About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2001
>>
[2001] ZALAC 26
|
|
Cadema Industries (Pty) Ltd v Commission for Conciliation Mediation and Arbitration (Western Cape Region) and Others (CA1/01) [2001] ZALAC 26 (29 June 2001)
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD
AT CAPE TOWN
Case no: CA1/01
In
the matter between:
CADEMA
INDUSTRIES (PTY) LTD Appellant
(Applicant)
and
COMMISSION
FOR CONCILIATION, First Respondent
MEDIATION
& ARBITRATION (First Respondent)
(WESTERN
CAPE REGION)
ALEX
TWIGG N.O. Second Respondent
(Second Respondent)
SOUTH
AFRICAN CLOTHING & TEXTILE Third Respondent
WORKERS
UNION (Third Respondent)
JUDITH
HENN Fourth Respondent
(Fourth Respondent)
JUDGMENT
COMRIE
A.J.A:
1. Judith
Henn, the fourth respondent, was employed by the appellant
company as a machinist in
its clothing factory. She was also a member of
the
third respondent trade union and a senior shop steward. On 15
December
1998 an incident
occurred during which she swore at the appellant’s production
manager, Mr Dave Evans. On 14 January 1999,
following upon an
internal disciplinary enquiry, Ms. Henn was found guilty of :
“Insolence-
Swearing at senior
management”. On 25 January 1999 Ms. Henn was dismissed on this
ground.
2. Conciliation
failed and the matter proceeded to arbitration before the
CCMA
(the first respondent). The commissioner who conducted the
arbitration, the second respondent herein, found Ms Henn
guilty, but held
that dismissal was not an
appropriate sanction. He ordered she be re-instated with loss of
back pay. He further directed that
she publicly apologise to Mr
Evans in front of the staff who were present when she swore at him.
And he authorised the appellant
to issue a final written
warning to her for insolence.
3. The
appellant brought the award of the commissioner on review in the
Court below. Although the primary relief
sought by the appellant was the
setting
aside of the award, it is apparent from the review papers that the
real
complaint was that the commissioner
had interfered with the sanction of dismissal. The third and the
fourth respondents opposed
the review.
It
is relevant to note that in the opposing affidavit, they did not
contend that the finding of misconduct was wrong.
4.
The review application was dismissed by
Stelzner
A.J
.
Her
conclusion was that no grounds of review had been established. She
indicated,
however, that had she been
the commissioner, she might well have
confirmed
the dismissal. With leave granted by the Court
a
quo
, the
appellant appeals to this Court.
5. Given the attitude taken
by the third and fourth respondents to the commissioner’s
finding, I think that
Stelzner A.J’s
succinct summary
of the facts will largely suffice:
“
4. The second respondent
found on the evidence before him that the fourth respondent had
correctly been found
guilty of insolence (nor has this finding
been disputed by any of the parties). He found that she had sworn
(using explicit language)
at Evans in circumstances which were not
justifiable and in what amounted to an over- reaction on her part to
what she had perceived
as unacceptable conduct on the part of Evans.
Evans had tried to control access to the sales room at applicant’s
factory.
In order to do so he
had closed the
door to the room to stop people from entering which had caused the
queue of people outside the door (including two
pregnant women) to
have to move backwards. No-one was injured. The second respondent
found on the evidence that Evans had not
provoked the fourth
respondent in any way, in particular Evans had not
at the
fourth respondent (a version which the fourth respondent attempted to
put forward at the arbitration proceedings for the
first time).
(5).
The second respondent also rejected the union’s contention that
the workplace rule against insolence had been inconsistently
applied because Krauss, the managing
director,
regularly used foul language and had established
a
culture at the workplace permissive of the use of foul language.
The second respondent, while criticising the applicant
for
allowing the problem pertaining to Krauss’s use of foul
language in the workplace to persist, held that
this
does not mean that the rule had been inconsistently applied.
Within the particular context of the incident with which
he was
concerned the second respondent was satisfied not only that Evans
had not sworn at the fourth
but that he had, in fact,
done, nothing to warrant her outburst of swearing at him.”
It should be added that Ms Henn
appears to have initiated the
contretemps
which culminated in the swearing, and that her words to Mr.Evans
were
that he was “fucking rude” and a “fokken
vark”.
With regard to the sanction of
dismissal, Ms. Henn had been in receipt of a number of previous
warnings from the management. One
such was a warning for insolence
on 29 May 1998. It was stated to be valid for a period
of
four months from 29 May 1998, and had thus expired by December.
Other warnings related to a failure to
obey instructions and to failures to perform her duties correctly or
satisfactorily. On
28 September 1998 Ms. Henn was issued with a
letter signed by the managing director. Because of the
importance which
it has assumed in this case, I propose to quote the
letter in full :
“
Dear Judith Henn,
Due to the number of warnings
of diverse nature which
were issued to you during the past
five months, it has become necessary to address the problem.
As in the past, management
herewith once again appeal
for
your positive support and co- operation in order to create (and
keep) a peaceful working environment. Due to
amount
of orders the company has at the moment (in contrast with
other clothing factories) it is important that orders
are
produced and delivered on time and therefore
team
work is important. Negative attitudes such as displayed by you
at times are not in the best interest of the company
or your
fellow employees. What important is your need to understand that
this disruptive behaviour causes a loss
in concentration
by others around you and this directly effects the quality of the
merchandise.
Quality is something management
will and shall not sacrifice.
Please note that this is the
management’s final attempt to
get you to do an honest
days work to the best your ability for the good of the company
and your fellow employees.
Your
co-operation would be appreciated. Please note that no further
contravention of any kind on your part would be
tolerated.
Further violations will result in the company taking strict
disciplinary action against you which
could
result in dismissal.”
7.
The Court below pointed out that this letter, unlike other warnings
which
had been issued, was not entitled
“Disciplinary Warning”. It carried no
heading or
title. It should be noted, however, that in the body of the letter
there was reference to a “final attempt”;
a
warning that “ no further contravention of any
kind....would be tolerated”; and a warning that :
“
further
violations will result in the company taking strict
disciplinary action against you which could result in dismissal”.
8. The chairman of the
disciplinary enquiry referred in his report to the recurrence
of warnings and to the letter of
28 September 1998. Later in the
report he wrote:
“
I also have to take in
account the fact that the warnings issued to her during the last
number of months must have certainly
made her aware of the
implications of further similar misconduct. The Employee is not an
ignorant person and having been the senior
shop steward for some
time, she should have realised that she was on thin ice.
As
the shop steward she occupies a position of leadership
and
despite the assertion by Mr Williams that the problematic
relationship between the Union and the employees on the one hand
and
management on the other hand should be attributed to the
attitude of both sides, the
Employee’s behaviour
cannot be justified in my view.”
9.
While not explicitly stated, it is a fair inference that the
warnings generally,
and the letter of 28
September 1998 in particular, played a significant role
the
chairman’s recommendation “that the Employee be given one
week
to provide reasons as to why her
services should not be terminated”.
I interpose that Ms . Henn did
not avail herself of that opportunity.
10.
The commissioner’s view of the matter is to be found in this
passage from the award:
“
I do however find that
dismissal was not the appropriate sanction. Henn’s previous
warning had lapsed at the time
of the present offence although
her warning for a
refusal to obey instructions dated 1
September 1998 was current at the time of the incident in question.
Henn was
charged
with insolence and not with insubordination. While insolence might be
a constituent party of an allegation of
insubordination in
certain instances this was not the company’s case. Krauss’s
letter to Henn on 28 September
1998 arose out of her
failure to perform her duties. There was no contention that in
this case that she failed to perform
her duties or that she
was insubordinate.
Some sanction short of
dismissal was the only appropriate disciplinary step that the
company could take in the circumstances”.
11. It is fair comment on the
aforegoing passage, which speaks for itself, that the commissioner
did not consider the letter of
the 28 September 1998 to
be a
warning, or final warning, for insolence; nor did he consider the
letter to be of material significance to the assessment
of an
appropriate sanction.
This narrow view seems to explain
his decision to interfere with the dismissal.
12. I
turn to appeal. There was some debate before us as to whether
Mr.
Nieuwoudt,
who appeared for the appellant, was advancing a
“new point”
for the first time on
appeal. In at least one critical respect I do not think this is so.
It is apparent from the review papers
that the gravamen of the
appellant’s case was that the commissioner had improperly
“downgraded” the letter of
28 September 1998, and had
consequently approached the sanction on a false basis. This remains
the principal contention on appeal.
Mr
Steenkamp
, who appeared for the
third and fourth respondents, correctly accepted that all facts
were before the Court, and his opposition
to a new point being
argued, if such it be, was no more than nominal.
NUM
V Greenside Colliery
[1995] 4 BLLR 29
[LAC].
13 The statutory grounds for
reviewing the commissioner’s award are to be found in
s. 145
of the
Labour Relations Act 66 of 1995
. I am satisfied, for the
reasons which follow, that the commissioner erred
fundamentally, and reviewably, on grounds
which fall fairly and
squarely within the ambit of the section.
14 The
realistic starting point is Ms.Henn’s course of conduct during
the five months preceding 28 September 1998. It is
apparent from the
evidence that
she was a
troublesome employee, given to repeated disruptive behaviour
and,
on her own admission, possessed of a foul tongue. By September 1998
management’s
patience was wearing thin. The letter of the 28
th
was not
simply handed to Ms Henn, she was
called in and the position was discussed with her. The letter
itself was a final warning
in substance. It is not reasonably
possible to construe it otherwise. Furthermore the final
paragraph was in the widest terms:
“ no further contravention
of any kind”.
The
letter plainly extended in my view to insolence, which is a
species
of disruptive behaviour and for which
she had been warned in May, within the five month period. On
receipt of the letter, pursuant
to the accompanying discussion, Ms.
Henn could not have been under any illusion as to where she stood on
either score.
Nor did she claim to be
. Her defences were (i) a form of justification (Mr. Evans’
alleged conduct); and (ii) inconsistency of a rule in the
work
place, possibly implied (Krauss’ propensity for swearing).
Both defences were rightly rejected. It was not Miss Henn’s
case that she misunderstood the letter, or its purport, or that she
was misled into believing that the letter meant something
other than
it plainly said.
15
Mr
Steenkamp
argued that it was not permissible for the
appellant to resurrect or extend the May warning for insolence,
which lapsed at about
the time when the letter was written. I shall
assume that to be so. In my view it was no intended to resurrect
such warning. But
this does not mean that an
employer,
exasperated by a general pattern of disruptive conduct, is precluded
from admonishing the employee to desist and informing
her that she
had reached the end of her tather, and that persistence may lead to
dismissal. This is what the letter and the concomitant
discussion
did. The correct and only factual position on the evidence before
the commissioner was therefore that from 28 September
Ms Henn was on
warning, conveyed in writing, in respect of a category of offences
which included insolence.
16. It
was not open to the commissioner in the circumstances to ignore
the
evidence or its effect, which it seems to
me is precisely what he did. I have
set forth his full
reasoning at paragraph 0] above. It can be seen that he dismembered
the letter of 28 September and, in so
doing, robbed it off all
its
efficacy, which explains the decision to reduce the sanction. But
the commissioner’s approach was not supported by the
evidence,
and his findings with regard to the letter, were not findings
to which the evidence was reasonably susceptible.
This appears to me
accordingly to be a clear instance of a latent gross irregularity as
that concept was explained by
Schreiner
J
in
Goldfields
Investment Ltd and Another v City Council of Johannesburg and
Another
1938
TPD 551
at 560
.
In terms of
s145
a “gross irregularity” is a “defect”
which may found review proceedings.
17. It
follows that the Court below should have set aside the award. As all
the
facts were before that Court and as it
should in terms of
s.145(4)(a)
have
determine the dispute in
the manner which it considered appropriate, that task now falls to
this Court.
18 There
is no doubt in my mind that the fair and appropriate sanction was a
dismissal. As the senior shop steward, Ms Henn
occupied a position of leadership. She was seriously insolent to a
member of senior
management
without any provocation
whatsoever. From the decision and letter of 28 September she knew
she was at risk of dismissal. She failed
to apologise or otherwise
make amends either before or during the disciplinary hearing or
in
the week following it. By her own conduct Ms . Henn undermined
and eventually ruined a tolerable relationship between
employer
and employee. The appellant could not reasonably and fairly be
expected to retain her in its employ. The dismissal must
therefore be
confirmed and the commissioner’s award as well as the order of
the Court
a quo
set aside.
19 The
Court below ordered the appellant to pay the costs of the third and
fourth respondents. That order falls away in view of
the outcome on
appeal
I consider it to be fair that the costs
a quo
and on appeal should follow the
result.
20 The order is as follows:
The appeal is upheld with
costs.
The order made by the Court
a
quo
is set aside and replaced by the following:
“
1. The application is
granted with costs;
The second respondent’s
award in case no. WE 20881 is set aside;
It is declared that the
dismissal of the fourth respondent by the applicant was
both substantively and
procedurally
fair”.
All costs referred to in (a)
and (b) above are payable by the third and fourth respondents
jointly and severally, the one paying,
the other to be absolved.
_________________
R.G.
Comrie
Acting
Judge Of Appeal
I
agree
__________________
RMM
Zondo
Judge
President
I
agree
________________
K.
van Dijkhorst
Acting
Judge of Appeal
For
the Appellant: Mr H. Nieuwoudt of Deneys Reitz Inc., Cape Town
For the third and fourth
Respondent: Mr A. Steenkamp of Cheadle Thompson & Hayson Inc.,
Cape Town
Date
of Argument: 22 May 2001
Date
of Judgment:
[19] There
is no doubt in my mind that the fair and appropriate sanction was a
dismissal. Ms . Henn had
been repeatedly warned for disruptive behaviour, which included a
warning for insolence; on 28 September
she was warned finally; less
than three month later she was seriously insolent to the
production manager without any
warrant whatsoever. She made no
attempt to apologise or otherwise or make amends either before or
during the disciplinary
hearing or in the week following it.
[20]
Costs remain for determination. The Court below ordered the
appellant to
pay the costs of the third and
fourth respondents. That order mus be set
aside
in view of the outcome on appeal. Mr .
Nienwoudt
submitted that the appellant should have its costs at first
instance and on appeal unless its success depend on the so called
“new point” in which case there should be no costs
orders. Mr.
Steenkamp
argued with tis submission. I have already question whether in the
critical respect there was a new point. While it must be conceded
that the appellant could have spelled out its grounds for review
with greater clarity, on the other hand the review always “hinged”
(as I have put it) on the letter of the 28 September and on what the
commissioner did with it. I infer that the argument for the
appellant was presented differently in the two Courts, so that
Stelzner A.J
’s
mind may not have been attuned to the particular point on which
on which the appeal had succeeded.
Nevertheless,
it is sufficiently close and to go by her reason, I think that the
new argument would have failed. All in all I
consider it to be fair
that costs
a quo and on appeal follow the result. I propose
the following order :
(A) The appeal succeeds with
costs. The order made by the Court
a quo
is set aside and
replaced by the following :
“
1.The application succeeds
with costs;
2. The second respondent’s
award in case no we 20881 is set aside;
3. It is declared that the
dismissal of the fourth
respondent by the
applicant was both substantially and procedurally unfair”.
(B) The costs referred to
in (A) above are payable by the third and fourth respondents jointly
and severally, the one
paying the other to be absolved.
R.G COMRIE
JUDGE.
Date of
Judgment: 29 June 2001