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[2024] ZALCJHB 104
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Working On Fire(Pty) Ltd v Mafisa and Others (JR2132/20) [2024] ZALCJHB 104 (6 March 2024)
FLYNOTES:
LABOUR – Dismissal –
In
absentia – Without hearing – Dismissal found
procedurally and substantively unfair – Review –
Misconduct – Challenging authority of senior management in
open letter – Applicant by its free admission determined
that respondent be dismissed without a hearing and in his absence
– Procedural fairness required that further notice
should
have been given to employee – Dismissal in absence of
supporting evidence – No irregularity in award –
Application dismissed.
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR2132/20
In
the matter between:
WORKING
ON FIRE (PTY) LTD
Applicant
and
NUMSA
obo JOHNSON MAFISA
First
Respondent
COMMISSIONER
MOLOI N.O.
Second
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION Third
Respondent
Heard:
10 January 2024
Delivered:
06 March 2024
(This
judgment was handed down electronically by circulation to the
parties’ legal representatives, by email, publication
on the
Labour Court’s website and released to SAFLI. The date on which
the judgment is delivered is deemed to be 06 March
2024.)
JUDGMENT
BUIRSKI,
AJ
Introduction
[1]
This is a very peculiar tale. It begins with an employee, the First
Respondent,
Johnson Mafisa (Mafisa) who, for reasons which are
neither disclosed nor fully comprehensible, decided to challenge the
authority
of his employer, the Applicant, in the most open,
confrontational and insubordinate way. Mafisa, unhappy with the
internal appointment
of a certain regional manager, one Mr Lazola
Banzana, wrote an email which, according to evidence led at the
arbitration hearing,
amounted effectively to an open letter addressed
to all staff of the Applicant, senior management and new appointees
alike. In
this email, Mafisa complained about the appointment of Mr
Banzana and in so doing, he questioned the judgment and integrity of
both senior management and Mr Banzana. Management of the Applicant
was naturally unhappy about receiving this letter.
[2]
The Applicant, instead of dealing with the matter appropriately,
decided
to dismiss Mafisa
in absentia
and without a hearing
and it turned out, in the absence of any supporting evidence. Mafisa,
unhappy about his dismissal referred
this matter to the Commission
for Conciliation, Mediation and Arbitration (CCMA). The matter came
before the Second Respondent
(Commissioner) who, on 24 November 2020,
issued an award in which he not surprisingly found that the dismissal
of Mafisa was both
procedurally and substantively unfair and who, in
so doing, ordered the Applicant to reinstate Mafisa with full
retrospective effect
including backpay in an amount of R244 633.99.
In passing, the Commissioner noted that “
to further compound
the problem for the Respondent [Applicant] in this matter it was
hinted … that [among] the four people
who were involved in
deciding that the Applicant [Mafisa] be dismissed was... Banzana, the
person who was at the centre of the
charge…”
[3]
This is the arbitration award which the Applicant asks me to review
and
set aside.
[4]
For reasons which should be already apparent, I am unable to do so.
My
full reasons, however, follow.
Background
[5]
The Applicant, Working on Fire (Pty) Ltd, is a subsidiary of Kishungu
Holdings and is a private firefighting company. It has bases in all
of South Africa’s provinces. The Applicant, pursuant to
a
tender process, assists the Department of Environmental Affairs in
firefighting programmes. The Working on Fire programme is
owned by
the Department of Environmental Affairs.
[6]
Mafisa, the employee has already been referred to. He worked at the
Applicant’s
base in Nelspruit, Mpumalanga as a Regional
Manager.
[7]
The facts of this matter, which are set out in the paragraphs below,
are
gleaned from my reading of the pleadings and the arbitration
record, including the award of the Commissioner which makes a fair
summary of those essential facts.
[8]
The Commissioner in his award begins his analysis of evidence by
noting
that it is common cause that three charges of misconduct were
brought by the Applicant against Mafisa and that these were triggered
by the already mentioned email which Mafisa wrote to all staff on 11
October 2019. In the email, written in response to the Applicant’s
announcement of new appointments to various positions in the
workplace, Mafisa disputed the legitimacy and wisdom of the
appointment
of Mr Banzana who had been appointed as General Manager
for the Free State province.
[9]
Evidence as to the contents of this email was adduced in the
arbitration
hearing before the Commissioner, and this evidence need
not be dwelt on here, save to state that the email amounts to a
strident
attack on the management competence of both senior
management at Applicant and Mr Banzana, the newly appointed General
Manager
for the Free State.
[10]
If the
Applicant had based its decision to dismiss on the contents of this
letter and on the fact that Mafisa published this letter
to the
Applicant’s entire workforce, evidence which, it is reiterated,
was for the first time adduced in the arbitration,
then the
Applicant, in terms of common law, might have had reason to justify
its statement made in Mafisa’s letter of termination
dated 27
November 2019 that “…
Working
on Fire has decided to terminate your services with immediate effect…
the reason being that the trust relationship
has irretrievably broken
down and that your continued employment has become intolerable
.”
[1]
[11]
That, however, is not what happened in this matter.
[12]
Instead what happened was the following. On the very same day that he
wrote this letter,
11 October 2019, Mafisa was suspended. The
Applicant later summoned him to a disciplinary hearing on 1 November
2019 per a disciplinary
hearing notice that sets out details of three
charges levelled against him, including one with respect to the
writing of the email
referred to above and where it was indicated
that Mafisa’s conduct in writing the email was a direct
challenge to the authority
of both senior management and that of Mr
Banzana. Mafisa advised the Applicant that he was unable to attend
this hearing as he
had been booked off sick. Another hearing was duly
arranged for 27 – 29 November 2019 and the Applicant on 25
November 2019
attempted to deliver the notice of this revised hearing
to Mafisa personally but was unable to do so. The Commissioner refers
to
an endorsement note penned at the foot of the revised disciplinary
hearing notice which read “
we didn’t find Mafisa at
his house”
and notes that according to Mafisa’s wife,
Mafisa had been admitted to Corona Hospital since18 November 2019.
[13]
On the first appointed day of the new hearing, 27 November 2019,
Mafisa not surprisingly
did not pitch up.
[14]
The consequence was that the Applicant by its free admission as
contained in the founding
papers in this review application
determined that “
on the 27 November 2019 the First
Respondent [be] dismissed without a hearing and in his absence
”.
[15]
The full significance of this admission cannot be underplayed.
[16]
The first implication is for procedural fairness.
[17]
The Commissioner found this dismissal was procedurally unfair. I
agree.
Analysis
[18]
The
Commissioner expressly approached the fairness of the dismissal
against the backdrop of section 188 of the Labour Relations
Act
[2]
(LRA) which section in relevant part provides that “
a
dismissal… is unfair if the employer fails to prove (a) that
the reason for dismissal is a fair reason - (i) related to
the
employee’s conduct … and (b) that the dismissal was
effected in accordance with a fair procedure
”.
The Commissioner significantly added “
furthermore
section 188 (2) of the LRA enjoins me as the Commissioner seized with
this dispute to take into account any relevant
code of good practice
issued in terms of the LRA
”.
Procedural
fairness
[19]
The
relevant Code of Good Practice; Dismissal
[3]
provides at items 4(1) and 4(4) that “
normally
the employer should conduct an investigation to determine whether
there are grounds for dismissal”
and
that it is only “
in
exceptional circumstances, if the employer cannot reasonably be
expected to comply with these guidelines, [that] the employer
may
dispense with a pre-dismissal procedure
.”
[20]
No exceptional circumstances were present here and the Commissioner
cannot be faulted for
reasoning that procedural fairness, at a
minimum, required that further notice should have been given to
Mafisa in this instance.
I cannot fault his following reasoning, in
particular, at paragraph 38 of the arbitration award wherein he
stated that:
‘
[38]
Even though the Respondent had set the matter down for three days
namely from 27 – 29 November
2019, they did not keep to their
own dates…A reasonable employer in the shoes of the Respondent
would have phoned the Hospital
in question to find out whether or not
he was hospitalised… A simple telephone call to Corona
Hospital would have been enough
for the Respondent to satisfy itself
whether or not the Applicant was indeed still hospitalised… It
was procedurally unfair
on the part of the Respondent to have
dismissed the Applicant on the very first day of a hearing that had
been set down for three
days without having taken any steps to ensure
firstly that the Applicant was aware of the date of the hearing and
secondly without
having satisfied itself whether or not the Applicant
was hospitalized.’
Substantive
fairness
[21]
The second implication of the Applicant’s admission as to the
nature of this dismissal,
(one
in absentia
and without a
hearing), lies with respect to substantive fairness.
[22]
By review ground one, Applicant alleges that the Commissioner “
placed
inordinate weight on the fact that the Applicant did not conduct a
hearing
”, and seemingly thereby suggests that the
Commissioner ought to have recognized that its’ manifest
failings in procedure
notwithstanding, the Applicant, from the
perspective of substantive fairness, nonetheless continued to have
good reason to dismiss.
[23]
The
Applicant is wrong. Quite apart from the fact that it is of course
well known that procedural unfairness may result in substantive
unfairness
[4]
, there is no
warrant for such conclusion on the facts herein.
[24]
The common
cause fact that Mafisa was dismissed
in
absentia
and in the absence of a disciplinary hearing, need not necessarily or
inevitably have meant that Mafisa was to be dismissed in
the absence
of evidence. Ignoring for the moment the question of procedural
unfairness, had there been a hearing
in
absentia
that was designed to establish “
that
the reason for dismissal is a fair reason related to the employee’s
conduct”
[5]
,
then one would have expected that the Applicant, at a minimum, would
have been able to produce a record that was designed to show
and
prove that the reason for dismissal was supported by facts and
evidence.
[25]
The Applicant, however, could not do so. This issue was indeed
clarified and answered to
the satisfaction of the Commissioner during
the arbitration. The Commissioner recalled the Applicant’s
primary witness Mr
Nemadzivhanani, (the latter of whom is also the
deponent to its affidavits in this review application), and posed to
him certain
questions designed to establish whether the Applicant
possessed minutes of the default hearing that took place in Mafisa’s
absence. Mr Nemadzivhanani in answer made it quite clear that no such
minutes existed. He answered unequivocally and repeatedly
that “
there
was no hearing that I can think of… there was no hearing that
I can refer to”
.
[26]
This
unequivocal admission by Mr Nemadzivhanani disposes of both the
so-called first and third grounds of review – namely
that the
Commissioner failed to apply his mind to the material facts before
him and that the Commissioner misconstrued the evidence
of
Nemadzivhanani and that somehow the Applicant, when dismissing Mafisa
on 27 November 2019, did so with “
evidence
… on … hand
”.
The Applicant had no such evidence on hand and the Commissioner did
not misconstrue any evidence in this regard. Even if
it be assumed as
correct that the Applicant, at the time of the dismissal, possessed
both a copy of the charge sheet and the offending
letter referred to
above, there is no suggestion that the decision to dismiss was taken
after the hearing of any evidence or testimony
either on this issue
or at all. There is, in short, no evidence to suggest that the
allegation made in the letter of dismissal
that “
the
trust relationship has irretrievably broken down and that your
continued employment has become intolerable
”
was substantiated by any evidence led at the time of dismissal. It is
important to note that it has long been trite that
a dismissal based
on a breakdown in the trust relationship and made in the absence of
evidence is unfair and inappropriate.
[6]
[27]
A reading of the arbitration record thus proves that when the
Applicant dismissed Mafisa
as it did on 27 November 2019, it not only
dismissed him in his absence and without a hearing, but that it did
so in the absence
of any supporting evidence.
[28]
The impact of this failure to lead evidence was not incorrectly noted
by the Commissioner
who recognized that this failure was such as to
render this dismissal substantively unfair. Again I can do no better
than quote
the award of Commissioner:
‘
Whoever
decided that the Applicant should be dismissed without having heard
any evidence that was needed to be adduced that the
Applicant indeed
had committed the offences that he was accused of. The way that the
Respondent handled this aspect of the dispute
supports the inference
that the dismissal of the Applicant was a foregone conclusion by the
time the charges were brought against
him. The argument of the
Respondent that the trust relationship was broken beyond repair has
no foundation in the evidence as no
evidence whatsoever was led at
the hearing. It must not be forgotten that the fairness or otherwise
of a dismissal is determined
on the basis of the reasons/facts relied
on by the employer at the time of dismissal –
Fidelity Cash
Management Service v CCMA and others
[200]
3 BLLR 197
(LAC).’
[29]
In the premises, the Commissioner did not err in finding the
dismissal to be substantively
unfair. The record shows
that the Commissioner in doing so and in arriving at this conclusion
- and contrary to what
Applicant alleges in its first ground of
review – fully applied his mind to the facts before him.
[30]
It is of
course of no assistance to the Applicant to plead, as it does, on the
basis of the proposition that the proceedings before
the Commissioner
are a
de
novo
hearing, that the Applicant led evidence in support of all three
charges in the arbitration hearing before the Commissioner. This
evidence is irrelevant. It was not led at the disciplinary hearing.
T
he
Commissioner was accordingly not entitled to determine the fairness
of Mafisa’s dismissal on the basis of reasons for the
dismissal, upon which the Applicant did not rely at the time of his
dismissal.
[7]
A
further ground of unfairness
[31]
In further support of the Commissioner’s central finding of
unfairness in the decision
to dismiss, the Commissioner, towards the
end of his award, observed that it appears that Mr Banzana was
amongst the panel of four
people who were involved in deciding on
Mafisa’s fate and dismissal. Banzana was of course the
very person whose competency
as a manager Mafisa was said to have
challenged in his email of 11 October 2024 and who was as such
centrally involved in the impugned
conduct. When this matter was
argued before me this particular aspect of the matter was confirmed
by counsel and it is, in any
event, supported by passages from the
record.
[32]
The
Applicant’s breach of the
nemo
judex in propria causa
rule
is thus an additional and crucial reason why Mafisa’s dismissal
was found to be unfair and again the Commissioner’s
reasoning
cannot be questioned in this regard. This rule, one of the
fundamental principles of natural justice, requires that an
affected
party must be heard by an impartial and unbiased tribunal and that a
judge or decision-maker cannot be judge in his own
cause. It is trite
that a breach of this rule vitiates the entire proceedings, with the
result the proceedings will be quashed
and set aside
.
[8]
Remaining
grounds of review
[33]
It remains to observe that the only outstanding grounds of review are
of no moment in this
matter.
[34]
Firstly, the alleged failure on the part of the Commissioner to
provide guidance to the
Applicant is a ground that not only appears
weak in principle but when analysed, is neither valid nor relevant.
It is alleged by
the Applicant that the Commissioner at the
arbitration failed to guide the Applicant on the need to lead
evidence on charge 3.
It should by now be apparent that any evidence
adduced by the Applicant at the arbitration to substantiate the
charges on which
Mafisa was allegedly dismissed was irrelevant. As
already noted, as Mafisa’s alleged culpability on these charges
did not
constitute the reason for his dismissal,
the
Commissioner was quite simply not entitled to determine the fairness
of Mafisa’s dismissal on the basis of these reasons
which were
not advanced at the time of dismissing the Mafisa
. To
reiterate, the evidence before the Commissioner discloses that the
Applicant dismissed Mafisa without reason.
[35]
Secondly
and in the context of this matter, the alleged tolerance by the
Commissioner of leading questions being posed by Mafisa’s
legal
representative to Mafisa when adducing evidence, is at best a blemish
or fault in process, which even if true, could not
have any impact on
the outcome of this matter.
[9]
Conclusion
[36]
In all the
circumstances, this award is not one that a reasonable decision-maker
could not reach on the material before him,
[10]
and this review application thus falls to be dismissed.
[37]
In the premises, the following order is made:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
P
Buirski
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Tamsanqa Mila of Cliffe
Dekker Hofmeyr Inc
For
the Respondent:
Kwezi Mdladlamba of NUMSA
[1]
cf
Council
for Scientific and Industrial Research v Fijen
1996 (2) SA 1
(A) at 9H.
[2]
Act
66 of 1995, as amended.
[3]
Schedule
8 of the LRA.
[4]
See
Woolworths
(Pty) Ltd v South Africa Commercial, Catering and Allied Workers
Union and others
[2017] 12 BLLR 1217
(LAC) at para [22].
[5]
See section 188 (1)(a)(i) of the LRA.
[6]
Edcon
Ltd v Pillemer NO and others
[2009] ZASCA 135
;
[2010] 1 BLLR 1
(SCA) (
Edcon
)
at paras [22] – [23].
[7]
cf
Palluci
Home Depot (Pty) Ltd v Herskowitz and others
[2014] ZALAC 81
;
[2015] 5 BLLR 484
(LAC) at para
[46]
.
[8]
See
generally
Van
Huysteen v Minister of Environmental Affairs & Tourism
1996 (1) SA 283
(C) 304I-305C;
SACCAWU
and others v President of the Industrial Tribunal and Another
[2001]
2 All SA 117
(A)
at para [10];
Lesapo
v Northwest Agricultural Bank and another
1999
(10) BCLR 1195
(B)
at 1201;
Brink
v Baston, Diedericks and Horak
NN. O
1942
TPD 127
at 132, see also
Council
of Review, SADF & ors v Mönnig & others
1992 (3) SA 482
(A) 495A-D
[9]
Head
of the Department of Education v Mofokeng and others
[2014]
ZALAC 50
;
[2015]
1 BLLR 50
(LAC)
at paras [30] – [33].
[10]
Sidumo
& another v Rustenburg Platinum Mines & others
2008
(2) SA 24
(CC) at para [110];
Edcon
supra
at
[23].