IN THE LABOUR COURT OF LESOTHO LC/REV/101/11
HELD AT MASERU
In the matter between:
NEO LEPAMO & ASSOCIATES (PTY) LTD APPLICANT
t/a MAIN NORTH ONE SERVICES
PALESA MASENYETSE 1st RESPONDENT
DIRECTORATE OF DISPUTE PREVENTION 2nd RESPONDENT
Practice and Procedure - Review of an arbitral award - On the basis that it was irregular for the Arbitrator to have concluded on his own that the imposition of a sanction of dismissal against an employee was too severe; secondly that he pronounced himself on the issue without having asked parties to address him on it - Determination by the Arbitrator found to have been irregular in that it was made on an issue that was not raised by the parties and on which parties were not invited to make representations prior to it being made - Award reviewed and set aside.
1. The applicant is herein seeking to have the award of the Directorate of Dispute Prevention and Resolution (DDPR) in A0013/13 reviewed and set aside. The 1st respondent had been employed by the applicant as a Petrol Attendant. She was alleged to have left her work to sit in a car with a visitor/friend, ate and failed to attend to customers. It emerged from the record that when confronted by the Manager she became very rude and disrespectful, indicating to the Manager that it was a lady from her home village. She was subsequently charged with neglect of duty and insubordination for having attended to a visitor during working hours and being rude about it when confronted by her Manager, was found guilty as charged and dismissed.
2. She challenged the substantive and procedural fairness of the said dismissal before the DDPR denying that she committed any misconduct. The learned Arbitrator found her to have committed the alleged breach but concluded that the sanction of dismissal was too harsh a penalty, and ordered that she be reinstated to her employment. The employer was aggrieved by this decision and lodged this review application. Applicant’s Counsel contended on behalf of the Company that it was erroneous for the learned Arbitrator to have concluded that the sanction of dismissal imposed by the employer was too severe when it was not an issue that was before him for determination. For him, it was neither here nor there.
3. He further argued that besides the question of the penalty not being an issue for determination, they were never invited to address him on it, and he therefore made a determination on an issue which they never traversed, which was irregular. He maintained that 1st respondent’s case before the DDPR was solely based on the claim that she had not committed any breach of the Company Rules and by no means on the severity of the punishment. It was against this background that the applicant Company sought to have the learned Arbitrator’s award reviewed and set aside.
4. Succinctly captured, applicant’s Counsel argued that it was irrational and irregular for the learned Arbitrator to have:-
APPLICABLE LEGAL PRINCIPLES
5. At the commencement of the review proceedings, applicant’s Counsel decided to abandon the first ground of review and intimated to the Court that he would only pursue the second and the third grounds. The two remaining grounds are interrelated. The issue now confronting the Court is whether it was appropriate for the learned Arbitrator to have concluded on his own accord that the sanction of a dismissal meted out against the 1st respondent by the employer was too harsh; secondly, whether it was proper for him to have reached that conclusion when for one it had not been raised by anyone of the parties and again that he had not asked the parties to address him on it.
6. In order to put the dispute before us in a proper perspective, we found it prudent to set a stage by giving a brief background on the powers of Courts and Arbitration processes vis a` vis unfair dismissals. The determination of an appropriate sanction is a matter which is largely within the discretion of the employer, a discretion which must, however, be exercised fairly. The test was aptly captured by the South African Labour Appeal Court in Nampak Corrugated Wadeville v Khoza 1999 20 ILJ at 578, when it held that:-
Whether a dismissal is a fair or appropriate sanction is a matter largely within the discretion of the employer. This discretion must be exercised fairly and the court should not lightly interfere with the sanction imposed unless the employer has acted unfairly in doing so. The question is not whether the court would have imposed the sanction imposed by the employer, but whether in the circumstances the sanction was reasonable.
7. This position was confirmed by one of the eminent Labour Law writers Grogan J., in Workplace Law, 8th ed., at p. 91 when he wrote that:-
The power to prescribe standards of conduct for the workplace and to initiate disciplinary steps against transgressors is one of the most jealously guarded territories
of managers everywhere, forming as it does an integral part of the right to manage …
As Ngcobo AJP., (as he then was) put it in County Fair Foods (Pty) Ltd v CCMA (1999) 20 ILJ, 1701 (LAC):-
A Commissioner [an Arbitrator] is only justified in interfering in a sanction where the sanction is so excessive as to shock one’s sense of fairness.
8. As it is, the employer has a right to set standards of conduct and to determine the appropriate sanction. The Court or the Arbitrator is entitled to intervene if and only if the sanction imposed by the employer falls outside the band of decisions to which a reasonable decision maker could come to on the evidence before him or her.
There is a band of reasonableness within which one employer may reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him. (British Leyland UK Limited v Swift  IRLR 91 at 93, para 11).
9. Put in simple terms, the test is: Was it reasonable for the employer to have dismissed the employee in the circumstances? If no reasonable employer would have dismissed him or her, then the dismissal was unfair. But if a reasonable employer might have reasonably dismissed him or her, then the dismissal was fair. The Court is not entitled to interfere only because it would have imposed a different (less severe) sanction, or because it considers the sanction to be unduly harsh. The test is not whether the Court would have imposed the sanction imposed by the employer, but whether in the circumstances of the case the sanction was reasonable. In the words of Midgley C., interference would only be justifiable “if the sanction would make one whistle” - Isaac v Grahamstown Golf Club (2001) 22 ILJ 800 at 809. The scope for interference in decisions on sanctions is therefore very narrow.
10. Having set the stage, we now come to the merits of the case before us. It is applicant’s case that the learned Arbitrator had no right to make a determination on the severity of the employer’s sanction in this case as it was not a case that he was confronted with, it having never been raised as an issue. He could therefore not make a determination mero motu and exercise a discretion to assess the appropriateness of the sanction when it was not a matter for his determination. He submitted that the learned Arbitrator’s decision was in the circumstances reviewable.
11. It is trite that Courts cannot grant reliefs that were not sought. There are a number of authorities on the issue. In Mosa Masilo v National University of Lesotho & Others LC/REV/587/08 this Court reviewed and set aside a decision in which an Arbitrator had awarded costs where they had not been sought and without having afforded the parties an opportunity to have addressed him on the issue. The Court held that it was irregular for the Arbitrator to have awarded costs without having asked the parties to address him on them.
12. In casu, if the learned Arbitrator felt strongly about the sanction meted out against the employee he could have invited the parties to address him in order to make a determination supported by evidence and their submissions. It is settled law that the non-performance or wrong performance of a statutory duty or power by the person or body entrusted with the duty or power will entitle persons injured or aggrieved thereby to approach the Court for relief by way of review - See Johannesburg Consolidated Investment Co., v Johannesburg Town Council 1903 TS 111 at 115.
13. If in ascertaining the fairness or otherwise of the dismissal, he found the sanction rather harsh in the circumstances, he ought to have asked the parties to address him on the issue. This would give them a full opportunity to state their respective sides before he could make a finding on the severity or otherwise of the sanction. As it were, the issue of the severity of the sanction was extraneous and outside his scope.
14. The 1st respondent was accused of having deliberately neglected her duties and for insubordination. She denied the charge although the record reflects that following the disciplinary hearing she wrote a letter acknowledging her wrongdoing and asked for forgiveness. She, however, later denied any misdemeanor on her part and challenged her dismissal. She lodged an unfair dismissal claim before the DDPR. In our view, the learned Arbitrator was not called upon to decide on the severity of the sanction of the dismissal but to assess the substantive and procedural fairness thereof, that is, whether there was a valid reason to dismiss the 1st respondent and whether a fair procedure was followed in effecting the said dismissal. The severity of the sanction was not an issue, hence never deliberated upon by the parties.
15. The learned Arbitrator could even fall prey to an accusation of consideration of irrelevant issues, which is a ground of review. Grounds of review were ably captured in the classical case of Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA 132 at 152. It was held in that case that in order to establish review grounds it must be shown that the presiding officer in the Court a quo failed to apply his or her mind to the relevant issues in accordance with the ‘behests of the statute and the tenets of natural justice.’ It was held that such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily, capriciously, mala fide, as a result of unwarranted adherence to a fixed principle, in order to further an ulterior or improper purpose, that the presiding officer misconceived the nature of the discretion conferred upon him or her and took into account irrelevant considerations. The applicant was not afforded a hearing before a decision prejudicial to it was taken thereby militating against the audi alterum partem principle of natural justice.
16. This case is distinguishable from that of Formosa Textiles (Pty) Ltd v Ts’eliso Lechoba & DDPR LC/REV/91/08 (Lesotholii) in which this Court reviewed and set aside an Arbitrator’s award in a case in which the employee had pleaded guilty to a charge levelled against him but felt the sanction of a dismissal was too harsh. This was a case in which the employee had dyed his jacket in a container collecting dye that was leaking from the main container in a textile factory. The employer accused him of using Company property without authorisation and insisted that everything on the Company premises belonged to it, even if one may think that it is useless or of little value. The learned Arbitrator had made a finding that the dye was waste. The Court held that it is not upon the Arbitrator to give her opinion on the issue as it was a managerial prerogative. The employer had pointed out that the dye could be re-used. The Court reiterated the principle that the employer has a right to set standards of conduct and to determine a sanction with which transgressions would be visited.
17. The Court underscored the principle that the Arbitrator should not willy nilly interfere with the employer’s sanction just because she herself would have imposed a different sanction. It is only in circumstances that shock one’s sense of fairness that Courts or Arbitrators can interfere. The distinction that can be drawn between the case before us and the Formosa case is that in the latter the Arbitrator was requested to make a determination on the fairness of the sanction of a dismissal in the employee’s circumstances. However, in the case before us, this was not the case. The story would have been different if the 1st respondent had referred to the DDPR a complaint that the penalty imposed was too harsh, the learned Arbitrator would then pronounce himself having heard the parties. The Formosa decision echoed this Court’s decision in TZICC v DDPR & Another LC/REV/125/06 (Lesotholii) in which the Court had implored Arbitrators to be careful and not substitute themselves for disciplinary panels.
18. The Court therefore comes to the following conclusion that:-
THUS DONE AND DATED AT MASERU THIS 16th DAY OF JUNE, 2014.
PRESIDENT OF THE LABOUR COURT (a.i)
MS P. LEBITSA I CONCUR
MR R. MOTHEPU I CONCUR
FOR THE APPLICANT: MR N.T. NTAOTE - EMPLOYERS` FORUM
FOR THE 1st RESPONDENT: MR L.J. MOLEFI - LESOTHO WHOLESALERS, CATERING & ALLIED WORKERS’ UNION
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