent considered retrospective reinstatement to be a fair and appropriate remedy.

The grounds of review

[15] The Applicant essentially seeks to review and set aside the Arbitration Award on the following grounds:

15.1. The Third Respondent erred in finding that the First Respondent was not directly involved in facilitating the loan and delivery of the Machinery to Mr Van Niekerk and therefore further erred in finding that the First Respondent was not guilty of gross negligence (“the First Ground of Review”);

15.2. The Third Respondent acted unreasonably in finding that dismissal was too harsh a sanction and should instead have concluded that dismissal was a fair and appropriate sanction (“the Second Ground of Review”);

15.3. The Third Respondent erred in finding that retrospective reinstatement was a fair and appropriate remedy (“the Third Ground of Review”).

Evaluation of the merits

[16] It is now trite that a party wishing to review and set aside a CCMA arbitration award must persuade this Court that the conclusions

reached by the Commissioner in the arbitration award are conclusions which a reasonable decision-maker could not have reached on the evidence before the CCMA Commissioner during the arbitration proceedings.[1]

[17] It is apparent from the Arbitration Award that the Third Respondent placed much reliance on the First Respondent’s e-mail dated 5 July 2016 (“the E-mail”) in finding that the First Respondent’s role in the delivery and subsequent loss of Machinery constituted negligence and not gross negligence in the circumstances.[2]

[18] The E-mail referred to a meeting on 1 July 2016 at Groenkloof. It was during this meeting that the management team of the Applicant decided to loan the Equipment to Mr Van Niekerk.

[19] The Third Respondent concluded that the First Respondent, in his role as a Technical and Production Manager, should reasonably have realised that the Chief Financial Officer of the Applicant had to approve this arrangement but was not involved in “implementing the transfer of the machinery beyond his e-mail of 5 July 2016”.[3]

[20] In my view, this conclusion is a conclusion which a reasonable decision-maker could have reached on the evidence before the Third

Respondent. It is therefore not a reviewable conclusion.[4]

[21] Once it is accepted that the First Respondent played a limited role in loan the Equipment to Mr Van Niekerk, the appropriateness of dismissal as a sanction must, in my view, become questionable.

[22] It is apparent from the Arbitration Award[5] that the Third Respondent considered mitigating factors such as the First Respondent’s clean disciplinary record and involvement in disclosing other financial irregularities at the Applicant before concluding that dismissal was too harsh a sanction.

[23] The Third Respondent also took into account the fact that the Applicant did not lead evidence as to the irretrievable breakdown in the trust relationship between the parties.

[24] These factors are some of the factors which a CCMA Commissioner is required to take into account in determining a fair and appropriate

sanction.[6]

[25] In my view, the Third Respondent’s conclusion that dismissal was too harsh a sanction is also a conclusion which a reasonable

decision-maker could have reached on the evidence before the Third Respondent.[7]

[26] This conclusion is therefore also not a reviewable conclusion.

[27] Accordingly, I am of the view that the Third Respondent’s conclusion that the First Respondent’s dismissal was substantively unfair should not be set aside on review.

[28] The Third Respondent retrospectively reinstated the First Respondent. It is apparent from the transcript of the arbitration proceedings (“the Transcript”) that Mr Short, who appeared for the Applicant during the arbitration proceedings, advised the Third Respondent that the First Respondent was employed on a fixed term contract.

[29] During the course of the argument of the review application, Mr Short furnished this Court with a copy of this fixed term contract. Advocate Crouse, who appeared for the First Respondent, confirmed this fixed term contract of employment.

[30] It is apparent from the fixed term contract of employment that the First Respondent’s employment with the Applicant was to end on 31 March 2019. The Applicant dismissed the First Respondent on 9 November 2018, some (number) months before the expiry of his fixed term contract of employment.

[31] It is apparent from the Arbitration Award that the Third Respondent effectively awarded ten months’ backpay to the First Respondent.

[32] In my view, the Third Respondent exceeded his powers by retrospectively reinstating the First Respondent for a period which fell beyond the expiry of the fixed term contract of employment (i.e. for the period 1 April 2019 to 26 August 2019).

[33] The Third Respondent, by retrospectively reinstating the First Respondent for this period, effectively extended or renewed the fixed term contract of employment and, in my view, thereby exceeded his powers as a Commissioner.

[34] Whilst I am mindful of the fact that the Third Respondent has a wide discretion as to an appropriate remedy, I do not believe that this discretion includes extending or renewing a fixed term contract of employment.

[35] I therefore find that the Third Respondent exceeded his powers as a Commissioner by reinstating the First Respondent for a period beyond the period contemplated in the fixed term contract of employment.

Costs

[36] Since both parties have been partially successful, it would not be appropriate to make a costs order in this matter.

Order

[37] Accordingly, I make the following order:

1. The Arbitration Award is reviewed and set aside;

2. The Arbitration Award is substituted with an order that the Applicant pay compensation to the First Respondent in the sum of R215 000,00, being the equivalent of five (5) months’ salary, within ten (10) days of the date of delivery of this judgment;

3. There is no order as to costs.

__________________

M J VAN AS

Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant: Mr D Short

Instructed by:

Fairbridges Wertheim Becker Attorneys

On behalf of the First Respondent: Adv J Crouse

Instructed by:

Henk Kloppers Attorneys

[1] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) at para 110

[2] At paras 30-32

[3] Arbitration Award at para 32

[4] Sidumo’s case supra

[5] At para 38

[6] Fidelity Cash Management Services v CCMA and Others [2008] 3 BLLR 197 (LAC) at para 94

[7] Sidumo’s case supra