(iii)
The Third Respondent is to pay the Applicant’s costs
The Second Respondent in the court a quo was the commissioner. The Third Respondent in the court a quo was the employer. The commissioner delivered his award on 13th April 2004. He found the dismissal of the first respondent (the employee) to have been both substantively and procedurally fair.
The employee took the commissioner’s decision to the Labour Court on review. This resulted in the order of the Court a quo which was given on 24th October 2005. The employee did not wish to be reinstated.
[2] The reasons which the court a quo gave for finding the dismissal to have been unfair were that the commissioner had adopted an “inflexible approach” and
that
on the evidence before me, the applicant did not behave in a fashion which endangered others. His job description did not place him
in a category where he could harm others. Furthermore, his demeanour could not be described by anyone as being any one of those listed
in the code. It would appear that if he was not tested for alcohol, nobody would have noticed that he had consumed alcohol. Furthermore,
the applicant is 58 years old and a first offender. These are all factors which should have been taken into account but were not.
[3] The material facts are, essentially, common cause. The employer, which operates a mine, has a written policy that any mine employee
– which this employee was – found to have more than 0,05 gram of alcohol per 100 millilitres of blood while on duty may
be dismissed for a first offence. The employee was aware of this policy. The employee, who was company secretary, was subjected to
a random alcohol test at the main entrance to the mine on 13th March, 2003. His blowing into a alcohol meter indicated that he was probably under the influence of alcohol. He was immediately taken
to a security control room for an alcometer test which showed that he had 0,115 gram per 100ml in his blood. A second test, taken
twenty minutes later, showed a reading of 0.095 gram per 100ml. The employee admitted having consumed alcohol the previous night,
although his accounts of how much varied from time to time. The employee tried to challenge the accuracy of the readings but, as
the commissioner correctly observed, the evidence as a whole was, on a balance of probabilities, against the employee. Counsel for
the employee conceded in this court that the employee’s guilt was not in issue in the appeal. Furthermore, there was no cross-appeal
noted in regard to the court a quo’s finding in this regard. The employee had eight years of service with the employee. He was 58 years’ old at the time. The level
of intoxication, above the proscribed limit, resulted in his dismissal. His internal appeal was unsuccessful. The employer has justified
its strict policy in this regard by relying on its duty to ensure the safety of its employees working at the mine. It justified its
dismissal of this particular employee on the grounds that it had to be consistent and, although he was a first offender, in view
of the employee’s senior and responsible position, he should have been above reproach with regard to this issue. When the dispute
relating to the alleged unfair dismissal of the employee was referred to the commissioner for arbitration, he found no quarrel with
the employer’s reasons for dismissing him. No exceptional circumstances were raised at any stage by the employee. He did, however,
complain that he was under a certain amount of stress and had been taking antibiotics. The commissioner, having found the dismissal
of the employee to have been substantively and procedurally unfair, confirmed the dismissal.
[4] The question of the appropriate standard in cases when the arbitration awards of commissioners of the CCMA are considered on review
has vexed employees and employers, lawyers, the CCMA, the Labour Court, the Labour Appeal Court and the Supreme Court of Appeal since
the commencement of the Labour Relations Act No 66 of 1995 (LRA). The law reports are replete with judgments in this regard. The
difficulties which the issue has presented have required considerable forbearance on the part of litigants. The legal determination
of appropriate margins of tolerance for decisions made by others is, unfortunately, not only intellectually complex but also profoundly
dialectical. The Constitutional Court has now spoken on the matter in the as yet unreported case of Sidumo v Rustenburg Platinum Mines (Case No CCT 85/06). The judgment was delivered on 5th October, 2007. This court is indebted to counsel for the parties in referring us to many of the cases which were considered by the
courts before this recent judgment of the Constitutional Court. It seems fair to say that, insofar as the appropriate standard is
concerned, these judgments are now, essentially, of archival relevance only. It should be recorded that the heads of argument in
this matter were filed in August and December 2006 by the employer and employee respectively. The Constitutional Court itself has
said that its judgment raised “issues of importance to employers and employees alike”. With due respect to the Constitutional
Court, it must be observed that this statement reflects an acutely modest understatement. The judgment is indeed of massive importance.
Whatever other consequences there may be, the task of the Labour Courts has been hugely facilitated by the Constitutional Court’s
judgment. The standard is:
the one in Bato Star: is the decision reached by the commissioner one that a reasonable decision-maker could not reach?
These are the ipsissima verba of Navsa AJ, delivering the judgment of the majority of the Constitutional Court. Despite the fact that decision-makers, acting reasonably, may reach different conclusions, the LRA has given the decision-making
power to the commissioner and there it rests, unless it be concluded that a reasonable decision maker could not reach such a conclusion. Indeed, read together with Bato Star, upon which the majority decision in Sidumo v Rustenburg Platinum Mines so strongly relies, the judgment has the clear effect that the courts, and, in particular, the Labour Courts, must defer (but not
in an absolute sense) to the decision of the commissioner. In the minority judgment of Ngcobo J, it is noted that the intention of the LRA is that
as far as is possible arbitration awards would be final and would only be interfered with in very limited circumstances.
It needs to be emphasised that, although different paths of reasoning were followed in the differing judgments of the Constitutional
Court dealing with this particular case, the court was unanimous as to the order which should be made. Lest there be any doubt, it
is this:
the Commissioner’s award is restored.
[5] The result in the Constitutional Court’s decision in the Sidumo v Rustenburg Platinum Mines case illuminates the reasoning. In that case, the employee was a security officer whose duty it was to search employees leaving a
certain point. Video surveillance revealed that he had, in 24 specifically monitored instances, conducted only one search in accordance
with established procedures. On eight occasions, he conducted no search at all. Fifteen other searches did not conform to procedures.
The video also revealed that Sidumo allowed persons to sign the search register without conducting any search at all. For this he was dismissed. The commissioner took into account the employee’s long service, the fact that no losses appear to
have resulted from his failure to perform his duty, that the violation had been unintentional or a “mistake” and that
it had not been shown that the employee had been dishonest and found that the dismissal was too harsh a sanction. This resulted in the award reinstating the employee. Despite robust criticisms of the commissioner’s reasoning, the Constitutional Court restored the commissioner’s award. This was the dispute which travelled, with sharply differing views among the judiciary, to the Labour Court, the Labour Appeal Court,
the Supreme Court of Appeal and, finally, seven years after the dismissal, to the Constitutional Court.
[6] Ironically, in Bato Star, the Constitutional Court referred with approval to Schutz JA’s endorsement of Professor Hoexter’s understanding of “deference”
as entailing, inter alia, “according…due respect”, being “sensitive to the interests legitimately pursued”, being sensitive
to “the practical and financial constraints”, “a careful weighing up of the need for - and the consequences of
… intervention”, and “a conscious determination not to usurp the functions of…”. The context was different. Do these considerations evaporate and does the principle change when it comes to an employer’s decision
to dismiss? It seems that they do. The decision of the Constitutional Court Sidumo v Rustenburg Platinum Mines (Case No CCT 85/06), does not entail a shift away only from any degree of deference towards employers. It also:
(a)
as in this case, reduces the scope for a dissatisfied employee to take his or her dispute further; and
(b)
reduces the potential for the Labour Courts and the Supreme Court of Appeal to exercise scrutiny
over the decisions of commissioners who are appointed to arbitrate in terms of the LRA.
The majority judgment in Sidumo v Rustenburg Platinum Mines made it clear that the CCMA is not a court of law, although there are similarities. Nevertheless, the courts must defer to it. Ngcobo J held that the function of the CCMA is adjudicative when commissioners resolve
labour disputes through arbitration.. Indeed, he says that the function is judicial in nature. The CCMA is not, however, in Ngcobo’s opinion a court of law. Nevertheless, its functions are “substantially similar in form and substance to those performed by a court of law”. Interestingly, the considerations which justify deference to decision-makers such as members of the executive and public servants are not readily apparent when it comes to commissioners of the CCMA. The following features are important when considering the powers
and functions of commissioners who are appointed to arbitrate in terms of the LRA:
(i)
unlike judges, commissioners are not subject to any comparable provisions of section 16 of the Supreme Court Act which requires that, except in special cases, judges are to conduct their proceedings in public;
(ii)
Unlike courts, the decisions of commissioner’s are not amenable to appeal;
(iii)
judges are accountable to the Judicial Services Commission but there is no comparable provision in the LRA or elsewhere for commissioners;
(iv)
there is no provision of law for the appointment of commissioners which is comparable to the provisions of section 174 of the Constitution
which relate to the appointment of judges;
(v)
the norms, traditions, practices and customs which require that a person should, inter alia, have a lengthy track record of proven competence in order to qualify as a “fit and proper person” to be appointed as a judge do not apply in the case of commissioners;
(vi)
unlike arbitrators appointed in terms of the Arbitration Act, or, for that matter, arbitrators appointed Bargaining Council panels, commissioners do not discharge their powers with the consent
of the parties;
(vi)
unlike public servants, commissioners are not accountable to a member of the executive branch of government who, in turn, is held accountable by his or her respective legislature;
(vii)
unlike public representatives, commissioners are not answerable to an electorate;
(viii)
unlike private sector employees, commissioners are shielded from the feedback and responsiveness that are, albeit often imperfectly,
inherent in market forces;
(ix)
unlike employers, commissioners do not have to bear the costs, economic and otherwise, either of dismissal (on the one hand) or of
reinstatement of compensation orders (on the other);
(x)
unlike employees, commissioners do not have to bear the tragic consequences which often flow from dismissal;
(xi)
although there is a Code of Good Practice for Dismissals, unlike departments of government, the CCMA has no policy guidelines which operate to ensure consistency, predictability and reliability
in the decisions of commissioners;
(xii)
unlike the courts, the CCMA does not have, and cannot have, a hierarchical system with binding precedent or through which guidelines
can evolve over time.
A lawyer might better understand the peculiar position of CCMA commissioners when they arbitrate in terms of the LRA if it were to be described as both quasi-administrative and
quasi-judicial. The position of commissioners of the CCMA has elements of both administrative and judicial powers and functions without,
in any conventionally understood sense, quite being either. Furthermore, the traditional “hands off” approach of the
courts to arbitrations has, at its root, the fact that the parties agreed not only to submit to arbitration but also agreed upon
their arbitrator. In Dickenson & Brown v Fisher’s Executors the following dictum of Lord Halsbury in Caledonian Railways v Turcan was quoted with approval:
The parties have selected the arbitrator as judge of fact and law, and if he be ever so erroneous in the decision at which he has arrived it is conclusive upon
the parties…; his award is final, and whether it be right or wrong in point of law, it is a matter with which I am not entitled
to deal. (emphasis added)
Indeed, the term “compulsory arbitration” when used to refer to arbitrations conducted by commissioners of the CCMA in
terms of the LRA, without the agreement of the parties, is almost an oxymoron. An arbitration is:
A method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and
whose decision is binding.
It seems not unreasonable to assume that the term “arbitration” was employed in the LRA because it had gained a certain
currency and perhaps even a certain “magic” by reason of the extraordinarily successful contribution of a private agency,
the Independent Mediation Service of South Africa (“IMSSA”) to labour relations, and indeed other areas as well, in the
decade which preceded the coming into being of the democratic order in our country. IMSSA arbitrations were consensual. Commissioners
of the CCMA have the advantages both of administrative decision-makers (their decisions are not disturbed merely because a court
considers them to have been wrong) and judicial officers (independence) but are not subject to most of the checks and balances that
are applicable to an administrative decision-maker or a judicial officer or even a decision-maker in the private sector. The implications
are considerable.
[7] It is apposite, for a number of reasons, to refer to the well-known case of Cassell & Co Ltd v Broome which has been referred to with approval in S v Kgafela. Lord Denning and two other judges of the English Court of Appeal had decided that the decision in the House of Lords in a certain
case had been decided per incuriam and was ulra vires. The Court of Appeal went further still and said that the decision was “unworkable” and that “judges should direct
juries in accordance with the law as it was understood before Rookes v Barnard.”(the decision in the House of Lords with which the Court of Appeal disagreed). In the House of Lords each of their lordships
delivered a separate Speech. The Lord Chancellor, Lord Hailsham of St Marylebone, whose opinion prevailed, said:
In view of their importance it is unavoidable that before entering into the merits of the appeal I should discuss in a few paragraphs
both the propriety and desirability of the course taken by the Court of Appeal. I desire to do so briefly and with studied moderation.
Lord Hailsham went on to refer to the importance of judicial precedent in a hierarchy of courts and said that a dispute between the
Court of Appeal and the House of Lords was “unedifying”. He then went on to say:
But, much worse than this, litigants would not have known where they stood. None could have reached finality short of the House of
Lords, and, in the meantime, the task of their professional advisers of advising them either as to their rights, or as to the probable
cost of obtaining or defending them would have been, quite literally impossible. Whatever the merits, chaos would have reigned until
the dispute was settled, and, in legal matters, some degree of certainty is at least as valuable a part of justice as perfection.
The fact is, and I hope it will never be necessary to say so again, that, in the
hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal to
accept loyally the decisions of the higher tiers.
Lord Reid, who concurred with Lord Hailsham (as did Lord Morris of Borth-Y-Gest, Lord Wilberforce (on the question of precedent),
Lord Diplock and Lord Kilbrandon) noted that the Court of Appeal chose to “attack the decision of this House as bad law”.
He said they were “quite entitled to state their views and reasons for reaching that conclusion” but was dismayed that
they did not apply the decision of the House of Lords. He described this as an “aberration”. Later he said that “(i)t
is perfectly legitimate to think and say we were wrong.” The point is this: courts lower in the hierarchy may disagree with
decisions of those that are higher and may even say so. Nevertheless, they are bound to follow the decisions in higher courts. It
has been impossible not to have been aware that “the chickens have been squawking” since the decision in Sidumo v Rustenburg Platinum Mines. It would be unedifying for this court to enter into the coop. In any event, the views of at least one of the members of this court
have been expressed elsewhere. Without further ado, this court will apply the decision of the Constitutional Court in Sidumo v Rustenburg Platinum Mines.
[8] If one compares the facts in casu with the facts in the case with which the Constitutional Court was concerned, then the obvious, inevitable and necessary conclusion
is that the learned judge in the court a quo was clearly wrong in interfering with the award of the commissioner. The appeal must succeed. As was noted earlier, the implications of the Constitutional Court’s decision are considerable. Clearly, commissioners of the
CCMA have a weighty responsibility to act fairly.
[9] Counsel for the employer graciously conceded that, as this was a difficult matter which had come before the CCMA and the Labour
Court before the decision in Sidumo v Rustenburg Platinum Mines, it would be appropriate not to make a costs order against the employee. This approach is to be commended.
[10] The following is the order of this court:
(i)
The appeal is upheld;
(ii)
The order of the court a quo given in this matter on 24th October 2005 is set aside;
(iii)
The following is substituted for the order of the Court a quo
.RTF of original document