ASA Metals (Pty) Ltd (Dilokong Chrome) v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 350 (LC)
A clear distinction must be drawn between a deliberate act of assault where one employee sets about assaulting another and an assault which is brought about by a scuffle between two or more employees. Surrounding circumstances must never be ignored.
Facts:
A supervisor was dismissed following an assault on a fellow employee, Mr M, who had come late to work, found his ticket removed from where it was normally kept, and he went to the clerks' office to take it from them. As soon as Mr M had found his ticket, the supervisor stood up and grabbed the ticket from Mr M's hand, after which a scuffle ensued wherein the supervisor and another employee forcefully pushed Mr M out of the office which resulted in the latter sustaining injuries on his chest and he was subsequently booked off for the day.
Whilst it was accepted that Mr M was rude, disrespectful and aggressive when demanding his ticket, the supervisor was charged with assault and the use of insulting language and provocation. He was dismissed.
At CCMA arbitration the commissioner relied on provocation and private defence (trying to defend himself) as part of the justification for concluding that dismissal was not an appropriate sanction. He found that the dismissal of the supervisor was inappropriate taking into account the fact that the conduct of Mr M was provocative, aggressive and clearly unacceptable. The commissioner said that the supervisor was trying to protect the two female clerks from Mr M's threatening behaviour, and a warning could have sufficed to correct his behaviour. The supervisor was a first-time offender with a clean disciplinary record. The dismissal was therefore found to be substantively unfair.
On review the Labour Court found that there was nothing in the record to suggest that the supervisor had been provoked or that he had been acting in defence of two female colleagues, and that the commissioner had erred in relying on provocation and private defence. The employee contended that, although some of the reasons articulated by the commissioner as justification for his decision that dismissal was too harsh a sanction, were not supported by the evidence before him, this did not per se render the award a bad one and therefore reviewable.
The court found that in this matter it had to look further than the reasons which the commissioner gave for his award. Whilst the commissioner had relied on provocation and private defence as justification for his conclusion that the sanction of dismissal was too harsh, these were not the only reasons which he articulated for his conclusion. He had given other reasons which on their own would have rendered the award reasonable. In addition, there were factors which, although not articulated, were apparent from the record, which the commissioner could have taken into account and which would have rendered the award reasonable.
The court was, therefore, of the view that the award, viewed objectively as a whole, was a decision which a reasonable decision maker could have reached. There was no reason why the award should be held to be unreasonable and be set aside simply because the commissioner failed to identify good reasons that existed, which could have demonstrated the reasonableness of the award.
The review was accordingly dismissed with costs.
Extract from the judgment:
Zondo AJ:
[19] If one adopts the approach in the Fidelity decision, which I have no doubt is a correct approach to CCMA awards, then it means that when one looks at the award in casu, one ought to look further than the reasons which the commissioner has given for his award. In my view, before one looks at the reasons which were not articulated, it is instructive first to look at other articulated reasons, apart from the bad ones, which have the effect of rendering the award reasonable.
[20] In casu, the commissioner, over and above provocation and private defence, went on to give other reasons for concluding that dismissal was too harsh a sanction. In this regard the commissioner made mention of the well conceded fact that, when Madutlela came to take his ticket in the room where Ponyane and others were seated, he was aggressive.
[21] This fact was indeed conceded, fairly in my view, by Mr Snider who said that Madutlela may have been aggressive in his approach but that did not warrant Ponyane's reaction. This did not make Madutlela's conduct entirely blameless even though there is no doubt that Ponyane's reaction was unwarranted. The commissioner further took into account that Madutlela was rude and disrespectful towards the two lady clerks. Once again Madutlela's conduct is not entirely blameless and the commissioner was correct in taking such conduct into account in finding that dismissal was too harsh when regard is had to the circumstances under which the assault took place.
[22] The commissioner then took into account the undisputed fact that Ponyane was a first-time offender and that no evidence was produced to show he had a bad disciplinary record. This coupled with the undisputed fact that Madutlela was rude, disrespectful and aggressive seems to me to be a cogent reason on the commissioner's part in finding that dismissal was too harsh. This alone ought to render the award reasonable and for these reasons alone I would be very slow to interfere with the award.
[23] Apart from the reasons which were clearly articulated by the commissioner and which have the effect of rendering the award reasonable, there are those which, albeit not articulated, do have the effect of sustaining the award. One of the reasons which the commissioner could have taken into account which is apparent from the record is Ponyane's unblemished service. Ponyane was employed in January 2003, had no disciplinary record up until the incident in question. That is a period of roughly seven years and that is a relatively long period of service. Indeed long service is one of the mitigating factors that a commissioner is required to take into account when determining appropriate sanction.
[24] What is also apparent from the record and indeed contended by Mr Motaung, which could have influenced the commissioner in his conclusion, is the absence of any evidence to the effect that Ponyane's conduct had rendered continued employment intolerable. Indeed if the applicant felt that the trust relationship had broken down as a result of Ponyane's conduct, the applicant was duty bound to lead evidence to that effect. In the absence of such evidence, the commissioner may very well have been within his right to find that a sanction of dismissal was too harsh.
[25] Another factor which the commissioner could have taken into account is the circumstances under which the assault took place. In my view the incident of assault against Madutlela must be understood in the context within which such assault took place. It is not contended that Ponyane stood up and simply pushed Madutlela but this happened in the context of a scuffle as a result of which Madutlela was pushed causing him to sustain injuries to his chest.
[26] Whilst it is true that Ponyane's conduct was unwarranted, I have some serious doubts that if surrounding circumstances were taken into account it could be said that dismissal was an appropriate sanction.
[27] In my view, a clear distinction must be drawn between a deliberate act of assault where one employee sets about assaulting another and an assault which is brought about by a scuffle between two or more employees. Surrounding circumstances must never be ignored. For me the circumstances surrounding the assault on Madutlela may very well dictate that progressive discipline in the form of a severe reprimand be invoked instead of dismissal where, as in this case, the employee had a clean record.
[28] Lest I am misunderstood, this is not to say that employees are at liberty to take the law into their own hands, for such conduct has no place in the workplace and indeed society in general, however it is only fair that punishment be proportionate to the offence taking into account all the circumstances. This may very well be one of those unarticulated or unidentified reasons but which have the effect of rendering the award reasonable. Am I to say simply because the commissioner failed to identify this reason his award is therefore unreasonable? I doubt very much.
[29] Perhaps this court needs to remind itself time and again that what is expected of commissioners is not awards that are impeccable but rather awards which fall within the band of reasonableness. In Shoprite Checkers v Ramdaw NO & others Zondo JP had occasion to reflect on the standards of awards:
'In my view, it is within the contemplation of the dispute-resolution system prescribed by the Act that there will be arbitration awards which are unsatisfactory in many respects but nevertheless must be allowed to stand because they are not so unsatisfactory as to fall foul of the applicable grounds of review. Without such contemplation, the Act's objective of expeditious resolution of disputes would have no hope of being achieved. In my view the commissioner's award cannot be said to be unjustifiable when regard is had to all the circumstances in this case and the material that was before him.'[30] In conclusion, it is my view that, despite the unsatisfactory nature of the award, it cannot be said that it is a decision which a reasonable decision maker could not have reached. Whilst it is true that the commissioner sought to rely on provocation and private defence as justification for his conclusion that the sanction of dismissal was too harsh, these are however not the only reasons which the commissioner articulated for his conclusion.
[31] Factors such as clean record prior to the incident and the circumstances under which the incident of assault took place were also taken into account as a justification for the conclusion that dismissal was too harsh. The commissioner further took into account the well conceded fact that Madutlela was aggressive. For me even if one were to remove provocation and private defence, the remaining factors in the commissioner's reasoning still render his award reasonable.
[32] Over and above the foregoing, as stated elsewhere in this judgment, there are factors which, albeit not articulated, are apparent from the record and which have the effect of rendering the award a reasonable one in keeping with what was said in Fidelity Cash Management Service. I am therefore of the view that the award, viewed objectively as a whole, is a decision which a reasonable decision maker could have reached.
[33] There is no reason why this award which, viewed objectively, is reasonable, should be held to be unreasonable and set aside simply because the commissioner failed to identify good reasons that existed which could demonstrate the reasonableness of the award. In the premises, I therefore make the following order:
- The review application is dismissed.
- There is no order as to costs.