Volsec Security SA (PTY) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 2013/2020) [2022] ZALCJHB 305 (3 November 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2013/2020

In the matter between:

VOLSEC SECURITY SA (PTY) LTD

Applicant

And

COMMISSION FOR

CONCILIATION MEDIATION

AND

ARBITRATION

First Respondent

SACSAAWU OBO RAMPEDI, MICHAEL &

4

OTHERS

Second Respondent

COMMISSIONER EVA NGOBENI N.O.

Third Respondent

Heard: 01 November 2022

Delivered: 03 November 2022

(This judgement was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 03 November 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks to review and set aside an arbitration award issued by the third respondent (the arbitrator). In her award, the arbitrator held that the individual respondents had been unfairly dismissed and ordered their reinstatement with retrospective effect.

[2] The material facts are recorded in the award under review. For present purposes, if need be recorded only that the individual respondents were dismissed after being charged with insolence, in the form of a refusal to transfer from one site to another without an acceptable reason. The individual respondents had been employed on what was referred to as the Silver Mall site. They were transferred to the PPC site in Laudium. After notice of the transfer, the individual respondents were sent on a dog handling training course. They were expected thereafter to report at the Hillcrest Boulevard where the portfolio manager was to transport them to the PPC site. It is not in dispute that the individual respondents refused to report at Hillcrest and that they were dismissed in consequence.

[3] The arbitrator’s reasoning is apparent from the following paragraphs in her award:

‘23. It is common cause that the applicant was issued with an instruction of transfer to PPC from 16 September 2019. It is for the common cause that the applicant refused to comply and cited various reasons for noncompliance, being that they were not consulted, there was no reason given for the transfer, they had no money for transport and also that there was no transport made available by the respondent for ease of commuting to and from the new site.

24. A letter of transfer is sent to the applicant indicated that they are transferred to PPC Laudium and that such transfer is as a result of operational requirements, subject to reasonable notice given to the employees. It was further stated within the letter that a refusal by the employee to such transfer without an acceptable reason, shall be a breach of contract. It is accepted that the notice to transfer was issued within a reasonable time period.

25. It is evident from the evidence that as much as the applicant were issued with transfer letters, there was no consultation or investigation conducted by the respondent to establish the feasibility of the applicant traveling to site. If such was done, I’m certain the respondent could have explored other sites nearer to their place of residence. It was not upon the applicant to approach the respondents on issues pertaining to transport and/or transport allowance as envisaged in the sectoral determination of the security industry.

26. The respondent’s witness, harness, conceded under cross-examination that given the distance for which the applicant was to travel, it was unreasonable to have placed them at PPC. He went further to state that if such was brought to his attention, he could have reasonably accommodated the applicant. The applicant testified that such was brought to the attention of Patrick and Peter was also aware. More so, Peter went further to inform them that he was not willing to discuss the issue of transport with them, it’s either they report at PPC or stay home. This version was not rebutted by the respondent.

27. In justifying the transfer than the distance to be traveled daily by the applicant to site; the respondent’s evidence was that the applicants were not required to go to PPC, but were to be transported on a daily basis from Hillcrest. According to the respondent’s witnesses, the applicants were required only to report to Hillcrest, thereafter be transported to PPC by the respondent.

28. The respondent did not dispute the version by the applicant that the arrangement to Hillcrest was for them to be shown the site, thereafter, they were to do self-posting. When regard is had to the two (2) are of commuting from Hillcrest to PPC, notwithstanding the fact that there was no travel allowance offered as per the sectoral determination in the minutes it will take the applicant to travel from their place of residence (30km away) to Hillcrest, I find instruction given to the applicant to be unreasonable

29. The respondent’s evidence was that the applicants site was still available at the time of the purported transfer; and there was no justifiable reason given why the applicants were to be transferred to the new site. Much as it is its industry norm to transfer employees from one site to another; such should be within reasonable distance. A distance of +180 km daily, using a taxi is not feasible.

30. Having said this, I find that the respondent failed to discharge the onus on the balance of probability that dismissal was substantively fair…’

[4] The applicant’s grounds for review are that in her analysis of the evidence, the arbitrator failed to consider the full body of evidence before her, failed to take into account pertinent evidence and came to a conclusion that falls outside of a band of decisions to which a reasonable decision-maker could come on the available evidence. During argument, the issue that crystallized was the reasonableness of the arbitrator’s finding, on the evidence, that the instruction given to the individual respondents to transfer to the PPC Laudium site on the conditions that applied, was unreasonable.

[5] The test to be applied in review applications is clear. This court may intervene if and only if the applicant establishes that the decision to which the arbitrator came was so unreasonable that no reasonable decision-maker could come to it. In a matter such as the present, where the applicant relies on what are contended to be reviewable irregularities in the assessment of the evidence, the court must be cautious to ensure that the line between an appeal and a review is not crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC)), the Labour Appeal Court noted that a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process related irregularity sufficient to set aside the award. When an arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21).

[6] To summarise: the threshold to be met by an applicant in a review application is one of reasonableness. The court is required to apply a two-stage test. The first stage is to determine the existence or otherwise of any error or irregularity on the part of the arbitrator. If the applicant is unable to establish any error or irregularity, that is the end of the enquiry. In this regard, it is not the function of a review court to engage in a nit-picking exercise; the

focus is on whether the arbitrator appreciated the nature of the enquiry and afforded the parties a fair hearing. When an error or irregularity is established, the court must proceed to the second stage of a determination of the reasonableness of the result. Put another way, the award must be sustained if, by reference to the record and regardless of any error or irregularity on the part of the arbitrator, the award is one which a reasonable decision-maker could reach. This approach distinguishes a review from an appeal, the latter being a remedy that the legislature specifically denied parties aggrieved by the outcome of arbitration proceedings under the LRA.

[7] The terms of the award reveal a number of instances where the arbitrator reached conclusions contrary to the evidence itself before her. One of the conclusions reached by the arbitrator is that the applicant’s witness Hannes Coetzee had testified that the instruction to report to the PPC site was not a reasonable instruction. Further, she concludes that the instruction that the individual respondents had failed to obey was an instruction to report to PPC Laudium. Further, while Coetzee conceded in cross-examination that there had been no consultation with the individual respondents, the undisputed evidence was that the letters of transfer had been discussed with the individual respondents and that they had failed to lodge any grievance or dispute after receipt of the letters. At the time, or during the period of training that they underwent, it was only at the time that the individual respondents were required to report at the new site that any grievance concerning the transfer became apparent. Further, the arbitrator failed to take into account the provisions of the applicable sectoral determination insofar as it regulates transfers. The determination provides for the transfer of employees, subject to the condition that a security officer transferred to his site in excess of 60 km away from the deployment of the security officer at the time of the transfer attracts payment of an allowance. The evidence was that the new site was not more than 60 km from the individual respondents’ placement at Silver Mall.

[8] All of these material errors of fact, viewed cumulatively, have the consequence that the arbitrator came to a decision that is not supported by the evidence itself before her and which renders the outcome unreasonable. As the LAC observed in Head of the Dept of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC), if but for Israel or irregularity a different outcome would have resulted, it will ask hypothesized be material to the determination of the dispute, and the material error of this order would point to at least a prima facie unreasonable result. Put another way, the distorting effect of the cumulative errors made by the arbitrator is such that it was material. In relation to the second stage of the inquiry, there is nothing in the record that serves to sustain the outcome of the proceedings, even if the arbitrator’s misdirections were to be ignored. The individual respondents were given a reasonable instruction to transfer from one site to another. They refused to comply with that instruction, in circumstances where their insolence was both serious and wilful. The arbitrator’s award thus fails to meet the threshold of reasonableness and stands to be reviewed and set aside.

[9] The court has a discretion to remit the matter for rehearing, or to substitute its decision for that of the arbitrator. The latter remedy is ordinarily granted when the full record of the proceedings under review is available, and when the court is in as good a position as any arbitrator might be to make a decision. The present case falls

into that category. There is no reason not to substitute the arbitrator’s finding with one to the effect that the dismissal

of the individual respondents was fair. Insolence is an act of serious misconduct, particularly in an industry such as the one in which the individual respondents were engaged.

[10] Finally, for the purposes of section 162 of the LRA, the requirements of the law and fairness are best met by each party bearing its own costs.

I make the following order:

1. The award issued by the third respondent is reviewed and set aside.

2. The award is substituted by the following:

‘The applicants’ dismissal was substantively and procedurally fair.’

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

F Storm

Instructed by:

Len Dekker Attorneys

For the respondents: M. G Mello

Instructed by:

Cedric Thoka Attorneys Inc