Dorrainn Bailiff Investments (Pty) Ltd v CCMA (JR86/2011, JA8/2015) [2016] ZALAC 20 (26 May 2016) per CJ Musi JA [Waglay JP and Murphy AJA concurring]

The Labour Appeal Court (LAC) found that the reason for the dismissal was valid and fair and allowed the employer’s appeal, overturned the judgment of Manchu AJ in the Labour Court and set aside the arbitral award.  Rather surprisingly, and after quoting from Sidumo, (5 October 2007) the LAC held that:

“It is now trite that the task of a Commissioner is to objectively, impartially and fairly determine whether a dismissal is fair.  He/she has no power to determine afresh what he/she would do but simply to decide whether what the employer did, given the totality of the facts and circumstances, was fair”. [Emphasis added]

Comment:

This ‘restatement’ of the ‘Sidumo test’ seems remarkably similar to the test as formulated by Supreme Court of Appeal Justice Edwin Cameron, as he then was, in Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA [2006] 11 BLLR 1021 (SCA) where the following passage appears in the Editor’s Summary:

“The Code requires commissioners to consider whether dismissal was “an” appropriate sanction, not “the” appropriate sanction.  Further, the benchmark is the “appropriateness” of the sanction, which implies a range of permissible responses.  The further requirement that dismissal should be restricted to cases in which the employment relationship is rendered “intolerable” recognises a measure of subjectivity on the part of the employer.  However, the employer is required to prove that its perception is reasonable.

The Code is so drafted because it recognises the inherent malleability of the concept of fairness.  Commissioners must recognise that there are degrees of fairness and that fairness depends on the circumstances, and must exercise great caution when evaluating the fairness of dismissals.  The mere fact that a commissioner might prefer a different sanction is no basis for interference.  A commissioner need not be persuaded that dismissal is the only fair sanction; all the employer need establish is that it is fair.  This approach would have the effect of stemming the flood of cases which the LAC understandably fears”.

Warnings

The LAC judgment is also important because it stresses the issue of warnings and that generally speaking they are a matter to be regulated by employers.  See the excerpts for further details.

LAC summary:

‘Review of arbitration award – employee on final written warnings dismissed for gross misconduct – commissioner finding that sanction of dismissal unappropriated [sic] and compensated employee – Appeal – commissioner failing to have regard to the cumulative effect of previous warning which employer stated would be taken into account for future transgression – commissioner duties are to determine the fairness of the sanction and not to impose a sanction afresh – commissioner imposing a sanction afresh thereby ignoring pertinently relevant facts that were before him.  Appeal upheld – Labour Court’s judgment set aside – dismissal of the employee substantively and procedurally fair.”

Excerpts without footnotes but with links

[10]      It is now trite that the task of a Commissioner is to objectively, impartially and fairly determine whether a dismissal is fair.  He/she has no power to determine afresh what he/she would do but simply to decide whether what the employer did, given the totality of the facts and circumstances, was fair.  In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others, it was said that:

‘In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances.   He or she will necessarily take into account the importance of the rule that had been breached.   The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal…’

. . . .

[16]      The appellant kept all the records of the previous transgressions and it made the third respondent aware that those records would be considered if he were to be found guilty of misconduct in future.  It is clear that the appellant kept and preserved the previous transgressions for future use.  It took lapsed warnings into account when deciding on a penalty for later misconduct.  In Shoprite Checkers v Ramdaw,  Zondo JP, as he then was, said the following:

‘In our law there is no statutory provision that deals with what the duration of a disciplinary warning is, nor is there a statutory provision that deals with what the effect is in law of the lapsing of a disciplinary warning.   An employer and an employee may deal with these matters in their contract of employment.  ….  These matters may also be governed by an established practice in a particular workplace.  Depending on what the contract of employment between the parties, or, the applicable collective agreement, provides or what the established practice is in a particular workplace, the fact that an employee’s previous warning has lapsed or expired may well mean in a particular workplace that such employee must be treated as having a clean record when he is next found guilty of misconduct.’

[17]      More importantly, for purposes of this case, it has been said that:

It is for the employer, if he wishes to rely on an employee’s previous disciplinary record to prove which regime applies in the particular workplace.’

[18]      In this matter, the last final written warning makes plain which regime applied in this workplace.  The third respondent was told in no uncertain terms that his entire disciplinary record would be used against him.

[19]      The Commissioner did not give proper weight to the previous transgressions.  He referred to the last final warning and said nothing about the first and second final warnings.  He did not have regard to the total picture when it comes to the disciplinary record of the third respondent.  It is clear that he limited his enquiry and reasons to “the valid final warning on record” in the process disregarding the other final warnings.  In light of the clear indication to the third respondent during the last final warning that all previous transgressions would in future be considered, the Commissioner committed an irregularity by not considering those.

[20]      There is a separate but allied serious irregularity that the Commissioner committed.  The third respondent categorically denied that he shouted or swore at Bailiff.  The Commissioner however found that

“I am compelled to consider the fact that the employer’s unfair and unlawful behaviour of withholding a month’s salary from the appellant caused him severe financial duress (sic) and embarrassment and triggered his unacceptable conduct.”

The Commissioner conjured up a reason for the third respondent’s conduct without a factual basis therefor.  If the third respondent’s financial position caused him to react in the manner that he did, one would have expected him to proffer such explanation and not to deny that he committed the misconduct charged.  It is, in my view, irregular for a Commissioner to decide a matter based on speculation and exalt such speculation to immutable fact in order to achieve a desired outcome.  The third respondent did not challenge the initial decision not to pay him for July.  He had sufficient time to do so between the end of July and 4 August 2010.

[21]      The task of the Commissioner, as stated above, was to determine whether the sanction was fair and not to impose a sanction afresh.  The Commissioner seems to have decided to impose a sanction afresh and to ignore pertinently relevant facts that were before him.  He irregularly used presumptive reasons as justification for proven yet unexplained misconduct. [Emphasis added]

[22]      The evidence before the Commissioner clearly showed that the appellant was very tolerant because final warnings were followed by final warnings.  The effect of the appellant’s leniency was unfortunately to cause the third respondent to continue undeterred on his path to self-destruction.  The only thing that changed was his continuous disregard for workplace rules and the level of contempt that he had for his employer.  His defence was based on a fabrication that was conceived in order to cast his employer as a liar.

He deliberately lied when he testified that he signed the last final written warning because his employer coerced him, on pain of dismissal, to do so.  The Commissioner allowed his maudlin sympathy for the third respondent to distract him from his true task.  The gross irregularities in this matter had the effect of rendering the award unreasonable.  In light of the totality of the evidence in this matter, it is clear that a reasonable decision-maker could not have come to the conclusion that the Commissioner reached.

[23]      The court a quo unduly deferred too much to the Commissioner’s reasons and did not properly review his decision.”