77 by 9ao9860



                                                     CASE NO. P47/98

In the matter between :
MS M Z N LALLIE N O                                          FIRST

WORKERS UNION (PPWAWU)                                SECOND

MR MNYAMEZELI GOGWANA                                THIRD

MR ANTHONY MNGQIBISA                                   FOURTH

MR NEVILLE HENDRICKS                                     FIFTH





(1) The applicant seeks an order reviewing and setting aside an arbitration
award handed down by the first respondent (“the Commissioner”) on 6
January 1998.MASERUMULE AJ
JUDGEMENTThe application is opposed by the second to fifth

(2) The Labour Appeal Court has decided that arbitration awards such as
the one handed down by the Commissioner are reviewable only in terms
of Section 145 of the Labour Relations Act No. 66 of 1995 (“the Act”),
52/98, unreported. In terms of section 182 of the Labour Relations Act,
66 of 1995 (“the Act”) , the Labour Court is bound by decisions of the
Labour Appeal Court. I am accordingly bound to apply the test set out

(3) The Commissioner arbitrated a dispute arising out of the dismissal of
the third to fifth respondents by the applicant. She found that the
dismissal of the third and fourth respondents was unfair because the
applicant did not apply discipline consistently. Both were reinstated,
without any compensation or retrospectivity. The Commissioner also
found the dismissal of the fifth respondent to be unfair because his use of
abuse language towards two of the applicant’s managers did not render
continuance of the employer-employee relationship intolerable. In her
view, the sanction was too harsh and he was reinstated, without
compensation or retrospectivity.

(4) The essence of the applicant’s attack on the Commissioner’s award is

that there is no reasonable connection between the evidentiary material
placed before the first respondent, reasonably assessed, and the relevant
legal principles, reasonably applied, all on the one hand, and the terms
of the arbitration award on the other.

     5)     In assessing whether or not the applicant’s contentions must
      be upheld, this court is obliged, in my view, to have regard to the
      admonition of the Labour Appeal Court in CAREPHONE, supra,
       to the following effect:
      6)       “ 36. In determining whether administrative action is
in terms of the reasons given for it, value judgments will have to
be made which will, almost inevitably, involve the consideration of
the ‘merits’ of the matter in some way or another. As long as the judge
determining this issue is aware that he or she enters the
merits not in order to substitute his or her own opinion on the
correctness thereof, but to determine whether the outcome is
JUDGEMENT rationally justiable, the process will be in order.”

(6) The above extract must also be understood in the context of the
Labour Appeal Court’s view that the word ‘justifiable’ as used in its
judgement is not to be equated with ‘justified’ or ‘correct’.

(7) It remains now to assess applicant’s contentions in the light of the
factual findings made by the Commissioner and the conclusions she
arrived at, having regard to the evidentiary material placed before her.


(8) The third to fifth respondents were dismissed following charges of
misconduct against them allegedly committed during a strike by
applicant’s employees on 27 May 1997. Although there is reference in

applicant’s papers that the strike in which its employees were engaged
was unprotected, the applicant, in its heads of argument and submissions
made during the hearing, has specifically abandoned reliance on the
status of the strike in assessing the third to fifth respondents misconduct.

(9) The third and fourth respondents were charged with having
manhandled casual employees whilst these casual employees were being
forcibly removed from the applicant’s premises during the aforesaid
strike. These two employees were dismissed because, according to the
applicant, their misconduct in physically handling the casual employees
is more serious than that of other employees who participated in
removing the casual employees from the applicant’s premises but who
did not physically mishandle them.

(10) The fifth respondent was dismissed because it is alleged that he used
foul and abusive language against two of the applicant’s managers.

 (11) The incident involving the third and fourth respondents occurred
on a separate occasion from that involving the fifth respondent. Separate
submissions were made in respect of these respondents and I accordingly
deal with them separately from the fifth respondent.

(12) The second respondent (“the union”) referred the dispute arising
out of the dismissal of the third to fifth respondents to arbitration. The
Commissioner found the dismissal of these respondents to have
been unfair and awarded them relief as set out above.

   (13) In her award, the Commissioner found that the third and fourth
respondents, together with some other 50 to 60 employees, marched

casual employees out of the applicant’s premises. She also found that the
employees so involved in marching out casual employees out of the
applicant premises were disciplined, but not dismissed and that one of
the employees so identified, and who had told a casual employee to leave
the applicant's premises, was suspended for 15 days as punishment for
his part in the incident. She also found that there was another employee
who had also physically mishandled a casual employee, but who could
not be identified either by reference to a video film of the events which
she viewed nor by one of the applicant's managers who witnessed the
(14) The Commissioner rejected the applicant's explanation for its
inability to identify the third employee who manhandled the casual
employee on two basis. Firstly, that since a video camera was used for the
purpose of being able to identify employees engaged in acts of
misconduct, the user ought to have captured the face of the third
employee and
JUDGEMENT failure to do so cannot be excused. Secondly, that the
failure by one of the applicant's managers to identify the third employee
cannot be excused. The Commissioner then concluded that the applicant's
"failure to observe the events of that day properly” could not be relied
upon to justify the dismissal of the two identified employees and the
consequent non-discipline of the third unidentified employee. In her
view, the above factual synopsis meant that the third and fourth
respondents were unfairly singled out for manhandling and forcibly
removing casual employees when another employee who had
committed the same offence was not disciplined. For this reason, she
concluded that their dismissal was unfair.

(15) The question is therefore, whether in the light of the above findings,
it can be said that the Commissioner’s conclusion concerning the fairness
of the dismissals stands to be vitiated on the basis that it is not
justifiable in the light of the evidentiary material available to her.

(16) In answering the above question, it is important to refer back to the
Labour Appeal Court admonition that the Labour Court must be careful
 not to substitute it’s own opinion on the correctness of a Commissioner’s
                            MASERUMULE AJ
decision for it’s own, “but to determine whether the outcome is rationally

(17) At this juncture, it is necessary to once again refer to the
applicant’s basis for attacking the Commissioner’s findings and
conclusions. The
applicant’s submission is that the Commissioner misapplied the legal
principles relating to inconsistency in the application of discipline. Its
contentions are that while it is true that other employees participated in
forcibly removing the casual employees from its premises, the third and
fourth respondents’ participation therein is more serious because they
physically pushed or pulled the casual employees, and such conduct
justifies the more drastic penalty against them.

(18) Properly assessed, the Commissioner's conclusion is twofold. The
one is that it is unfair to dismiss the third and fourth respondents because
other employees participated in the removal of casual employees and
were not dismissed. Secondly, a third employee who also mishandled the
employee was not dismissed because due to its own fault, the applicant
was unable to identify this employee.

   (19)     The evidentiary matter placed before her in summary is the
   following :

19.1 Approximately 50 - 60 striking employees marched casual
employees out of the applicant's premises;

19.2 The third and fourth respondents manhandled the casual
employees. A third unidentified employee also manhandled a casual
19.3 All the 50 - 60 employees associated themselves with the third and
fourth respondents by marching the casual employees to the gate after
being manhandled by the third and fourth respondents;

19.4 The applicant was unable to identify the third employee who
manhandled a casual employee and;
19.5 Other employees involved in marching casuals off the
premises were disciplined but not dismissed.

(20) It is worth noting that in CAREPHONE, supra, the Labour Appeal
Court formulated the applicable text by reference to "material properly
available" to the decision maker in assessing whether the conclusion
arrived at has a rational objective basis. What is "material properly
available" to a decision maker in the Commissioner's position? It must,
JUDGEMENT in my opinion, refer to all evidence properly placed
before the Commissioner by way of documents, visual and audio
recordings, viva voce evidence given by properly sworn-in witnesses and
admissions made by the parties, and such other evidence as may have
been properly tendered and properly received.

(21) In my view, the Commissioner’s reasoning in this matter is flawed
in two respects. The applicant singled out the third and fourth
respondents for more severe punishment because in its opinion, their
conduct went one step further than that of other employees. It is because
they made physical contact with the casual employees that they were
more harshly treated.

(22) I also believe that the reasons given by the Commissioner fore
rejecting the applicant’s explanation for not disciplining and dismissing
the third employee who pushed one of the casual employees are
misdirected. The applicant did what it could to be able to identify
perpetrators of acts of misconduct and its inability to identify the third
employee was beyond its control. I had the opportunity to view the video
recording of the events and it is simply impossible to identify the third
perpetrator.MASERUMULE AJ

(23) The above criticism of the Commissioner’s reasoning,
notwithstanding , I am satisfied that an interference with her award is

(24) The misapplication of the relevant legal principles is not in itself

sufficient to justify an interference with an arbitration award. In this
regard, the remarks of Tip AJ in STANDARD BANK OF SOUTH
627J-628B are apposite :
“ [24] Where a Commissioner sitting as arbitrator has
misconstrued oral or documentary evidence, or has ignored or
misapplied relevant legal principles, to an extent that is
inappropriate or unreasonable, then such Commissioner has
failed in the task assigned under the Act”. (own underlining)

(25) The applicability of the above quoted passage arises from the fact
that the relevant process here is review and not appeal. The justness or
correctness of an award is not the subject matter of the investigation by
the Labour Court. For this reason, where a Commissioner has misapplied
legal principles as is the case here , interference is only warranted if the
misapplication is to an extent that is inappropriate or unreasonable.

(26) The evidence available to the Commissioner in this matter is such
that had she correctly applied the relevant legal principles, the result
would have been the same. To put it differently, the extent to which she
has misapplied legal principles is neither unreasonable nor inappropriate
as a proper assessment of the evidentiary material and the correct
application of the relevant legal principle would lead to the same
conclusion to which she came, namely, that the dismissal of the third and
fourth respondents was unfair.

(27) It follows that although the Commissioner misapplied legal
principles relating to inconsistency, it was not to an extent that is
inappropriate or unreasonable nor did it result in an unjustifiable award.

(28) The applicant’s contentions to the contrary are in my view,
misconceived. It is one thing to treat pronounced misconduct more
harshly, but quite another to say that where other identifiable employees
associated themselves with and made common cause with others in
unlawful conduct aimed at obtaining the same objective , their conduct
is less reprehensible because they did not commit exactly the same acts of
misconduct as the identifiable ones. The intention of all the 50 -60

employees involved as appears from the video cassette, was to remove
the casual employees from the applicant’s premises. That the applicant
also understood it in the same was is borne out by allegations it made in
an urgent application for an interdict during the course of the above

(29) In its founding affidavit in the urgent application, the applicant
alleged that the 50 - 60 employees referred to herein “en masse drove the
casual employees” out of the applicant’s premises and that this was done
by “either physically frog-marching them off the premises and by
threatening them with violence or physically chasing them from the
premises while brandishing sticks”.

(30) The material placed before the Commissioner, establishes that the
other 50 to 60 identifiable employees associated themselves with and in
fact facilitated the conduct of the third and fourth respondents in
removing the casual employees from the applicant’s premises. The
applicant would have been within its rights to dismiss all the employees
who made common cause with the third and fourth respondents in
removing casual employees from the applicant’s premises and should in
fact have done MASERUMULE AJ
JUDGEMENTso. It chose not to but dismissed the two employees only.
Its conduct resulted in inconsistency as the rest of the employees, who
were no less guilty, received a reprieve.

(31) I accordingly find that in relation to the Commissioner’s award
about the unfairness of the third and fourth respondents’ dismissal, no
case has been made to justify this court’s interference with her award.
The application to review and set aside her award in this respect is hereby

The fifth respondent was dismissed for using foul and abusive language
towards managers. The Commissioner found that the fifth respondent was
guilty of this charge. She concluded that the employer had not led
evidence to satisfy her that the misconduct was of such a nature that it
rendered a continued employment relationship intolerable. She also
referred to the fact that she had taken into account items 3, 4 and 5 of
Schedule 8 of the Act. She accordingly found that the sanction was too
harsh and reinstated the employee without compensation or
retrospectivity.MASERUMULE AJ

(33) I can see no basis for interfering with the Commissioner’s award in
respect of the fifth respondent. She has exercised a value judgement on the
fifth respondent’s conduct. She found it to have been such that serious as it
was, it did not call for the ultimate sanction of dismissal. I do not believe
that she exceeded her powers in concluding that dismissal was too harsh. In
the result, the applicant has failed to show that her award is not justifiable in
the light of the reasons she gives for it. The application to review and set
aside the first respondent’s award in so far as it relates to the fifth respondent
must accordingly fail.

(34) Mr D.O. Pretorious, who appeared on behalf of the applicant, did
not press for costs, irrespective of the outcome of the application. Mr Van
Voore, who appeared for second to fifth respondents, asked for costs if
he won and for no costs if he lost. This submission is, to say the least, an
untenable one.

(35) The parties have an ongoing relationship. The application was not
frivolous. In the circumstances, I do not believe that costs should follow
the result.

(36) The order I make is as follows :MASERUMULE AJ

(a)   The application is dismissed;

(b)   There is no order as to costs.
For the applicant : Attorney D. O. Pretorious of Fluxman
Rabinowitz Raphaely             Weiner

For the second to fifth respondents : Attorney R. Van Voore of
Cheadle                                          Thompson and

Date of hearing :     10 September 1998

Date of judgement : 30 September 1998


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