IN THE LABOUR COURT OF LESOTHO
LC/REV/101/11
HELD AT MASERU
In the matter between:
NEO LEPAMO & ASSOCIATES (PTY) LTD
t/a MAIN NORTH ONE SERVICES
APPLICANT
and
PALESA MASENYETSE
DIRECTORATE OF DISPUTE PREVENTION
AND RESOLUTION
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
_____________________________________________
DATE: 16/06/14
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.
INTRODUCTION
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.
APPLICANT’S CASE
4. Succinctly captured, applicant’s Counsel argued that it was irrational and
irregular for the learned Arbitrator to have:a) Allowed the applicant (respondent before the DDPR) to have started
first in the proceedings thereby prejudicing it in that it did not know
what case it had to answer, and further in that when it was 1st
respondent’s turn, she raised new issues which could not be challenged
because the respondent had already closed its case;
b) Concluded that the acts of misconduct complained about by the
employer did not warrant a dismissal, a sanction he considered too
harsh in the circumstances. As far as the applicant was concerned, the
penalty was reasonable; and lastly that he
c) Made a determination on the severity of the punishment when it was
not an issue before him and without having invited the parties to
address him on it.
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 [1981] 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:a) The review application succeeds;
b) The award in A0013/13 is reviewed and set aside; and
c) There is no order as to costs.
THUS DONE AND DATED AT MASERU THIS 16th DAY OF JUNE,
2014.
F.M. KHABO
PRESIDENT OF THE LABOUR COURT (a.i)
MS P. LEBITSA
ASSESSOR
I CONCUR
MR R. MOTHEPU
ASSESSOR
I CONCUR
FOR THE APPLICANT:
FOR THE 1st RESPONDENT:
MR N.T. NTAOTE - EMPLOYERS` FORUM
MR L.J. MOLEFI - LESOTHO WHOLESALERS,
CATERING & ALLIED WORKERS’ UNION