South African Breweries Ltd v Commission for Conciliation Mediation and Arbitration and Others (C 665/2011) [2012] ZALCCT 17 (24 May 2012)

Principle:
(1)   The factors to be applied in determining whether a dismissal was fair are the following: The totality of circumstances; The importance of the rule that had been breached; The reason the employer imposed the sanction of dismissal; The harm caused by the employee's conduct; Whether additional training and instruction may result in the employee not repeating the misconduct; The effect of dismissal on the employee; and the employee's service record.

(2)   An arbitrator's role is to decide whether the decision to dismiss was fair. In doing so, it is the commissioner's own sense of fairness that must prevail. There can be no deference to the employer.



Facts:
The employee, a process operator with 22 years' service, was found to have entered the employer's laboratory, taken a bottle of beer from the fridge and drank some of it. Three charges were brought against the employee: - drinking alcohol on duty, unauthorised removal and consumption of SAB products, and operating machinery after having consumed alcohol at the workplace. On the third charge, the employee was only tested some seven hours after the incident and showed no alcohol in his system. The arbitrator considered the first two charges to be the main elements of the misconduct.

The arbitrator took into account the factors specified in Sidumo in determining whether the dismissal was fair. The arbitrator noted that the employee only had 'a few sips' of beer, his long service and 'generally unblemished record', and the fact that no evidence was led to establish an irretrievable breakdown in the trust relationship, and found the dismissal to be substantively unfair. He ordered reinstatement (subject to a final warning) from a future date, which effectively meant that the employee was suspended without pay for four and a half months.

The arbitrator took into account that the employer adopted a tough stance on alcohol related misconduct. Nevertheless he concluded that dismissal was too harsh a sanction. The arbitrator also noted that no evidence was led to establish an irretrievable breakdown in the trust relationship between employer and employee.

The judgement clarified again what an arbitrator's role is in assessing the fairness of a dismissal, as determined in Sidumo. The court stated that an arbitrator's role is to decide whether the decision to dismiss was fair. In doing so, it is the commissioner's own sense of fairness that must prevail. There can be no deference to the employer.

The arbitrator's decision was upheld on review by the Labour Court. It seems fair to comment that the outcome may have turned on the test for review as established by Sidumo, namely whether the arbitrator's decision is 'a decision that a reasonable decision maker could reach'. The judge commented that the fact that the court may have formed a different view, is not the test on review.

Extract from judgement
(7)   The arbitrator took into account that SAB takes a tough stance on alcohol-related misconduct. However, he pointed out that he should "holistically assess" the merits of the parties' respective cases and expressed the view that he should "come to a decision which is even-handed and fair." Taking into account that dismissal is reserved for the most serious cases of misconduct, particularly in circumstances where the employment relationship cannot be reconstructed, he concluded that dismissal was too harsh a sanction - in other words, unfair.

(8)   In doing so, the arbitrator had regard to Sidumo, where the Constitutional Court enjoined arbitrators to take the following factors into account in determining whether a dismissal was fair:

(8.1) The totality of circumstances;
(8.2) The importance of the rule that had been breached;
(8.3) The reason the employer imposed the sanction of dismissal;
(8.4) The harm caused by the employee's conduct'
(8.5) Whether additional training and instruction may result in the employee not repeating the misconduct;
(8.6) The effect of dismissal on the employee; and
(8.7) The employee's service record.


(9)   The arbitrator also pointed out that, in Fidelity Cash Management Services v CCMA & others, the Labour Appeal Court held that in considering the totality of circumstances, the commissioner would have to answer the question whether dismissal was in all of the circumstances a fair sanction. In answering that question he or she would have to use his or her own sense of fairness.

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The Labour Appeal Court very recently discussed the Sidumo test in Wasteman Group v SAMWU & Others. Davis JA confirmed that:

(25)   "The commissioner is required to come to an independent decision as to whether the employer's decision was fair in the circumstances, these circumstances being established by the factual matrix confronting the commissioner."

(26)   In my view, the commissioner's view can best be summarised thus: The employer decides to dismiss. The commissioner conducts an arbitration de novo. In the light of the totality of circumstances, established by the evidence at arbitration, the commissioner must then decide whether the decision to dismiss was fair. In doing so, it is the commissioner's own sense of fairness that must prevail. There can be no deference to the employer.

(27)   It should be clear from my understanding of the commissioner's role that I do not agree that the commissioner's role with regard to the employer's decision to dismiss is akin to the role of this court sitting in review of the arbitrator's decision. The commissioner must decide whether the decision to dismiss was fair; this court may only decide whether the arbitrator's decision was so unreasonable that no other arbitrator could have reached the same decision. Even if the court's own sense of fairness may dictate a different outcome, it cannot interfere with the decision of the arbitrator. The converse applies to the arbitrator when deciding whether the employer's decision to dismiss was fair.

(28)   In the present case, the arbitrator carefully considered all the evidence before him. Despite the seriousness of the misconduct, he came to the conclusion that the sanction of dismissal was not fair, especially given the applicant's unblemished record of 22 years and the inference that he caused no operational risk. Even if this court may have reached a different conclusion, it is not so unreasonable that no other arbitrator may have reached the same conclusion. The award is not reviewable on this ground.