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[2024] ZALCJHB 163
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Penbro Kelnick (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR2118/2021) [2024] ZALCJHB 163; [2024] 7 BLLR 759 (LC) (10 April 2024)
FLYNOTES:
LABOUR – Dismissal –
Covid-19
face mask
–
Found
to be substantively unfair – Found not wearing face mask –
Final written warning issued for transgression
– Sought
harsher punishment after written warning due to alleged untruthful
explanation – Sanction of dismissal
was expression of moral
outrage and vengeance rather than sensible operational response to
risk management – Decision
to dismiss was not an appropriate
response to operational risk – Findings reasonable –
Application dismissed.
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR 2118/2021
In
the matter between:
PENBRO
KELNICK (PTY)
LTD Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
DIALE
NTSOANE
N.O
Second
Respondent
VHUTSHILO
EPHRAIM RAMPHABANA
Third Respondent
Heard:
31 August 2023
Delivered:
This judgment was handed down electronically by circulation to the
parties'
legal representatives by email and publication on the Labour
Court’s website. The date and time for hand-down is deemed to
be on 10 April 2024
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
Before
the Court are two applications. The first is an application by the
applicant (‘Penbro’)
in which it seeks an order reviewing
and setting aside the arbitration award issued by the second
respondent (Commissioner), acting
under the auspices of the second
respondent, the Commission for Conciliation Mediation and Arbitration
(CCMA).
In the award,
the Commissioner had found that the dismissal of the third respondent
(Mr Ramphabana), was substantively unfair, and
had ordered his
retrospective reinstatement, together with back-pay in the amount of
R284 569.68.
[2]
In
the second application, Ramphabana seeks an order in terms of Rule 11
of the Rules of the Court, dismissing Penbro’s review
application on account of lack of timeous prosecution. Both
applications are opposed.
Background:
[3]
Ramphabana
was employed by Penbro as a Stock Controller since January 2018. He
was dismissed on 18 June 20120 following a disciplinary
enquiry into
allegations of misconduct. The allegations arose at the height of the
Covid-19 pandemic in June 2020. It was common
cause that Ramphabana
was issued with a final written warning on 8 June 2020 for failing to
wear his face mask at the workplace.
He was again charged with
‘
Dishonesty
in that he lied to a Senior Manager, namely the Production Manager
regarding the wearing of Covid-19 PPE’.
[4]
Having
referred an alleged unfair dismissal dispute to the CCMA, and when
attempts at conciliation failed, the matter came before
the
Commissioner, resulting with the arbitration award which is the
subject of review.
The
Rule 11 application:
[5]
Ramphabana
launched the Rule 11 application on 20 February 2023. The basis of
the application was that Penbro failed to request
a set-down date
from the Registrar once the pleadings were closed. Penbro submitted
that the Rule 11 application lacked merit in
that the index and Rule
22B notice in terms of which a set-down date was requested was served
on 22 April 2022.
[6]
I
agree with the submissions made on behalf of Penbro that the Rule 11
application lacks merit. Once a party has filed a Notice
in terms of
Rule 22B of the Court’s rules and had in that notice requested
a set-down date, that party cannot be accused
of not acting on its
review application thereafter. Matters are allocated set-down dates
by the office of the Registrar once all
the requirements under the
rules of the Court are met. Thus, nothing more could have been
required of Penbro, particularly since
there were no other issues
raised regarding its compliance with any time frames set out in Rule
7A read with the provisions of
paragraphs 11 and 16 of the Practice
Manual of this Court.
[7]
To
the extent that Ramphabana complained about the delays in the filing
of the replying affidavit in the review, Penbro is correct
in
reference to paragraph 11.4.2 of the Practice Manual
[1]
,
that in the absence of a Notice of Objection within ten days of
receipt of the replying affidavit, Ramphabana lost the right to
object to the late filing of the replying affidavit. It follows that
the Rule 11 application ought to be dismissed.
The
merits of the review application:
(i)
The
evidence before the Commissioner:
[8]
The
background leading to the dismissal of Ramphabana is largely
uncomplicated. Evidence on behalf of Penbro was presented by its
Industrial Relations Officer, Mr Gerrie van Rensburg; its Operations
Manager, Mr Chris Helberg; and Mr Sydwell Ramothwala. Ramphabana
was
the only witness in his case.
[9]
The
incident leading to Ramphabana’s dismissal took place on the
Friday of 5 June 2020 during the height of Covid-19 pandemic.
Helberg
was performing his rounds in the factory and had noticed Ramphabana
at his desk in the company of Ramothwala and another
employee,
Marima. Ramphabana did not have his face mask on.
[10]
Helberg
confronted Ramphabana and asked him why he did not have his face mask
on. Helberg’s contention was that Ramphabana
lied to him in
front of subordinates, as he told him that he was eating because he
had a chronic illness, and yet there was no
food in front of him.
Helberg then told him to clock out and go home. Helberg conceded that
in his exchange with Ramphabana, he
told him that he (Ramphabana) was
‘talking shit’. He however alleged that Ramphabana came
back to the factory at some
point during that day to request his
letter of dismissal and had also insulted him.
[11]
At
the time of the incident, Van Rensburg was not at the factory.
Ramphabana had sent him an email in which he complained that Helberg
had insulted him and ordered him to leave the workplace and not to
return. Van Rensburg’s response was to tell Ramphabana
that he
was not dismissed and must return to work. He further advised him
that he should lodge a formal grievance against Helberg.
[12]
At
some point on the date of the incident, van Rensburg was then
contacted by an official from the Human Resources Department who
informed him that Ramphabana was seen not wearing a mask at work. Van
Rensburg had then informed the official that other employees
were
issued with final written warnings for similar infractions, and that
the same warning should be issued to Ramphabana.
[13]
On
8 June 2020, van Rensburg was contacted by the HR Manager and
informed that Helberg had complained that Ramphabana had lied to
him
about why he was not wearing a mask, and that this happened in front
of his subordinates. Van Rensburg’s response was
that in that
case, a disciplinary enquiry should be instituted against Ramphabana.
Ramphabana reported for duty on 8 June 2020
and was promptly issued
with a copy of a final written warning. A copy of a notice to attend
a disciplinary enquiry also followed.
[14]
Van
Rensburg further testified that Helberg was upset with Ramphabana for
not wearing his mask especially since other employees
who had tested
positive for Covid-19 were being sent home. Van Rensburg accepted
that Helberg in his exchange with Ramphabana,
had said something to
the effect like ‘shit’ to him. In the same exchange,
Ramphabana had allegedly lied to Helberg
about the reason why he was
not wearing his mask and said something to the effect that he made a
‘mistake’. According
to van Rensburg, the offence of not
wearing a mask was serious, but was compounded by Ramphabana’s
lies about why he did
not wear a mask. He contended that although
Ramphabana had said he was eating when confronted by Helberg, this
was not the case.
[15]
Ramothwala
confirmed that Helberg had approached Ramphabana in their presence
when they were at his desk. Helberg had asked Ramphabana
the reason
he did not have his mask on and the latter’s response was that
he was eating. Ramothwala however testified that
there was no food on
the desk at the time, and it is at that point an exchange took place
between Ramphabana and Helberg.
[16]
Ramphabana’s
evidence was that prior to the incident, he had heard from his
co-employees that Helberg had informed them that
he (Ramphabana) had
tested positive for Covid-19 when that was not true. He then sent an
email to van Rensburg to complain about
Helberg. Van Rensburg
informed him that he should refer the matter to the CCMA if he was
aggrieved.
[17]
Ramphabana
confirmed that Helberg had approached him at his desk when he did not
have his mask on. When Helberg enquired why he
did not have his mask
on, he had explained to him that he was taking his medication for an
injury he sustained on duty and having
his meals. Helberg’s
response was to ask him why he was ‘doing the nonsense’
of not wearing a mask. He had then
put back his mask, and Helberg
further told him that he was ‘talking nonsense and doing shit’,
and that he should take
his things and leave the factory and not to
come back.
[18]
He
confirmed that he sent van Rensburg an email about what Helberg had
said to him and was issued with a final written warning on
8 June
2020, and a copy of a notice to attend a disciplinary enquiry on 9
June 2020.
[19]
He
had denied that he had refused to put on his mask when Helberg told
him to do so and testified that when he did not have his
mask on, he
had taken his medication and was eating his food which he had in his
drawer. He had denied having lied to Helberg or
insulted him, and
that the latter had instead used the ‘f word’ when
addressing him. He contended that if he had indeed
insulted him, he
(Helberg) would have laid another charge against him.
(ii)
Commissioner’s
findings
:
[20]
The
Commissioner accepted as being common cause that Helberg found
Ramphabana on his desk without a face mask. At the time, there
were
the latter’s subordinates with him. The Commissioner accepted
that during the exchange, Helberg told Ramphabana that
he was causing
‘shit’ and had ordered him to go home.
[21]
The
Commissioner concluded that Penbro failed to prove that Ramphabana
was dishonest when he told Helberg that at the time he was
found
without a mask, he had just finished eating and taken his tablets,
and it was irrelevant whether there was no food visible
on
Ramphabana’s desk at the time. Against these and other
considerations, the Commissioner concluded that Ramphabana ought
to
be reinstated.
(iii)
Grounds
of review and evaluation
:
[22]
Amongst
the grounds of review raised was that the Commissioner did not apply
his mind to the provisions of Rule 25(6)
[2]
of the CCMA Rules when granting Ramphabana the right to be
represented by a person not contemplated under Rule 25(1)(
b
).
An application in terms of Rule 31 was filed by a Mr Llala Phoshoko,
a chairperson of a non-profit organisation (Thusanang Education
and
Legal Centre), to represent Ramphabana, which application Penbro had
opposed.
[23]
It
is apparent that the Commissioner had regard to the provisions of
Rule 25(6), which allowed representation by persons other than
those
contemplated in Rule 25(1)(
b
).
The Commissioner further had regard to the parties’ comparative
abilities and the prejudice to them should the application
not be
granted. He concluded that Ramphabana was a lay person, whilst Penbro
was represented by van Rensburg, who was a seasoned
industrial
relations officer. The Commissioner further accepted that Phoshoko
belonged to a registered NGO which fell under the
oversight of
government. He concluded that it would thus be fair to allow Phoshoko
to represent Ramphabana.
[24]
Penbro
contends that the Commissioner failed to apply his mind to the
requirements to be met, and also failed in his duties by assessing
only two factors in allowing representation. It was further contended
that Phoshoko was disqualified as he had admitted that he
was
remunerated ‘in some fashion by Ramphabana’. It is not
clear where the latter contention arises from, as it is
not evident
from the Rule 31 application and answering affidavit that were before
the Commissioner.
[25]
Regarding
the ruling, it is my view that there is no basis for a finding that
by allowing Phoshoko to represent Ramphabana, this
had rendered the
award reviewable or that the ruling was wrong. The mere fact that the
Commissioner did not address all the requirements
under Rule 25(6)
does not render the ruling wrong. Rule 25(6)(a) in any event enjoins
a commissioner to also consider
whether
it is unreasonable to expect the applicant party to deal with the
dispute without representation, after considering the
factors set out
in rule 25(1)(
c
)(ii)(
a
)
to (d).
T
here
is no requirement that all these factors must be considered. Penbro
does not indicate why in view of the conclusions made regarding
the
comparative abilities of the parties and any prejudice to them, the
Commissioner could have been wrong. It follows that there
is no merit
that the Commissioner’s ruling on representation was wrong or
that he had exceeded his powers.
[26]
Regarding
the merits, the gist of the matter according to the submissions made
on behalf of Penbro, was whether Ramphabana had lied
to Helberg when
he was questioned as to the reason, he did not have his mask on. To
the extent that the Commissioner had found
in the negative, it was
submitted that this made the award reviewable, as no reasonable
decision maker in his position would have
come to that conclusion.
[27]
The
test on review is well-known as buttressed in
Duncanmec
(Pty) Limited v Gaylard NO and Others
[3]
.
The
enquiry into
the
reasonableness of a decision involves consideration of the merits,
and it has been said that unreasonableness would warrant
interference
only if the impugned decision is of the kind that could not be made
by a reasonable decision-maker. It was added that
is not the task of
reviewing Court
to
evaluate
the reasons provided by the arbitrator with a view of determining
whether it agrees with them. The principal enquiry is
whether the
award itself meets the requirement of reasonableness, in the sense
that there are reasons supporting its conclusions.
[28]
In
Makuleni
v Standard Bank of South Africa Ltd and Others
[4]
,
it
was further reiterated that;
‘
The
court asked to review a decision of commissioner must not yield to
the seductive power of a lucid argument that the result could
be
different. The luxury of indulging in that temptation i.e. reserved
for the court of appeal. At the heart of the exercise is
a fair
reading of the award, in the context of the body of evidence adduced
and an even-handed assessment of whether such conclusions
are
untenable. Only the conclusion is untenable is a review and setting
aside warranted’.
[29]
Having
had regard to the evidence presented before the Commissioner and his
conclusions in that regard, it is my view that Penbro
has in the
light of the grounds upon which a review is sought, clearly
blurred
the distinction between an appeal and a review, as it is apparent
that it seeks that the Court should make a finding that
the
Commissioner ought to have come to a different conclusion, because it
does not agree with the conclusions reached in the award.
Penbro went
at length in dissecting each of the witnesses’ evidence in
finding fault with the conclusions made by the Commissioner,
and why
it ought to be said that his conclusions are unreasonable. This
approach is untenable in that
t
he
review Court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with
each
of those factors, and determine whether a failure by the arbitrator
to deal with it is sufficient to set the award aside.
This piecemeal
approach is improper in that the task of the reviewing Court is to
consider the totality of the evidence and decide
whether the decision
made by the arbitrator is one that a reasonable decision maker could
make, based on the evidence adduced
[5]
.
[30]
The
facts of this case as I have already indicated, are largely
uncomplicated to the extent that it was common cause that Ramphabana
was found without a mask. The real issue contrary to Penbro’s
contentions, is not simply whether Ramphabana had lied when
asked the
reason why he did not have his mask on. The principal enquiry is
whether from an assessment of the facts as a whole,
it can be said
that there was a fair reason to dismiss him, and whether on those
facts, it can be said that the Commissioner’s
conclusions fall
outside a band of reasonableness
[6]
.
[31]
In
this case, and without being bogged down by a conflation of issues as
both the Commissioner and Penbro
had done, it was common cause that
Ramphabana was seen without a face mask at the workplace on 5 June
2020. For these types of
transgressions, it was common cause from the
evidence that the offender would be issued with a final written
warning. A final written
warning was indeed issued to Ramphabana on 8
June 2020.
[32]
To
the extent that Ramphabana was issued with a final written warning
for that transgression, it is accepted from a long line of
authorities as referred to
SAMWU
obo A N Malatsi v South African Local Government Bargaining Council
and Others
[7]
,
that
if an employee has already been disciplined for an offence, it does
not preclude an employer from holding another disciplinary
enquiry
and imposing a more severe sanction or dismissing the employee for
the same offence, arising from the same set of circumstances.
In the
end however, it is fairness that will determine whether the employer
is justified in instituting a second hearing on the
same set of
facts
[8]
.
[33]
From
the facts, the Court will accept that when Van Rensburg on 5 June
2020 instructed an official in the
HR section to issue a final
written warning to Ramphabana for not wearing his face mask, it must
have been Helberg that had laid
a complaint. At that stage Helberg
must have known of the details of the offence when he reported it to
HR. As to the reason he
did not disclose the details at that time in
view of the fact that he considered the offence serious because
Ramphabana allegedly
lied to him is not clear.
[34]
However,
even if after the final written warning was issued, Helberg had
suddenly felt compelled to seek
a harsher penalty against Ramphabana
on the basis that the latter’s explanation for not wearing his
face mask was untruthful,
the question is whether upon a
consideration of fairness, a second hearing was justified. The
enquiry however does not end at that
point, but is extended to
whether arising from the second enquiry where it was justified, a
sanction of dismissal was appropriate.
[35]
It
is further apparent from the facts that during Helberg’s
exchange with Ramphabana, he was clearly
upset as attested to by Van
Rensburg. It is indeed understandable that going back in time at the
height of the pandemic, any person
would have been upset with anyone
without a face mask at the workplace or any public places. What is
however not acceptable was
for a senior manager in the position of
Helberg to express that anger to any employee in unsavoury terms
accompanied by invectives
as he had done. Equally so, if indeed
Ramphabana had insulted Helberg as he had alleged, it is inexplicable
as to the reason he
had not laid a further charge, as this was even
more serious.
[36]
Against
the above observations, and as I understood the overall evidence from
the record, even if the Court
were to accept that Ramphabana had
admitted that he made a mistake in not having his face mask on, or
had proffered an explanation
which was considered as false and
necessitating a further enquiry, this on its own did not justify a
harsher sanction than he had
already received.
[37]
It
has long been stated in
De
Beers Consolidated Mines Ltd v CCMA & others
[9]
,
that a dismissal should not be an expression of moral outrage or an
act of vengeance, but rather should be a sensible operational
response to risk management in the enterprise. Furthermore, inasmuch
as Ramphabana was charged for
dishonesty
in that he lied to Helberg, it has also been said in
De
Beers
that
the seriousness of dishonesty, and whether it can be classified as
gross or not, depends not only or even mainly on the act
of
dishonesty itself, but on the way in which it impacts on the
employer's business. In other words, it does not imply that every
act
or misconduct involving dishonesty will lead to a dismissal. Worst
still, a misconduct cannot be gross simply based on the
subjective
opinion or feelings of a manager. The gross nature of misconduct
necessitating a dismissal can only be gleaned from
the objective
facts.
[38]
In
the present instance, even if the Court were to accept that
Ramphabana had lied about the reason why
he did not have his face
mask on and that this justified a second enquiry, it is my view that
a sanction of a dismissal was clearly
an expression of moral outrage
and vengeance, rather than a sensible operational response to risk
management at the workplace.
This was so on the basis of the common
cause facts that Helberg was upset at Ramphabana to the extent that
not only did he address
him in unsavoury language, but he also told
him that he should leave the workplace and not to come back.
[39]
Penbro’s
initial response to the offence was to issue a final written warning
for the offence, which
appeared to be its consistent approach for
such offences at the workplace. The mere fact that Helberg was upset
at the time and
unhappy with the sanction for whatever reason, could
not have made the alleged misconduct of dishonesty gross, to attract
the ultimate
sanction. Equally so, t
he
misconduct in question cannot be said to have harmed Penbro in any
manner since employees were issued with final written warnings
and
permitted to return to work, notwithstanding the dangers of Covid-19
pandemic at the time. One cannot speak of Penbro’s
decision to
dismiss being an appropriate response to an operational risk posed by
Ramphabana.
[40]
Penbro
might be aggrieved with the reasoning of the Commissioner and the
manner with which he had treated the evidence. However,
in
the context of the body of evidence and an even-handed assessment of
the award,
the Court
is satisfied that the ultimate outcome reached by the Commissioner
falls within a band of reasonable decisions that another
commissioner
would have arrived at. It follows that the review application ought
to be dismissed.
[41] In
regard to costs, the parties sought costs orders against each other.
In the light of the conclusions
reached in this judgment and further
having had regard to the requirements of law and fairness, it is my
view that each party must
be burdened with its own costs.
[42] Accordingly,
the following order is made:
Order:
1. The
third respondent’s Rule 11 application is dismissed.
2. The
application to review and set aside the arbitration issued by the
second respondent under case number
GATW7036 – 20 is dismissed.
3. Each
party is to pay its own costs in respect of both the Rule 11 and
review applications.
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
REPRESENTATION:
For
the Applicant: Adv.
W.P. Bekker, instructed by Da Silva Attorneys
For
the Third Respondent: Adv.
G.N. Nsele, instructed by Ernest Nemusimbori
Attorneys Inc
[1]
Paragraph
11.4.2
of the Practice manual reads;
‘
Where
the respondent or the applicant has filed its opposing or replying
affidavits outside the time period set out in the rules,
there is no
need to apply for condonation for the late filling of such
affidavits unless the party upon whom the affidavits are
served
files and serves a Notice of Objection to the late filing of the
affidavits. The Notice of Objection must be served and
filed within
10 days of the receipt of the affidavits after which time the right
to object shall lapse.’
[2]
Which provides;
‘
Despite the
provisions of this Rule, but subject to the provisions of sub-rule
(1)(f), the commissioner may, on application brought
in accordance
with rule 31, allow a person not contemplated in sub-rule (1) to
represent a party at arbitration proceedings before
the commission,
after considering-
(a)
whether it is unreasonable to expect the applicant party to deal
with the dispute without representation, after
considering the
factors set out in sub-rule 1(c)(ii)(a) to (d);
(b)
the reason why a person contemplated in Rule 25(1)(b) cannot
represent the applicant party, which includes
affordability, if
applicable;
(c)
the ability of the proposed representative to meaningfully represent
the applicant;
(d)
whether the proposed representative is subject to the oversight and
discipline of a professional or statutory
body;
(e)
whether the proposed representative will contribute to the
fairness of the proceedings and the expeditious
resolution of the
dispute;
(f)
prejudice to the other party; and
(g)
any other relevant factors.’
[3]
[2018] ZACC 29
;
2018 (11) BCLR 1335
(CC);
[2018] 12 BLLR 1137
(CC);
2018 (6) SA 335
(CC); (2018) 39 ILJ 2633 (CC) at paras 41 –
43.
[4]
[2023] ZALAC 4
; (2023) 44 ILJ 1005 (LAC);
[2023] 4 BLLR 283
(LAC) at
para 4.
[5]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
[2013] ZALAC 28
;
[2014]
1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at para 13
[6]
See
S
idumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
;
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC)
at para 79, where it was
held;
‘…
a
commissioner has to determine whether a dismissal is fair or not. A
commissioner is not given the power to consider afresh what
he or
she would do, but simply to decide whether what the employer did was
fair. In arriving at a decision a commissioner is
not required to
defer to the decision of the employer. What is required is that he
or she must consider all relevant circumstances.’
[7]
[2023] ZALCJHB 63; [2023] 6 BLLR 581 (LC),
[8]
At
para 32.
[9]
[2000]
9 BLLR 995
(LAC) at para 22.