Interstate Bus Lines (Pty) Ltd v Phakwe (JA27/15) [2016] ZALAC 58 (22 November 2016) per Tlaletsi AJP (Ndlovu and Sutherland JJA concurring)

The LAC disallowed the employer’s appeal and upheld the judgment of Steenkamp J who reviewed and declined to set aside an award.  The test of reasonableness was applied and it was held the award fell within a range of reasonable responses. The parties agreed that the arbiter had to determine the fairness of the reason for dismissal based only on written submissions and a joint bundle of documents.  The arbiter did consider mitigating factors and was alive to the employee’s misconduct.  For that reason reinstatement was without back-pay.  The arbiter correctly balanced the interests of the parties.

Excerpts without footnotes

[1]        This is an appeal against the whole of the judgment of the Labour Court (Steenkamp J) which dismissed the appellant’s application to review and set aside an arbitration award dated 14 December 2010 issued by the third respondent (the arbitrator) acting under the auspices of South African Road Passenger Bargaining Council (the Bargaining council).  The award related to an alleged unfair dismissal dispute referred to the Bargaining council by the first respondent (the employee) against his erstwhile employer, the appellant.

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[10]     The court a quo was satisfied that the arbitrator followed a process that was agreed upon by both parties, properly considered all the submissions made before him in light of relevant case law, applied his sense of fairness to the issue before him and dealt with the substantial merits of the dispute.  Significantly, the court a quo found that the arbitrator imposed a heavy penalty on the employee in that the employee would in addition to a final written warning forgo a substantial back pay of almost a year.  The review application was nevertheless dismissed on the basis that the award fell within a range of reasonable outcomes.

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[16]     It is significant to note that the parties’ closing statements refer to the evidence that was tendered at the disciplinary inquiry as well as the photographs of the scene.  The record of the proceedings of the disciplinary inquiry is part of the appeal record.  It is not a direct transcript of the proceedings but notes made by the chairperson relating to the evidence and questions put to the witnesses who testified.  The note further records the address by the parties’ representatives, the chairpersons’ reasons and verdict, address on sanction and the pronouncement of the sanction by the chairperson.

[17]     In my view, it is evident that implicit in the parties’ agreement that no evidence be tendered during the arbitration proceedings and that only closing arguments be submitted was that the record of the disciplinary inquiry would be part and parcel of the arbitration and that it would supply the factual basis upon which the fairness of the sanction is to be assessed.  It is for this reason that the arbitrator made reference to some factual background, which could only be extrapolated from the record of the disciplinary inquiry that must have been presented to him as part of the bundle.

Although the record of the disciplinary inquiry is not a model of a perfect record of the proceedings, it does however provide key elements of the evidence tendered as well as the submissions by the parties.  Further, most of the evidence is common cause and this appeal is limited to sanction only.  What would therefore be more relevant in addition to the common cause factual background would be the evidence on aggravating and/ or mitigating circumstances as well as the reasons of the chairperson of the inquiry on the sanction he imposed.  All these factors are found on the record as it stands.

[18]     Sending the matter back for arbitration de novo would not only go against the choice of the parties but would also be prejudicial to them.  The same witnesses who testified will have to be recalled to repeat what they have already testified about.  There is no guarantee that they will all be available to testify given the time elapsed since the dispute arose.  Furthermore, sending the matter back to the Bargaining council for arbitration de novo would defeat the purpose of expeditious adjudication of labour disputes.  In my view, it would be in the interests of justice and fairness that the matter be finalised on the record as it stands.

[19]     The circumstances of this case are by far distinguishable from the circumstances in the cases referred to us by Mr SnymanIn Arends and Others v Local Government Bargaining Council and Others, the parties had agreed not to lead any evidence and simply presented documents and made oral and written arguments.  There was no pre-arbitration minute nor did the parties provide the arbitrator with any agreed set of facts.  This Court correctly found that the absence of any evidence; the absence of a stated case; and the manner of its presentation makes it impossible for the court on appeal to determine whether the dispute is indeed one about the implementation of a collective agreement and how it should be resolved.

There was absolutely no evidential material for the arbitrator and ultimately the Labour Court to work on in resolving the dispute.  The ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO and Others case (2013) 34 ILJ 2347 (LC) had to do with the conduct of the arbitrator in the conduct of the arbitration proceedings and not necessarily a case presented without evidence being tendered.

[20]     The proper test to be applied in a review of an arbitration award on sanction is whether the decision of the arbitrator about the fairness of the sanction imposed by the employer is a decision that a reasonable arbitrator could not reach.[1]

It is the call of the arbitrator and not that of the Labour Court to assess the fairness of the sanction of the employer.  An arbitrator is tasked to objectively, impartially and fairly determine whether a sanction of dismissal in the circumstances of the material placed before her/him is fair. . . . .

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[20]     In terms of the Code of Good Practice: Dismissal, an employer must in addition to the gravity of the misconduct consider factors such as the employee’s circumstances including the length of service, previous disciplinary record and personal circumstances, the nature of the job and the circumstances of the infringement itself.  In terms of article 5, employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.

[21]     In this case, the arbitrator followed a process that was agreed to by the parties.  It is, therefore, unfair to accuse him of failing to have had regard to the nature of the misconduct, the complete breakdown in the trust relationship, the lack of remorse by the employee and prejudice to the appellant.

The arbitrator was alive to the nature and seriousness of the misconduct hence his remark that the actions of the employee cannot be condoned and punished him by not awarding him emoluments that would have been due to him from the date of dismissal to the date of reinstatement.  What the arbitrator effectively did was to direct that the employee be re-employed to his previous position with a final written warning.  His other entitlements and rights barring back pay would remain intact as if he had not been dismissed.

[22]     The arbitrator’s approach of the need to balance the interests of the parties in assessing the fairness of the sanction imposed by the employer was in my view the correct approach under the circumstances.  The balancing of the interests of the parties to the dispute is what the arbitrator is enjoined to do in terms of the Code of Good Practice on dismissals for misconduct and the dicta of this Court and the Constitutional Court referred to above. . . . .

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[23]     The appellant did not lead any evidence to suggest that the trust relationship between the appellant and the employee had been destroyed as a result of the employee’s conduct.  It is, of course, acceptable that the breakdown of trust may be inferred from the nature and seriousness of the misconduct, the conduct of the employee after the misconduct and from any other factors justifying such an inference.  However, there exists, in this case, no such circumstances justifying such a conclusion.

The submissions in the Closing Argument is not evidence from which it can be justifiably inferred that the trust relationship had been broken.  On the contrary, the arbitrator found, inter alia, that the actions of the employee were not directly intended against the appellant but against the security officer without realising the consequences of his actions; that the employee had a clean record and did not pose any threat or further danger to the appellant.

Added to these factors, is that it took the appellant almost a month to charge the employee for the misconduct.  In that period, the employee continued to perform his normal duties.  There is no evidence placed on record to suggest that he reoffended or that the trust relationship proved intolerable.