Mashigo v SAPS & others [2018] 10 BLLR 943 (LAC)

Principle:

Where the role of the arbitrator is to determine the fairness of a dismissal, it may constitute a gross irregularity if the arbitrator adopts an unduly formalistic approach to the proceedings and narrows the enquiry to a focus on whether intent to commit a crime has been proved, and not whether the employee's conduct constituted a breach of the employer's disciplinary code.

Facts:

The appellant, M, was employed by SAPS as a policeman. Following an incident he was found guilty and dismissed for contravening SAPS Discipline Regulations by committing assault and attempted murder. Aggrieved with his dismissal, he referred an unfair dismissal dispute to the bargaining council. The evidence at arbitration was that the policeman was off duty and was not in uniform when driving with a colleague and two other people in an unmarked SAPS vehicle. He stopped the vehicle next to a woman who was standing in the road with a relative, N. The policeman and his colleague did not identify themselves as police officers after stopping, although the employee accepted that he had a duty to do so. An argument ensued between the policeman and N, which culminated in N being slapped, before the policeman drew his firearm and pointed it at N. Two others arrived at the scene and the policeman fired several shots from his firearm. The policeman's car, driven by his passenger, then drove into one person, knocking him down. The two people who arrived on the scene were shot - one in his arm and the other in his back.

The arbitrator accepted the policeman's version that he had fired a warning shot which had ricocheted and hit one person. The arbitrator however also found that no evidence was placed before him that it was the bullets from the policeman's firearm that had struck the two persons who were shot. Given that a cartridge which did not match the policeman's firearm was found on the scene, the arbitrator found that this suggested that the policeman was not the only person firing shots. Since insufficient evidence had been placed before him to reach a conclusion that the policeman had the intention to kill the two who were shot, the requisite intent was found lacking and the dismissal of the policeman was found to be substantively unfair. The policeman was retrospectively reinstated into his employment with the SAPS.

Dissatisfied with the award, the SAPS brought an application for its review. The Labour Court found that the arbitration award showed "little comprehension of the employee relations context" in relation to both the charges against the policeman and the standard of conduct to be upheld by members of the SAPS in the communities in which they serve. The Court took the view that the arbitrator ought properly to have considered whether the policeman had acted with recklessness. Instead, the arbitrator had arrived at a conclusion on his own theory of ballistic matters which was speculative and unsupported by the evidence. The Court concluded that "(t)his defect, and in addition, the arbitrator's failure to understand the nature of the dispute he had to arbitrate, renders the award reviewable." Since it was found to be inappropriate to substitute the decision of the arbitrator, the matter was remitted back to the bargaining council for hearing de novo before a different arbitrator.

On appeal to the LAC, it was confirmed that the Labour Court could not be faulted for arriving at the conclusion that the arbitrator had failed "to understand the nature of the dispute he had to arbitrate" and that this rendered the award reviewable.

This case highlights that here the role of the arbitrator is to determine the fairness of a dismissal, it may constitute a gross irregularity if the arbitrator adopts an unduly formalistic approach to the proceedings and narrows the enquiry to a focus on whether intent to commit a crime has been proved, and not whether the employee's conduct constituted a breach of the employer's disciplinary code.

Extract from the judgment:

Savage AJA:

[1]   The Labour Court cannot be faulted for its finding that the arbitration award evinced "little comprehension of the employee relations context". The arbitrator was faced with serious allegations of misconduct raised against the appellant. While these allegations had been framed in the language of a criminal charge, the task of the arbitrator in a hearing de novo was to determine the fairness of the appellant's dismissal, having regard to the allegations against him and the standard of conduct required of the appellant in the position of police officer. This enquiry was to be undertaken without adherence to undue formalism.

[2]   The arbitrator, however, narrowed the focus of his enquiry to whether it had been proved that the appellant had the requisite intent to commit the charge of attempted murder. In doing so, the arbitrator misconstrued that the nature of the enquiry before him concerned a disciplinary complaint, which required the allegations raised to be considered against the employer's disciplinary code and the standard of conduct required of the appellant. In narrowing the enquiry to a focus on whether intent to commit attempted murder had been proved, and not whether the appellant's conduct constituted a breach of the SAPS code of conduct, the arbitrator adopted an unduly formalistic approach to the proceedings. In doing so he committed a gross irregularity in the conduct of the matter, which resulted in a defect arising in the proceedings.

[3]   In Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others this Court cautioned against an overly formalistic approach to workplace discipline, quoting Le Roux and Van Niekerk:

'Employers embarking on disciplinary proceedings occasionally define the alleged misconduct incorrectly. For example, an employee is charged with theft and the evidence either at the disciplinary enquiry or during the industrial court proceedings, establishes unauthorised possession of company property. Here the rule appears to be that, provided a disciplinary rule has been contravened, that the employee knew that such conduct could be the subject of disciplinary proceedings, and that he was not significantly prejudiced by the incorrect characterization, discipline appropriate to the offence found to have been committed may be imposed.'

[4]   The Labour Court cannot be faulted for arriving at the conclusion that the arbitrator had failed "to understand the nature of the dispute he had to arbitrate" and that this rendered the award reviewable. This was so given that a defect arose in the proceedings, which took the form of a gross irregularity, in the arbitrator adopting the narrowed approach that he did to the enquiry. Furthermore, the manner in which the arbitrator approached the evidence caused the decision reached to be one that a reasonable decision-maker could not reach. This was so since the finding that the probabilities supported the version of the appellant was arrived at, without having regard to the conflicting versions placed before the arbitrator or to the approach set out in SFW Group Ltd & another v Martell etCie & others. In addition, the arbitrator's finding that the bullet which hit Mr Sefumba had ricocheted was arrived at when no ballistic evidence regarding the trajectory of such bullet had been placed before the arbitrator to support such a finding. The finding that, given that a cartridge found on the scene did not match the appellant's firearm, suggested that the appellant was not the only person firing shots, was similarly arrived at without regard to the evidence or to what the most plausible inference to be drawn in the circumstances was.

[5]   Having regard to these defects in the arbitration award, I am satisfied that the Labour Court was correct in its finding that the award fell to be set aside on review and remitted back to the second respondent for a new hearing before a different arbitrator. The decision reached was one that a reasonable arbitrator could not have reached on the material before him. For all of these reasons, the appeal must fail.

[6]   Given that the appeal was raised by an individual employee, and having regard to considerations of law and fairness, I consider it appropriate to make no order as to costs.

Order

[7]   For these reasons, the following order is made:
  1. The appeal is dismissed with no order as to costs.