Glaxo Welcome SA (Pty) Ltd v Mashaba and others (JA19/00) [2001] ZALAC 4 (4 January 2001)

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[2001] ZALAC 4
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Glaxo Welcome SA (Pty) Ltd v Mashaba and others (JA19/00) [2001] ZALAC 4 (4 January 2001)

28
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
(HELD JOHANNESBURG)
CASE NO: JA19/00
In the matter between
GLAXO WELCOME SA (PTY) LTD
APPELLANT
AND
BONGI EUDONCIA MASHABA 1
ST
RESPONDENT
G. SHAKOANE N.O 2
ND
RESPONDENT
CHAIRPERSON : GOVERNING BODY 3
RD
RESPONDENT
OF THE CCMA
JUDGEMENT
ZONDO JP
Introduction
[1] The appellant appeals to this
Court against a judgement of the Labour Court which was given by
Marcus AJ. The judgement was
given in a review application which
had been brought by the appellant in that Court against the present
respondents concerning
an arbitration award which was issued by the
second respondent in arbitration proceedings between the appellant
and the first
respondent. Those arbitration proceedings had been
aimed at the resolution of a dispute between the appellant and the
first respondent
about the fairness or otherwise of the first
respondent’s dismissal by the appellant from the latter’s
employment. The review
application sought to set aside the award
that was issued pursuant to the arbitration proceedings. Leave to
appeal was granted
by the Court a quo.
The back ground
[2] The appellant is a registered
company. It carries on business as a manufacturer and distributor of
pharmaceuticals at Halfway
House, Midrand, Gauteng. The first
respondent is a former employee of the appellant. The second
respondent is a commissioner of
the CCMA. The third respondent is
the chairperson of the Governing Body of the CCMA. The first
respondent was employed by the appellant
in May 1995 as an assistant
human resources officer. In 1996 she was made a human resources
officer. Her duties within the appellant’s
human resources
department included the administration of
employee files, loans
administration, liaison with brokers on
employee benefit applications,
preparation of employment contracts, administration in regard to
recently employed employees, recruitment
of shopfloor temporary
staff and the maintenance of records thereanent as well as dealing
with housing loans and medical aid queries.
[3] On the 5
th
and the
9
th
of June 1997 the appellant convened a disciplinary
inquiry to hear certain charges of misconduct that had been
preferred by the
appellant against the first respondent. There were
five charges that she faced in the disciplinary enquiry. They were:.
1" the unauthorised and
insubordinate distribution of a questionnaire ostensibly to evaluate
department performance and calculated
to
create the false
impression that it was under taken as a segment of a bona fide
survey whereas it was intended simply to provide
material for her
defence at the previous disciplinary enquiry.
The
negligent re-hiring of temporary employees who had previously been
dismissed for the offence of trashing the factory floor.
As
a member of the Human Resources Department, creating obstacles to
the proper running of the disciplinary process by:.
3.1 insisting on outside representation at an appeal knowing this to
be contrary to established policy;
3.2 failing to comply with the request that an appeal be supported
by written motivation;
3.3 relying upon the aforesaid conduct to enter into dispute with
the company;
Continuing
argumentative and insubordinate conduct towards managers of the
company;
Compounding
the transgression of an employee by facilitating a breach of
procedures in relation to the rehiring of informal workers.”
[4] The complainant against the first respondent in the disciplinary
inquiry was Ms Roslan, the first respondent’s immediate
supervisor. The chairman of the disciplinary inquiry concluded the
disciplinary inquiry in the following terms:
“
Due to the extremely sensitive and confidential nature of the
position filled by [the first respondent]
and her conduct
generally, made me come to the conclusion that due to the continuous
and repeated unacceptable performance and
workplace behaviour
resulting in irreparable damage the trust relations and credibility
within the department and the company as
a whole, I have no
alternative but to terminate [the first respondent’s] services
with immediate effect.”
The first respondent was aggrieved by her dismissal. A dispute arose
between the appellant and the first respondent about the fairness
or
otherwise of the first respondent’s dismissal. She referred the
dispute to the CCMA for conciliation. Attempts at conciliation
failed. She then requested that the dispute be arbitrated by the
CCMA. The CCMA appointed the second respondent to arbitrate the
dispute.
The arbitration
[5] In the arbitration proceedings the person whom one would have
thought the appellant would have called to give evidence as its
main
witness, namely, Ms L. Roslan was, surprisingly, not called at all
and yet, she was central to the charges in the disciplinary
inquiry.
In the arbitration proceedings the appellant only called Mr Ronald
Mnguni, who was its human resources manager, Mr Karel
van Breda, a
security manager in the appellant and one Mr Msiza, a warehouse
manager. In his arbitration award the second respondent
indicated
the relevance of the evidence of each of the appellant’s
witnesses thus: He said that Mr Mnguni’s evidence was aimed
at
confirming the charges against the first respondent. He said that Mr
Mnguni’s personal knowledge was limited to a few aspects
and he
had no personal knowledge of the greater part of the evidence he
tendered with the result that such evidence was hearsay.
In fact he
said Mr Mnguni read from a prepared statement when he gave evidence.
According to the second respondent, Mr Van Breda’s
evidence
related to the charge that the first respondent had negligently
re-hired shop floor temporary employees who had previously
been
dismissed by the appellant for trashing the factory floor. With
regard to Mr Msiza’s evidence, the second respondent stated
that
Mr Msiza’s evidence was limited to saying that there were times
when the relationship between him and others, on the one
hand, and
the first respondent, on the other, had not been good. In this
regard Mr Msiza had cited two incidents in support of
his evidence.
The one was an incident when he had directed certain “
medical
aid clients”
to the first respondent for advice and they had
come back unhappy with the first respondent’s advice. The other
was an incident
when the first respondent had refused to hire her
uncle on the basis that to do so would breach the appellant’s
policy on the
hiring of relatives.
[6] The first respondent testified on her own behalf in the
arbitration proceedings. She dealt with all the charges that had

formed the basis of her dismissal. The second respondent then
analysed all evidence that had been given before him. In his award
he came to the conclusion that the dismissal of the first respondent
by the appellant had been both substantively and procedurally
unfair. He ordered the appellant to reinstate the first respondent
with full retrospective effect and without any loss of benefits
that
the first respondent would have enjoyed had she not been dismissed.
The review in the Court a quo
[7] Subsequent to the issuing of the arbitration award by the second
respondent, the first respondent brought an application in
the Court
a quo for an order making the arbitration award an order of court.
The appellant responded to this by bringing an application
to review
and set aside such award. Pending the outcome of such review
application, the appellant asked that the application to
make the
award an order of the Court a quo be stayed.
[8] The review application was partially successful in the Court a
quo. The order that was made by the Court a quo was in the
following terms:-
“
6.4.1 That part of the second respondent’s arbitration award
delivered on the 19
th
October 1998 under case no GA 10899
(“ the arbitration award”) that dealt with the allegations
against the first respondent
on the charge of creating obstacles to
the proper running of the disciplinary process is reviewed and set
aside.
6.4.2 The matter is referred back to the Commission for
Conciliation, Mediation and Arbitration for a different commissioner
to
determine the dispute between the parties concerning the charge
of creating obstacles to the proper running of the disciplinary
process.
6.4.3 The application to have the arbitration award made an order
of Court is postponed a sine die.
6.4.4 The applicant is entitled to 40% of the costs of this
application.”
[9] In the course of its judgement, the Court a quo did not make a
finding on the reviewability or otherwise of the second respondent’s
finding that the dismissal of the first respondent had been
procedurally unfair. Except for the second respondent’s finding on
the charge that the first respondent had created obstacles to the
proper running of the disciplinary process, the Court a quo found
that all the other findings made by the second respondent which the
appellant had contended rendered his award reviewable were
not
assailable.
The appeal
[10] The leave to appeal that the Court a quo subsequently granted
to the appellant was of a general nature which allowed the appellant
to appeal against the whole judgement of the Court a quo including
its failure to make a finding on the second respondent’s finding
that the dismissal was procedurally unfair. When this appeal was
called in Court, there were a number of instances of non-compliance
with the rules of this court for which condonation was sought by the
appellant. The one was the failure by the appellant to deliver
the
record on time. Another was its failure to deliver its heads of
argument on time. Yet another one was its failure to deliver
its
power of attorney on time. The first respondent, who was the only
respondent to oppose the appeal, took several objections
in limine
against the appellant’s appeal.
[11] One of the objections in limine taken by the first respondent
was that, as the appellant had failed to deliver the record
timeously, the appellant was deemed to have withdrawn the appeal in
terms of the provisions of Rule 5(17) of the Rules of this
Court. On
the side of the first respondent it appeared that the first
respondent had wished to pursue a cross-appeal against the
Court a
quo’s finding that the second respondent’s finding relating to
the charge of creating obstacles in the running of the
disciplinary
process was not justifiable in terms of the reasons given for it.
The appellant had made a reference in its Heads
of Argument to a
cross-appeal by the first respondent but the latter had not complied
with the requirement of the Rules of this
Court relating to the
delivery of a notice of cross-appeal and had not dealt with the
cross-appeal in its Heads of Argument.
[12] As a period of over three years had lapsed from the date of the
dismissal to the date of the appeal and as all parties and
the
Court thought it was important that this appeal should put an end to
this whole dispute once and for all, it was agreed by
all parties
that all incidents of non-compliance with the rules of this Court on
both sides should be condoned by this Court and
that the Court
should then hear the merits of the appeal and the cross appeal. The
Court granted an order to this effect and proceeded
to hear
argument on the appeal and the cross-appeal.
[13] Before proceeding, it is important to state that there was no
dispute that the second respondent had correctly summarised
the
evidence presented by the appellant’s witnesses save in respect
of two complaints in relation to Mr Msiza’s evidence and
that of
Mr Van Breda. With regard to Mr Msiza’s evidence the appellant’s
complaint is that the second respondent misconstrued
Mr Msiza’s
evidence in that Mr Msiza had said that the first respondent’s
refusal to hire her uncle was as a result of her
own personal
reasons as opposed to the appellant’s policy. In my view this is
of no consequence. The appellant also complained
that the second
respondent had attributed to Mr Van Breda evidence that had been
given by the first respondent. I shall deal with
this aspect of the
matter shortly when I deal with each of the various charges against
the first respondent.
[14] In attacking the second respondent’s award, Mr Antonie, for
the appellant, proceeded on the basis of the test of review
as
laid down by this Court in
Carephone (pty) Ltd v Marcus N. O.
& others
(
1998)
19 ILJ 1425 (LAC) at 1435G.
Before he dealt with the various charges, Mr Antonie, made a
general attack on the second respondent’s award which I now
turn
to deal with. The appellant stated in its supplementary affidavit
that underlying the second respondent’s assessment
of the
evidence and
the relief he granted was his
complete failure “
to address the fundamental reasons for which
the first respondent was dismissed.”
The appellant states that
the fundamental reason for the dismissal of the first respondent is
reflected in what Ms Roslan presented
in the disciplinary enquiry as
the charge against the first respondent as well as in part of what
was said by the chairman of the
disciplinary inquiry when he gave
his decision and reasons for his finding. The quotation of what Ms
Roslan said in the disciplinary
inquiry reads thus:-
“
The charge is conduct
destructive of the trust and confidence required in a human
resources officer. Disloyal conduct serving to
undermine the
credibility and proper functioning of the human resources
depa
r
tment.”
[15] The quotation from the
chairman of the disciplinary enquiry that is relied upon as
revealing the fundamental reason for the
first respondent’s
dismissal reads thus:-
“
Due to the extremely
sensitive and confidential nature of the position filled [by the
first respondent] and her conduct generally,
made me come to the
conclusion that due to the continuous and repeated unacceptable
performance and workplace behaviour resulting
in irreparable damage
to the trust relationship and credibility within the department and
the company as a whole, I have no alternative
but to terminate [the
first respondent’s] services with immediate effect.”
[16] The evidence that was led on
behalf of the appellant before the second respondent did not come
anywhere near to being sufficient
to prove any valid reason for the
dismissal of the first respondent. I do not think that any more
requires to be said in this regard
other than dealing with the
various charges of misconduct because the appellant, it seems to
me, may have intended that the evidence
relating to those charges
would not only prove the alleged acts of misconduct on the first
respondent’s part but that it would
also prove this alleged
fundamental reason for the dismissal of the first respondent.
The charge of unauthorised
questionnaire
[17] The second respondent disposed
of this charge on the basis that the first respondent had already
been disciplined for her conduct
in regard to this charge in a
previous disciplinary inquiry which had taken place in March 1997
and that the appellant had no right
to discipline her for the second
time. In the review application the appellant attacked this finding
on the basis that, even though
the chairman of the disciplinary
inquiry seems to have taken it into account it had not formed part
of any charge against the first
respondent in the disciplinary
inquiry of March 1997. For this reason, so argued the appellant, it
had been open to it to charge
the first respondent with. The Court a
quo rejected the appellant’s complaint in regard to the manner in
which the second respondent
dealt with this charge and gave its
reasons therefor. It dealt with it
paragraphs 16 - 22 of its
judgement. I agree with its conclusion and its reasons for rejecting
the appellant’s complaint in this
regard. It would serve no
purpose to repeat those reasons in this judgement.
The charge of alleged
negligent re-hiring of temporary employees
[18] The allegation against the
first respondent in this regard is that she had negligently hired
temporary employees who had previously
been dismissed from the
appellant for trashing the factory floor. Although the appellant has
complained that the second respondent
attributed to Mr Van Breda
evidence that was given by the first respondent in regard to the
temporary employees involved, this
is of no consequence because the
appellant led no evidence in the arbitration proceedings to prove
negligence on the first respondent’s
part. The first respondent
admitted that she hired the temporary employees in question but
stated that there had been nothing in
the records indicating that
they had previously been dismissed by the appellant. This part of
her evidence was not challenged
in the arbitration proceedings. The
appellant sought to challenge it only in the review application by
seeking to introduce evidence
that had not been led in the
arbitration. The appellant cannot do this. Accordingly the
appellant failed to prove this charge
before the second respondent.
[19]
The charge relating to
creating obstacles to the running of the appellant’s disciplinary
process.
[19.1] The charge against the first
respondent in this regard was that she had created obstacles to the
proper running of the appellant’s
disciplinary process by doing
three things. The first was that, in connection with an appeal that
she noted in respect of the disciplinary
inquiry of March 1997, she
had insisted on being represented by a union official when she knew
this to be contrary to established
policy. Although in her evidence
in the arbitration proceedings, the first respondent appears to have
denied that she had insisted
on such representation, I do not think
that it was necessary for the second respondent to go as far as
deciding this question.
It seems to me that the first question in
regard to this charge should have been whether it disclosed any
cause for disciplinary
action even assuming that she had so
insisted.
[19.2] I do not think that it did.
There was nothing in the policy of the company that banned such
representation. If the first
respondent felt that, in order to
properly protect her rights and interests, she required
representation by a trade union official,
she was entitled to seek
permission for such representation; she was entitled to negotiated
and bargain for it as best she could.
It was upto the appellant
either to grant or refuse her request. Once the appellant had
properly considered the first respondent’s
request and refused it,
the appellant was entitled to proceed with the appeal on the basis
that her request of such representation
had been refused. I can,
therefore, not see how her insistence affected or prejudiced the
appellant. This allegation disclosed
no cause for disciplinary
action. Accordingly the first respondent should not even have been
charged with it. Although the Court
a quo was correct in saying the
finding that the first respondent did not insist on outside
representation was contrary to the
clear evidence before the second
respondent, this was, in my view, besides the point. The final
finding that the first respondent
was not guilty of misconduct in
this regard should stand.
[19.3] It was also alleged under
this charge that the first respondent had created obstacles in the
proper running to the appellant’s
disciplinary process by failing
to comply with the request that she support her appeal with written
motivation. It is true that
the appellant requested the first
respondent to give motivation for her appeal which she had noted in
regard to the disciplinary
inquiry of March 1997. In a letter of the
23
rd
May 1997 Mr McClintock, the Human Resources Director
of the appellant, wrote to the first respondent’s representative.
In that
letter his explanation for the appellant’s requirement for
such motivation was given in these terms:
“As you know an
appeal will only in exceptional circumstances require a full
re-hearing of the case and to determine what
form the appeal
should take it is essential that [the first respondent] complies
with the requirement that she spell out in detail
the specific
grounds and motivation of her appeal.”
[19.4] The second respondent found
that there was no evidence to prove the existence of a rule
requiring such motivation for appeals.
He also found that the
appellant had not proved that the first respondent had ever been
called upon to supply such motivation
and that she was made aware
of the consequences of non-compliance therewith. The Court a quo
concluded that these findings by the
second respondent were
unjustified. I shall assume that the Court a quo was correct in
finding that the second respondent’s findings
were unjustified.
However, there is a prior question which arises before determining
whether the appellant had such a rule and,
if so, whether it had
called upon the first respondent to provide motivation for her
appeal.
[19.5] That question is whether,
assuming there was a rule requiring such motivation and assuming
that the first respondent had
been called upon to provide such
motivation and had failed to do so, such conduct was one that could
provide a basis for the appellant
to discipline the first
respondent. I think not . It seems clear to me that in that case the
appellant may have had no obligation
to process the first
respondent’s appeal. However, the first respondent’s conduct did
not provide any basis for disciplinary
action to be taken against
her. She had a right to pursue her appeal but, if she wanted to
exercise that right, she had to comply
with the requirements laid
down for its prosecution. If she chose not to comply with such
requirements, she risked forfeiting
her right to be heard on
appeal. However, this is a far cry from saying that she could be
disciplined for her failure to motivate
her appeal so that it could
be prosecuted. In my view the Court a quo erred in dealing with this
part of the matter as if it provided
a basis for possible
disciplinary action. Accordingly, even though the reasons given by
the second respondent for dismissing this
charge may have been
unjustified, the first respondent’s conduct disclosed no basis on
which disciplinary action could be taken
against her.
[19.6] In support of the charge of
creating obstacles to the proper running of the appellant’s
disciplinary process, the first
respondent was also alleged to have
relied upon the conduct dealt with above under par 19.1 to 19.5 “
to
enter into dispute”
with the appellant. This was alleged
because in response to the appellant’s insistence that the first
respondent should stop
seeking union representation and that she
should provide motivation for her appeal, her union declared a
dispute with the appellant
and referred it to the CCMA. It is clear
that what the appellant sought to discipline the first respondent
for was the fact that
the employee exercised her right to refer a
dispute to the CCMA. Not only is such a charge incompetent but also
I am of the opinion
that any dismissal for such conduct may arguably
constitute an automatically unfair dismissal in terms of sec 187(1)
of the Labour
Relations Act, 1995 (Act NO 66 of
1995)
(“the Act”
). The
first respondent’s conduct in this regard should never have formed
the basis of a charge of misconduct.
The charge of alleged
argumentative and insubordinate conduct
towards
mangers of the company
[20] The fourth charge against the
first respondent was that it
“continued argumentative and
insubordinate conduct towards managers of the company”.
This
charge appears to have been based on a memorandum that the first
respondent wrote to her immediate superior which is dated
the 29
th
May 1997. That is a lengthy memorandum. It was quoted in full in
par 50 of the judgement of the Court a quo. Although this memorandum
is lengthy, I consider that it is necessary to quote it in full. It
reads thus:-
TO: LYNN ROSLAN
cc: P. Smith, J. McClintock, P.
Twala
From: BONGI MASHABA
Date: 29 May 1997
“
1.
Apology
I want to apologise regarding
the fact that:
2 of the 10 people I called in
for a 1 day-job on 16/05/97 were dismissed for bad conduct last
year.
I helped Melany the way I did.
I
have the following problems in regard to your reaction to
the above and many others
2.1 The way you seem to change facts regarding issues to suit
whatever purpose you want and the way you take these as far as you
do. Your complains about me are not based on the true facts of the
events but projected to suit what you want them to look like.
You have done this on a number of occasions beside these (see
Addendum A), to name a few, - in my appraisals (to which I
complained
in writing); my salary increase; in your disciplinary
action against me (some proof of which was submitted); and very
recently
(HRIS meeting & B. Glynn issue - both I complained in
writing).
2.2 Your inconsistency regarding how I should perform my work. Your
rules change everytime to suite the purpose of that instance,
-
today they are right, tomorrow they are wrong depending on what
impression you want to present about me or the wrong you want
seen
in my doing.
E.g You say I should not have help Melany with documentation but
should have told her about the procedure and come to discuss with
you.
I did that regarding informal recruitment documents from I. Twala, -
you took this to the disciplinary action that I can’t communicate
policies and procedure I came to you for help.
I explained procedure to M. Skeen as you say you expect me to, - you
took that to the disciplinary action alleging that I was “extremely
difficult”.
You put in my objectives and emphasised that I must help people
because “I am the only person in the department who is not being
helpful”. - I helped Melany, now I shouldn’t have.
You have emphasised numerously and very strongly to me that you want
action not stories. - I acted, and now I should have passed
this on
to you without doing anything.
You have told me that we must be flexible with the policies &
procedures. This was also supported during the disciplinary hearing,
- (to my point about informal recruitment and its implications, re:
Michaela’s temps) that policies & procedures are not
cast in
stone they are a guide and an example given about compassionate
leave, you further said this is not a bureaucratic company.
2.3 When dealing with issues, mistakes and complains that concern
me, - On a number of occasions I find you quick to lashout
criticism,
hardhanded and very hasty to judge,
accuse and allege no matter how I try to tell/remind you the real
facts or what you said. Only if something reminds you or someone
else tells you something then you realise the actual facts and you
apologise for being angry, (e.g. J. Nelson & see memo to
you
re: B. Glynn).
2.4 I find you do not take into consideration the
facts/circumstances involved or even check your understanding of
facts and procedures
surrounding an issue at hand, some of which are
standard procedure, e.g. some of the points you use in your
allegation indicate
your misunderstanding of the actual facts and
procedures, maybe purposefully to project that I am incapable, e.g:
Any person who
has been called in to do a job for the company must
be paid a salary of the work done. Legally if these people did a job
for GWSA
it remains the company’s responsibility to pay them. If
Steyn did wrong he should be corrected but we may not withhold their

salary because of that otherwise the company may b e liable for
withholding pay.
It is also GWSA policy and procedure that salaries must be paid
through the Salaries Department whether the employees were recruited
formally or informally and for any length of stay. The documents I
gave you are int he names of the casuals and not Steyn and therefore
would not “get the money paid out to the employee (Steyn)”. The
arrangement
between themselves they can sort it out so, and I cant be involved -
my duty is to ensure that people are paid in lieu of the work
done
and that the correct documents (even though late) are done.
There is no way that salaries Department can process and pay a
salary if there is no documentation and this applies for all
employees,
- 1-day casuals, temps, permanent, etc informally or
formally recruited. This is legal, procedural and necessary
documentation
and not an “instruction to payroll to regard
informal workers as employees”,- they are temporary employees
whiles they work
for us, that’s what we always do, when the
contract is finished they are no more, but payroll records must be
justifiable anytime
later on.
2.5 The way you deal with problems that involves me seems very
subjective, attacking the symptoms and not the causes. E.g. Steyn
did wrong and I did wrong, - but you don’t do anything about the
cause of the fault. There is still a chance that someone else
can do
what Steyn did and I can be blamed for any of the points under 2.2
- and you will always have a reason to portray something
wrong I
have done.
What Steyn did and some other problems you blame on me indicate a
structural problem with the communication
strategies you use to communicate the company policies and
procedures, it does not reach everyone. E.g. We are still receiving
and submitting to Payroll after the 10
th
(even 1 month
late), despite the fact that I was disciplined to correct that
problem - the departments don’t know about payroll-10
th
- problem so this will keep occurring and I am the one who takes
these to payroll dept and therefore blamed for late submission.
2.6 My suggestions: You don’t take cognisance or encourage them
you just listen or ignore them then later use them to allege
that
that was an action agreed upon (Addendum A). Sometimes you only take
them if someone else suggests them and there are examples
of this.
2.7 I find some of your reactions baised - and giving selective
treatment - e.g. In view of Addendum A, it does not seem a problem
that people who were involved in this issue did not follow procedure
to inform me; Angela vs Packing hall staff medical aid service;
when someone in your own department refuses point blank and rudely
to adhere to procedure and/or to use appropriate forms which
you
sanctioned should be used, - you say you are not going to be a
referee and not going to involve yourself in acts of “catching
up”
someone, - but if other people don’t you want to know from me why
they are not using the correct forms.
My
functional responsibility in the department
3.1 Yes I have the responsibility to advise correctly. Like everyone
else I am not 100% perfect and cannot make everyone happy
all the
time, but I pride myself with the experience, knowledge and the good
I have and still contribute to the company. I know
that my
performance is not as bad as you portray it. Everyday I meet
complicated issues which I have to deal with and advise on.
E.g.
last week Friday I gave you 4 typical situations of this which I
advised and dealt with to the best of my knowledge and ability.
You
also have come to me for advice, help and explanation on issues of
policy and procedure and how to go about it.
3.2 Since I joined the company it has been my job to
explain/advise/inform on policy and procedure before anyone else did
in this
department. I have corrected numerous incorrect applications
of policies and procedures within and outside the department for the
benefit of the company and I think I have been trying my best for
the company. I have never before had any such problems as you
portray in this regard. If after all this there is something that I
am not doing right in this regard I think management should
not only
judge but be objective in its approach and attend to the cause of
the problem to help me correct my wrongs and improve
from them.
If
I do wrong I have to be reprimanded or subjected to all forms of
correctional measures but it should b e truthful and based
on real
and actual facts of the event. I expect respect, leadership,
guidance, encouragement and correction that will help me
do my job
best but so far most of the feedback seems inconsistent and very
destructive. (See memo HRIS).
I
don’t know why you are doing all this. Maybe there is another
side of it which I am missing or misunderstanding, but this
is the
way I see things and what I feel subjected to. I feel grossly
victimised and unfairly treated. I am now beginning to believe
that
this is a procedural act aimed at removing and replacing me from my
position due to the reasons of “not being able to
perform my
duties correctly, putting the company at risk, incapable to
communicate policies, wrong application of policy and
procedures,
interpersonal relationship, etc, most of which are not based on
real facts and there are more of these examples.
This
has been going on since last year and every aspect of my life and
myself is affected, I cant even begin to tell how much.
My worklife
is a nightmare in waiting, expecting to be called in for another
wrong.
I hope and pray that you take the content of this letter as an
unbottling of all the things the disturb and concern me in my daily
worklife.
With all due respect.
Bongi”
It is difficult for one to read the first respondent’s memorandum
without feeling some sympathy for the first respondent in
regard to
the clear frustration experienced by her. This is not a case of
insubordination. This is a case of an employee who was
seeking help
and who may have needed clarification of certain important matters
in order for her to know what exactly was expected
of her. There is
nothing in the memorandum that suggests that she was being
insubordinate. In any event Ms Roslan did not give
evidence to
dispute the first respondent’s evidence in this regard. In the
course of her frustration the first respondent might
not have
chosen all her words as carefully as she would probably have done in
different circumstances. However, that is understandable
in such a
situation. The Court a quo rejected the appellant’s complaint in
this regard and, in my view, correctly so.
[21]
The charge of compounding the transgression of an
employee.
[21.1] The fifth charge was that the first respondent had compounded
“the transgression of an employee by facilitating a breach of
procedure in relation to the rehiring of informal workers”.
The Court a quo dealt with this charge
in paragraphs 50-61 of its judgement. It rejected the appellant’s
attack as lacking in merit and gave its reasons for such conclusion.
I agree with both its conclusion and reasons. It would serve no
purpose to repeat those in this judgement.
[22] In the light of the aforegoing I am driven to the conclusion
that the second respondent’s finding that the first respondent’s
dismissal was substantively unfair cannot be said to be
unjustifiable. In so far as the Court a quo found the contrary in
respect
of the charge of creating obstacles in the proper running of
the appellant’s disciplinary process, this overlooked, as I have
already indicated, that the first respondent’s conduct in that
regard could not form a basis for disciplinary action.
[23]
Procedural fairness
[23.1] What remains is the question of procedural fairness. The
appellant complained that the Court a quo should have dealt with
this aspect of the matter. In the light of the conclusion I have
come to on the issue of substantive fairness, it seems to me that
whether or not the second respondent finding on procedural fairness
was justifiable or not becomes academic.
[24]
The relief of reinstatement
[24.1] The appellant has also attacked the relief of reinstatement
that was granted by the second respondent. In this regard the
appellant has contended that the trust relationship between the
parties has broken down completely. It has pointed out that there
was sufficient evidence before the second respondent to support this
contention. In my view it was the relationship between the
first
respondent and her immediate superior, Ms Roslan, that was
strained. I am not sure even in regard to that relationship
that I
can go so far as to say it had completely broken down. Even if I
could, the one difficulty I would have in this regard
is that the
appellant may well be largely to blame for such a breakdown in which
case I do not think it would be appropriate to
let it benefit from
its own fault.
[25] In this case the first respondent was found by the second
respondent not to have been guilty of any of the charges which

formed the basis of her dismissal. This Court has come to the same
conclusion. She has been forced into litigation that has gone
on for
over three years with probably very little in terms of financial
resources. In all the circumstances I am of the opinion
that there
is an insufficient basis to interfere with the order of
reinstatement made by the second respondent especially in the
light
of the very unacceptable manner in which the appellant treated the
first respondent.
[26] In the result, although the appellant’s appeal against the
Court a quo’s failure to deal with the issue of procedural
unfairness was
justified, in the end that aspect of the matter is of no consequence
and its appeal has, for all intents and purposes, failed.
The first
respondent’s cross-appeal must be upheld.
[27] In the premisses I make the following order:.
The
appeal is dismissed with costs.
The
cross appeal is allowed with costs.
The
order of the Court a quo is set aside and replaced with one in the
following terms:-
“
1. The application is dismissed with costs.
The
arbitration award issued by the second respondent in the dispute
between the applicant and the first respondent under CCMA
case no
GA 10898 is hereby made an order of this Court.”
___________
RMM Zondo
Judge President
I agree
_________
D.M. Davis
Acting Judge of Appeal
I agree
___________
B.R. du Plessis
Acting Judge of Appeal