Coca-Cola Shanduka Beverages SA (Pty) Ltd v Mgiba and Others (JR2791/08) [2014] ZALCJHB 362 (18 September 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 2791/08

In the matter between:

COCA-COLA SHANDUKA BEVERAGESSA (PTY) LTD APPLICANT

and

VINCENT MGIBA

FIRST RESPONDENT

NOMUSA MBHELE N.O

SECOND RESPONDENT

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

THIRD RESPONDENT

Date of Judgment: 18 September 2014

JUDGMENT: LEAVE TO APPEAL

Nkutha AJ

Introduction

1. This is an application by the applicant for leave to appeal against the whole of my judgment handed down on 19 June 2014. This was after I had dismissed the applicant’s review application with costs.

2. The applicant has raised the following core grounds for leave to appeal, inter alia:

“1.1 She misconstrued evidence which was adduced before her. In that, as it will be demonstrated that she arrived at the decision which are not supported by any evidence before her by the parties.

1.2 Her ladyship, Nkutha J, concluded that certain facts which were materially contested, are common cause, when in fact, the record demonstrated that those issues identified as common cause are identified as common cause by her ladyship were in fact materially contested by the parties.

1.3 Her ladyship, concludes that there were concessions made during argument by counsel appearing on behalf of the applicant, when in fact no such concessions, as evident from the record were ever made to justify conclusion.

1.4 Her ladyship, despite the founding affidavit ventilating grounds of appeal as envisaged in section 145 of the labour relations act, arrived at a conclusion that the applicant sought to appeal the decision of the second respondent and not to review same. The finding is not borne out of the allegations contained in applicant’s founding affidavit herein the grounds for review are ventilated. This, in turn, led to her ladyship, applying an incorrect legal test and relying on legal principles and/or authorities, not applicable on the facts and circumstances of this case.”

3. In terms of s166(1) of the Labour Relations Act 66 of 1995 [“the Act”] a party wishing to appeal to the Labour Appeal Court against a judgment of the Labour Court has to obtain leave to do so from the Labour Court. The test to apply when considering whether or not to grant leave to appeal is whether there

is a reasonable prospect that another Court may come to a different conclusion to that of the Labour Court.

First and second grounds: Her ladyship misconstrued evidence before her and concluded that certain facts were common cause

4. These grounds of appeal turn on issues traversed during the arbitration hearing and sufficiently addressed in the second respondent’s arbitration award. As stated in my judgement, the crux of the applicant’s case is that the first respondent, by supporting his business partner, E-Chemie, in litigating against it, committed a gross misconduct because of conflict of interest and the detrimental effect to its reputation.

5. It is apparent from the record and reinterred in the in this application that there was an empowerment initiative introduced by the applicant that were so advanced that parties even exchanged draft agreements but never implemented. As to whether actual agreements had been concluded or whether there were grounds for first respondent and its business partner, E-Chemie, to institute legal proceedings against the applicant, were issues properly canvassed during arbitration. As such, the second respondent correctly found in the impugned arbitration award that the above issues fell outside of the purview of employment relationships and that, in the absence of a clear procedure to deal with it internally, the first respondent was entitled to deal with that matter externally as he did.

6. The applicant’s grounds for appeal in this regard are obviously fraught with conflict of internecine nature. On the one hand, it is submitted that I ought to have found that there was no agreement between the applicant and the third respondent and E-Chemie. Whilst on the other hand, I am accused of not dealing with the applicant’s reasons for “no longer restructuring its operations” and not finding that the first respondent’s conduct in disregarding same was mala fide.

7. The litigation that led to the dismissal of the applicant is the correct process for parties to ventilate these issues, which are clearly of contractual nature.

8. The findings in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others[1]are apposite in the matter at hand. The court stated the following:

“[15] The gross irregularity is not a self-standing ground insulated from or standing independent of the Sidumo test. That being the case, it serves no purpose for the reviewing court to consider and analyse every issue raised at the arbitration and regard failure by the arbitrator to consider all or some of the issues albeit material as rendering the award liable to be set aside on the grounds of process-related review.

[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.”

9. On the issue of remedy of reinstatement, the applicant seriously misconstrued the applicable legal principle in this regard. In Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others,[2] the Constitutional Court endorsed the primacy of reinstatement as a remedy and stated that:

“The ordinary meaning of the word “reinstate” is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal. As the language of section 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator. The only limitation in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal. The court or arbitrator may thus decide the date from which the reinstatement will run, but may not order reinstatement from a date earlier than the date of dismissal. The ordinary meaning of the word “reinstate” means that the reinstatement will not run a date from after the arbitration award. Ordinarily then, if a Commissioner of the CCMA order the reinstatement of an employee that reinstatement will operate from the date of the award of the CCMA, unless the Commissioner decides to render the reinstatement retrospective. The fact that the dismissed employee has been without income during the period since his or her dismissal must, among other things, be taken into account in the exercise of the discretion, given that the employee’s having been without income for that period was a direct result of the employer’s conduct in dismissing him or her unfairly.”

10. The evidence on whether “it was not reasonably practicable for the employer to reinstate or re-employ the employee” was accordingly dealt with by the second respondent and held that the relationship of trust had not been affected.

11. In the premises, the general rule which gives primacy to reinstatement as the preferred remedy for substantively unfair dismissal must prevail.

Ground three: Her ladyship, concludes that there were concessions made during argument by counsel appearing on behalf of the applicant

12. There is no merit in persisting with this ground in light of the applicant’s submission that it had proffered a reasonable explanation for not continuing with the intended restructuring. Once the said explanation was rejected by the first respondent, it was open to him and E-Chemie to seek recourse in court. The aborted “the empowerment deals” were purely contractual and more so since, in this particular instance, a third party was also involved. Accordingly, a grievance procedure could not have been an appropriate process to deal with the dispute.

13. It is clear from the record that the first respondent was charged immediately after the applicant had been served with a letter of demand and before launching the legal proceedings. In other words, the applicant had been given an opportunity to amicable resolve the dispute before litigation.

14. Litigation is indeed adversarial as the legal proceedings are all about conflicting parties or interests. However, the test for a charge of bringing the company in disrepute was dealt with in Timothy v Nampak Corrugated Containers (Pty) Ltd.[3] Even though the facts are distinguishable, Davis JA stated the following:

“A reasonable decision maker would have engaged in an objective evaluation as to whether the employee brought the company into disrepute. An objective test enjoins an examination, in all the circumstances, of the nature of the conduct, evaluates the turpitude and seriousness thereof and then makes an evaluation as to whether the charges can be sustained.”

15. The second respondent accordingly deliberated on the evidence before her and came to a rational decision which is well within the scope reasonableness.

Ground four: Appeal or review

16. The applicant does not make out any persuasive submissions why it is of the view that I erred in this regard, especially in the context of the principles clearly articulated in Herholdt v Nedbank Ltd[4] where the court stated the following:

“[13] The distinction between review and appeal, which the Constitutional Court stressed is to be preserved, is therefore clearer in the case of the Sidumo test. And while the evidence must necessarily be scrutinised to determine whether the outcome was reasonable, the reviewing court must always be alert to remind itself that it must avoid 'judicial overzealousness in setting aside administrative decisions that do not coincide with the judge's own opinions'. The LAC subsequently stressed that the test ‘is a stringent [one] that will ensure that … awards are not lightly interfered with’ and that its emphasis is on the result of the case rather than the reasons for arriving at that result.” [Foote notes excluded]

The Court further stated that:

“[25] In summary, the position regarding the review of CCMA awards is this: 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.”

17. I have carefully considered the grounds for leave to appeal, the applicant’s submissions and my judgment and I am not persuaded that there are reasonable prospects that another court may come to a different conclusion to that reached by me in my judgment.

18. In the premises, the application for leave to appeal is dismissed with no order as to costs.

Acting Judge of the Labour Court of South Africa

[1] (2014) 35 ILJ 943 (LAC).

[2] [2008] 12 BLLR 1129 (CC) at para 36.

[3] [2010] 8 BLLR 830 (LAC) at page 833 F-H.

[4] [2013] 11 BLLR 1074 (SCA) at para 13.