Apron Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA18/05) [2007] ZALAC 14 (15 June 2007)

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[2007] ZALAC 14
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Apron Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA18/05) [2007] ZALAC 14 (15 June 2007)

30
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Case no: JA18/05
In the matter between
Apron Services (Pty)Ltd
Appellant
And
Commission for Conciliation,
First
respondent
Mediation
and Arbitration
W Ferreira N.O Second respondent
Nelson Mawelele
Third respondent
JUDGMENT
ZONDO JP
Introduction
[1] This is an appeal against a judgment of the Labour
Court in a review application that had been brought by the third
respondent
herein for the review and setting aside of an arbitration
award that had been issued by the present second respondent under the
auspices
of the first respondent. The arbitration award related to a
dispute between the current appellant and the third respondent about
whether the latter’s dismissal by the appellant from its employ was
fair. The second respondent’s award was to the effect that
the
third respondent’s dismissal was both substantively and
procedurally fair. The order made by the Labour Court was that the
arbitration award issued by the second respondent was unjustifiable
and fell to be reviewed and set aside. The Labour Court took
the view
that dismissal was too harsh a sanction and ordered the third
respondent’s reinstatement and that he be given a final
written
warning on the condition that, if, within a period of twelve months,
he was found guilty of a similar act of misconduct,
he could be
dismissed “
immediately
”.
It is against this order that the appellant now appeals. The appeal
is with the leave of the Labour Court.
The facts
[2] The appellant is a company that, at all times
relevant to this matter, was responsible for the conveyance of
passengers from the
airport building to the aeroplanes they wish to
board and from aeroplanes that have landed to the airport building.
It was also responsible
for the conveyance of passengers’ luggage
from the airport building to aeroplanes and vice versa. To do this it
had a fleet of
twenty five (25) buses. However, it normally used only
about fourteen of them.
[3] One of the appellant’s employees was the third
respondent. He had entered its employ in 1994, initially as a baggage
handler,
but had been promoted to the position of shift control
officer by the 15
th
November 2000. He was ranked as a junior manager. The appellant also
employed bus drivers. The bus drivers drive the buses which
are used
to transport passengers from the airport building to the aeroplanes
and vice versa. The third respondent had a number of
employees
including bus drivers under him. One of them was a Mr Doctor Khoza.
The third respondent’s immediate superior was a Mr
Hlongwane.
[4] On the 15
th
November 2000 the third respondent was required to knock off at
22h00. It would seem that his being required to knock off at such
time arose out of his agreement to work voluntary overtime. Mr
Hlongwane, was away in East London and was going to arrive back in
Johannesburg in the evening. Mr Hlongwane says that his flight from
East London to Johannesburg was delayed and he telephoned the
third
respondent and informed him of this. However, the third respondent
denies this and says that Mr Hlongwane never spoke to him
on the 15
th
November 2000. I shall return to this later on.
[5] At about 13h00 or 14h00 the third respondent was
informed that he was going to have to attend some workshop the
following day.
The workshop related, it would seem, to the
appellant’s business. At about 21h00 the third respondent asked Mr
Khoza to stand in
for him for the rest of the shift because he was
knocking off. It is not disputed that effectively the third
respondent had asked
Mr Khoza to be in charge in his absence. Mr
Khoza agreed to the third respondent’s request. The third
respondent proceeded to record
in the relevant documents that he
knocked off at 21h00. Accordingly, this is not a situation where the
third respondent intended
to hide from his superiors the fact that he
had knocked off at 21h00 that evening. It is common cause that the
third respondent did
not inform Mr Khoza of any delayed flight from
East London. Of course, if nobody had informed him of such delayed
flight, he would
not have known of it and could, therefore, not have
informed Mr Khoza thereof.
[6] When the third respondent left work, there was
nobody senior to him around from whom he could have asked for
permission to leave
work early. The reason that the third respondent
gave why he left work early is that he wanted to prepare for the
workshop the following
day. That this was the true reason for the
third respondent’s decision to leave early does not appear to have
ever been disputed.
It does not appear to have ever been explained
what the third respondent’s preparation for the workshop the
following day was going
to entail. If, for example, in order for
anyone to participate meaningfully or to benefit from the workshop he
would have had to
read documentation that required two or three
hours’ reading, knocking off at 21h00 rather than 22h00 may be very
understandable.
In such a case may be the third respondent would
reach home after an hour and he would be required to work the
following morning
before going to the workshop. But, as I say, no
explanation was given as to what the preparation entailed. That may
be because both
the third respondent and the appellant knew what the
preparation entailed, particularly seeing that the appellant did not
dispute
this reason for leaving early.
[7] Soon after the third respondent had left work, a
number of bus drivers also left work. It is not clear whether they
left because
it was their knock-off time and had no obligation to
work beyond that time or whether they were under an obligation to
work beyond
that time but had decided, in breach of their
obligations, to knock-off earlier than they should have. Two
aeroplanes subsequently
landed. One of them was the one from East
London in which Mr Hlongwane was travelling. In the subsequent
arbitration proceedings
Mr Hlongwane testified that, when he arrived
at the airport, there was only one bus available to take 145
passengers from the aeroplane
to the airport building. He said that
some of the passengers had to wait for a long time in the rain while
they waited for their
turn on the one bus that had to make a number
of trips to transport groups of passengers. He said that the
passengers ran out of
patience and walked in the rain to the airport
building.
[8] In subsequent arbitration proceedings Mr Khoza
testified that the main reason for the failure to provide passengers
with buses
on the night of the 15
th
November 2000 was that his bus broke down. Mr Khoza testified that
other buses were far away but that, when he offered to go and
fetch
one of the buses in order to expedite the transportation of
passengers to the airport building, the passengers were not prepared
to wait and began to walk to the airport building. The position seems
to be that, apart from Mr Khoza, there was only one bus driver
available as all the other drivers had left. Mr Khoza wanted to use
the second bus to help convey the passengers but it broke down.
When
he was asked why he did not get another bus because the appellant had
many other buses, he said that the other buses were far
away.
[9] The workshop that the third respondent was to attend
the following day was going to start at about 08h00. The third
respondent
was informed at about 13h00 or 14h00 that he should attend
the workshop the following morning.
[10] As
a result of the events of the night of the 15
th
November the third respondent was called to a disciplinary inquiry.
The allegations that he faced in the disciplinary inquiry were
framed
as follows:
“
3.1 leaving the workplace without permission on 15
November and before the end of the shift;
failing to perform work to the required standard by
failing to provide busses for flights SA 482 and SA 1734;
leaving a subordinate in charge with
responsibilities that he could not carry out;
bringing the company’s name into disrepute by
failing to meet service standards.”
The third respondent was found guilty of all four
allegations of misconduct and was dismissed. There was an internal
appeal which
also confirmed the finding and outcome of the
disciplinary inquiry. The third respondent was aggrieved by all this.
[11] With regard to the internal appeal, it is necessary
to make two observations. The first one is that the finding that the
third
respondent was guilty of all four allegations that he had faced
in the disciplinary inquiry was upheld. The second is that the
chairman
made the following two important statements with regard to
sanction:
“
Looking at charges 1 and 4 in isolation, it
appears that the Company’s disciplinary code would require at most
a written warning
for a first offence. However, when adding charges 2
and 3, I believe that the picture changes significantly.”
He also set out a list of what he believed to be
aggravating and mitigating factors. Later on in his reasons for his
decision, the
chairman said:
“Charges 2 and 3 relate to the neglect of duties, and according to
the Disciplinary Code this categorised as a minor offence unless
such
neglect constitutes a major (dismissible) offence owing to the nature
thereof. I believe that in this case the offence can indeed
be
considered as major, due to the very serious negative consequences)
to the Company of Mr Mawelele’s actions on the night of
15/11/2000.
The aggravating factors here outweigh the mitigating factors and the
trust relationship between the company and Mr Mawelele
has been
broken…”
.
He then said that he was, therefore, upholding the
penalty of dismissal given for the acts of “
misconduct
under charges 1-4
.” The chairman of the
internal appeal was a Mr VC Botha. It may be important to note that
Mr Botha was not called to testify before
the commissioner to justify
his conclusions including his conclusion on the issue of sanction.
Accordingly, the statements he made
and the conclusions he reached
have not been subjected to the scrutiny that only cross-examination
can provide.
[12] A dispute then arose between the third respondent
and the appellant about whether his dismissal was unfair and, if so,
what should
happen about it. The third respondent then referred the
dispute to the Commission for Conciliation, Mediation and Arbitration
(“
the CCMA
”), the
first respondent herein, for conciliation. When conciliation failed
to produce a resolution of the dispute, he requested
the CCMA to
arbitrate the dispute. The second respondent was assigned to
arbitrate. In due course the arbitration was conducted and
he issued
an arbitration award in which he found that the dismissal was both
procedurally and substantively fair. He effectively
dismissed the
third respondent’s claim.
[13] The third respondent felt aggrieved by the second
respondent’s arbitration award. He brought an application in the
Labour Court
to have the second respondent’s award reviewed and set
aside. The appellant opposed the review application. The Labour Court
granted
the review application and substituted for the second
respondent’s decision a decision to the effect that the third
respondent
be given a final warning which would be on condition that
if he was found guilty of a similar offence within a period of twelve
months
he could be dismissed immediately. The appellant was aggrieved
by this order and, with the leave of the Labour Court, now appeals
to
this Court.
The appeal
[14] In order to better appreciate the issues in this
appeal it is necessary to set out the main findings and reasons that
the second
respondent advanced in his award in support of his award
as well as those advanced by the Court a quo for its decision to set
the
second respondent’s award aside.
[15] The second respondent identified the issue to be
decided in the arbitration as being whether or not the third
respondent’s
dismissal was procedurally and substantively unfair in
terms. The second respondent went on to give what purports to be a
summary
of the third respondent’s evidence, Mr Hlongwane’s
evidence as well as Mr Khoza’s evidence. With regard to procedural
fairness,
except in regard to one argument, it is not clear from the
second respondent’s award what the grounds were on which the
procedural
fairness of the third respondent’s dismissal had been
challenged by the third respondent before him. The one argument
appears in
par 18 of the award. There the second respondent pointed
out that the third respondent’s union had argued that failure to
perform
according to a work standard is not a disciplinary matter but
an incapacity matter in respect of which the third respondent should
not have been disciplined but should have been counselled and
trained. The second respondent rejected this argument on the basis
that
“(t)he reason why the [third
respondent] failed to perform according to the work standard was
because of his misconduct in leaving
his job without permission.”
He went on to say that there was no need for the counselling and
training of the third respondent. He said that this was not “
a
poor performance issue but an issue of misconduct”
.
He then went on to say that “
for this reason
and the reasons above
” he found the
dismissal procedurally fair.
[16] In the subsequent review application the third
respondent attacked the second respondent’s finding that the
dismissal was procedurally
fair. He did so in par 3.1 of his
supplementary affidavit. The basis advanced for the attack was that
the second respondent ought
not to have found that failure to work
according to a work standard was a disciplinary issue, because in
argument before him, the
parties had agreed that it was an incapacity
issue. In par 3.1 of the supplementary affidavit, the third
respondent said in part:
“
At the
arbitration, the representative of the [appellant], Mr Hlongwane
(“Hlongwane”), agreed that failure to perform according
to a work
standard is incapacity or poor work performance. Given the agreement
of the parties regarding this issue, the commissioner
ought to have
considered whether the failure to adhere to a work standard was
deliberate, negligent or as a result of a lack of training.”
[17] In its answering affidavit the appellant does not
deny the third respondent’s statement that its witness, Mr
Hlongwane, agreed
during his evidence that failure to perform
according to a standard is an incapacity issue and not a disciplinary
matter. However,
the appellant states that the commissioner was
justified in concluding that the conduct constituted misconduct in
view of Hlongwane’s
evidence that:
- “
(t)he [third respondent]
previously failed to meet standards, and
- the [appellant] gave training to the [third
respondent] and
- the
[third respondent] knew what was expected of him”
The appellant goes on to say that in view of all this
the third respondent’s conduct constituted misconduct and not
incapacity.
It says that the third respondent’s conduct was clearly
not a result of lack of training or understanding but “
of
negligent or deliberate behaviour of the [third respondent].”
In the view I take of the complaint concerning the splitting of
allegations of misconduct which I deal with later, this issue falls
away and need not be decided.
[18] On the question whether the dismissal was
substantively fair, the commissioner referred to the matters listed
in item 7 of the
Code of Good Practice: Dismissal. With regard to the
allegation of leaving work early without permission, the commissioner
said that
the third respondent testified that Mr Hlongwane had
previously told him that he could leave before the end of his shift
without
the permission of his superior provided that he delegated his
responsibilities to somebody else. The commissioner brushed this
evidence
off by saying:
“I am of the opinion
that this must have been an isolated incident and that the [third
respondent] should still have realised that
there might be situations
where it will be inappropriate not to inform his supervisor of his
whereabouts.”
[19] Although it would appear that there were no
managers senior to the third respondent in the evening from whom he
could have asked
for permission to leave work early in the absence of
Mr Hlongwane, he neither explained nor was asked to explain why he
did not ask
one of them for permission before they knocked off
because he knew as early as 13h00 or 14h00 that he would need to
leave early to
attend the workshop the following morning. I shall not
use this against him as it would be unfair since he was not asked
this and,
therefore, did not get a chance to comment on it.
[20] Although Mr Hlongwane suggested under
cross-examination that the third respondent should have asked for
permission to leave early
from other managers during the day before
they could leave, he did not persist in this when it was put to him
that the third respondent
did not seek such permission because he had
power to delegate his duties and leave. In response to this Mr
Hlongwane said instead
that the third respondent should have
“
assessed the risk more especially we had …
[inaudible] whether on that day in question. Managers had to stay on
until operation,
everything is back to normal.”
In re-examination Mr Hlongwane was asked what kind of tasks the third
respondent had power to delegate and whether he had absolute
powers
in this regard. Mr Hlongwane’s answer was “
Ja,
absolute powers, but again he had to assess, evaluate the type of
instruction given to his subordinate. For example, a supervisor
will
be delegated to go over and inform a driver to move from one parking
bay to another, but something that involves crisis management
like
serious planning because or certain elements in that respect…”
[21] When the third respondent was asked why he did not
obtain permission to leave early from the managers who were present
during
the day, his response was initially that he had no way of
communicating with such managers because he had no cellular telephone
and
the other telephones “
were not going
out
.” However, when it was put to him that
he could have used someone else’s cellular telephone to communicate
with those managers,
his answer was that he did not see any need to
do so because Mr Hlongwane had previously created a precedent in
terms of which he
could delegate his duties to someone else and
leave. The third respondent said that this occasion was not the first
time for him
to leave early.
[22] With
regard to substantive fairness or otherwise of the dismissal, the
commissioner first dealt with “
charge 1
”
which the third respondent had faced in the disciplinary inquiry.
That is the allegation that the third respondent had left work
early
without permission. It is appropriate to remember that the third
respondent left one hour earlier than he was supposed to do.
It is
also appropriate to remember that his leaving early was not for his
own personal reason but was to enable him to go home rather
early to
prepare for the employer’s own workshop. It is as well to remember
that in leaving early he did delegate his responsibilities
to someone
that he knew Mr Hlongwane had had occasion to approve as somebody to
whom he, that is the third respondent, could delegate
his
responsibilities.
[23] The commissioner stated that, when Mr Hlongwane had
previously said to the third respondent that the latter could leave
the workplace
before the end of his shift, that “
must
have been and isolated incident and that the [third respondent]
should still have realised that there might be situations where
it
will be inappropriate not to inform his supervisor of his
whereabouts.”
[24] The commissioner went on to say that he was of the
opinion “that the [third respondent] abdicated his responsibilities
on the
day in question and did not delegate as alleged by him.” He
pointed out that according to the appellant’s disciplinary code a
first offence of this kind would attract the sanction of a written
warning.
[25] Thereafter the commissioner went on to deal with
the second charge. That was that the third respondent had failed “
to
perform work according to work standard i.e. failing to provide buses
for SA 482 (2125) and SA1734.”
I need to
also refer to the third charge. The third charge was:
“leaving
subordinate with responsibilities that he cannot carry out before
shift end.”
The fourth charge was:
“bringing the company’s name into disrepute by failing to meet
service standards.”
[26] Mr Hlongwane conceded in his evidence that the
third respondent had power to delegate his responsibilities to
somebody else but
he emphasised that the third respondent was
required to carefully assess his responsibilities, the situation and
the person to whom
he sought to delegate carefully. Mr Hlongwane did
not anywhere specify any clear basis why he thought that Mr Khoza was
not suitable
as a candidate for the delegation of the third
respondent’s responsibilities either in general or on the
particular night. In fact,
for the third respondent to be guilty of
misconduct as a result of delegating his responsibilities to Mr Khoza
it could not have
been enough for Mr Hlongwane to show that Mr Khoza
was not suitable for the delegation of the third respondent’s
responsibilities.
What would be required is either that the third
respondent had been instructed not to delegate to Mr Khoza or that
his power to delegate
did not include power to delegate to a category
of persons to which Mr Khoza belonged or it would have had to be
shown that delegating
to Mr Khoza was so obviously wrong that anybody
in the third respondent’s position, acting reasonably and
exercising proper judgment,
could not possibly have delegated such
responsibilities to Mr Khoza. Mr Hlongwane’s evidence did not
reveal any of the three options.
On the contrary it was proved that
there was a precedent in terms of which the third respondent had
delegated his responsibilities
to Mr Khoza with Mr Hlongwane’s
knowledge and there were no complaints about how Mr Khoza had
discharged such responsibilities
in the third respondent’s absence.
[27] The commissioner found that the third respondent
was guilty of all the four alleged acts of misconduct. I have already
said that
in respect of the first offence, the commissioner said that
the disciplinary code provided for a written warning as a sanction if
it was a first offence. With regard to the second alleged offence the
commissioner stated that the disciplinary code regarded it
as a minor
offence
“unless the nature of the offence
constitutes a major offence.”
He did not
say whether in this case it did or did not constitute a “major
offence” nor did he indicate what sanction would be
called for in
regard to such offence.
[28] With regard to the third offence the commissioner
said that in terms of the disciplinary code it was also seen as a
minor offence.
He then stated that the third respondent had argued
that he was entitled to delegate his duties and that he had delegated
his duties
to Mr Khoza. The commissioner expressed the view that as a
manager the third respondent
“should have
realised that he cannot delegate all his duties to other persons and
that there will be situations where it will be
improper to delegate.
From the evidence it appears that the [third respondent] abdicated
his duties and did not delegate as he alleges.”
[29] The commissioner provided absolutely no reason or
basis for his opinion that the situation which prevailed on the night
in question
was a situation in which the third respondent should have
realised that he should not delegate. He also provided no basis nor
reason
for his statement that the third respondent had abdicated his
responsibilities on the night in question and that he had not
delegated
as he said that he had. In fact the commissioner’s
statements in this regard are completely without any basis. Indeed,
his statement
that the third respondent did not delegate is contrary
to uncontradicted evidence that was given by not only the third
respondent
but, indeed, also by Mr Khoza that the third respondent
did delegate his responsibilities to Mr Khoza. Indeed, even the
appellant
had accepted that the third respondent had delegated his
duties to Mr Khoza. The third respondent asked Mr Khoza to in effect
step
into his shoes in his absence and Mr Khoza did precisely this.
[30] With regard to the fourth charge, the commissioner
stated that the disciplinary code provided for a written warning as a
sanction
for such an offence. He did not say much about this offence.
[31] At this stage it is convenient to point out that
one of the bases upon which the third respondent challenged the
commissioner’s
arbitration award was that he had dealt with the
matter on the basis of him being guilty of four acts of misconduct.
He contended
that this was a case of a splitting of charges. In this
regard the third respondent referred to that part of the arbitration
award
where the commissioner said:
“If the
charges are looked at in isolation it appears that written warnings
would have been the appropriate sanction in the circumstances.
However, if the charges are combined the situation changes
significantly … I cannot fault the employer for deciding to dismiss
the applicant.”
The third respondent went
on to complain in the founding affidavit that
“(t)he
commissioner furthermore did not consider whether the [appellant]
acted fairly by charging me and dismissing me for several
acts of
misconduct in relation to a single act (i.e. leaving my workplace
before the end of my shift, without permission).”
[32] The third respondent contended that the
commissioner exceeded his powers or committed misconduct in relation
to his duties as
a commissioner and that his findings are
unjustifiable on the evidence properly before him. In the
supplementary affidavit the third
respondent pointed out that Mr
Khoza’s evidence had established that the main reason for the
problems that occurred on the night
in question after he had left was
the breakdown of the bus. He stated that even if he was present at
the time, there is not much
he could have done which Mr Khoza could
not do. He also pointed out that the commissioner said in his award
that at the time of his
dismissal the third respondent had been in
the position in which he was for three years when in fact the
evidence before him was
to the effect that he had been in the
position for three months. The third respondent submitted that this
was evidence that the commissioner
had not applied his mind to the
evidence before him.
[33] A reading of the appellant’s answering affidavit
reveals that the appellant is not able to put up a persuasive case
against
the third respondent’s criticism of how the commissioner
dealt with the role in the case of the breakdown of the buses on the
night
in question. The third respondent pointed out in his affidavit
that Mr Khoza had testified that, if his bus had not broken down,
there would have been no delay in transporting passengers from the
aircrafts to the airport building. That evidence by Mr Khoza was
uncontradicted. The commissioner deals with this point by saying that
that is why the third respondent should not have left early.
That
reasoning is untenable. It is common cause that the third respondent
was entitled to delegate his powers to a subordinate. Obviously
he
would delegate his powers if he was not going to be available or able
to exercise such powers. Accordingly, if he delegates his
responsibilities to someone else and while he is away a bus breaks
down, you can not say that that shows that he should not have
delegated his powers. If one says that, that would mean he should
never delegate to someone else because, if something happens while
he
is away, it will be said that he should have been present.
[34] In my view the correct approach which the
commissioner ought to have adopted is to ask himself whether on the
evidence before
him the third respondent ought reasonably to have
forseen that, if a bus broke down, Mr Khoza would be able to take
whatever steps
that the third respondent could reasonably be expected
to take in such circumstances. Quite obviously, the third respondent
delegated
his responsibilities to Mr Khoza because he had confidence
in him that he could satisfactorily deal with any situation that
could
arise in his absence. If the third respondent had no basis for
thinking that Mr Khoza would be able to deal with the situation, then
he could be faulted. However, if the third respondent’s confidence
in Mr Khoza had a reasonable basis then the third respondent
cannot
be faulted for having delegated his responsibilities to Mr Khoza even
if the latter ultimately did not perform as expected.
[35] In the arbitration proceedings no witness,
including Mr Hlongwane, gave any evidence upon which it can be said
that the third
respondent’s confidence in Mr Khoza had no basis or
no proper basis. On the contrary the uncontradicted evidence was that
not only
had Mr Hlongwane previously approved the third respondent’s
delegation of his duties to Mr Khoza but also that there had been no
complaints about Khoza’s performance in this regard in the past.
[36] It was suggested that the third respondent should
not have delegated his responsibilities to Mr Khoza because Mr Khoza
had no
power to stop drivers leaving at the time that they left.
There are two answers to this. First, in delegating his
responsibilities
to Mr Khoza to do his job in his absence, the third
respondent obviously also delegated – even if by implication –
his authority,
if he had any, to prevent the drivers from leaving at
the time that they did. Mr Khoza was in the third respondent’s
shoes and
should have stopped the drivers from leaving if he thought
that that was necessary. Second, Mr Khoza’s evidence clearly
established
that, had there been no breakdown of his bus, there would
have been no delay in transporting passengers. This must mean that
the
fact that certain drivers had gone home at the time that they did
ultimately had no bearing on the matter. This brings me to the
issue
of causation, namely, that what caused the delay in the provision of
transport to passengers was not the third respondent’s
absence, nor
the fact that certain drivers had left but that Mr Khoza’s bus
broke down. It must be remembered that Mr Khoza’s
uncontradicted
evidence was that, when he asked the passengers to wait while he went
to fetch another bus, the passengers were not
prepared to wait and
they proceeded to walk or run in the rain to the airport building.
There is no evidence to suggest that in this
regard Mr Khoza acted
less than diligently in his handling of the situation arising from
the breakdown of the bus. Indeed, this was
not put to him In my view
the commissioner’s reasoning in regard to this important aspect of
the matter is, indeed, irrational
and his finding unjustifiable.
[37] I also agree with the third respondent’s
contention that his being charged with four charges in this matter
constituted a splitting
of charges. The one clear charge was the
first charge, namely, that the third respondent left his workplace
before the end of his
shift without permission. However, the second
charge, namely, failing to provide buses, could clearly not properly
constitute a valid
charge on its own against him because, obviously,
if he was not at work, which flows from the first charge, he could
not provide
buses. Failure to provide buses might have simply been a
consequence of his being absent from work. Accordingly, that charge
should
not have been put to him as a separate charge.
[38] The third charge, namely, leaving a subordinate
with responsibilities that he could not carry out, can stand on its
own. It relates
to his obligation to exercise proper care or judgment
in delegating his responsibilities. However, as I have already said,
no proper
evidence was presented that would justify a conclusion that
the third respondent acted unreasonably in choosing Mr Khoza as the
person
to delegate his responsibilities to on the night in question.
In this regard the commissioner misconstrued the inquiry and failed
to focus on the correct issue.
[39] The
fourth charge, namely, bringing the company’s name into disrepute
by failing to meet service standards also relates to
the fact that
passengers were not provided with buses to transport them from the
aircrafts to the airport building. That related
to the same thing as
the second charge. The third respondent should not have been charged
separately with the fourth charge.
[40] From the above it is clear that the appellant could
competently have charged the third respondent with two acts of
misconduct,
namely, the first and the third charges. I have already
concluded above that there was no proper basis upon which the
commissioner
could justifiably have concluded that the third
respondent was guilty of the third charge. That leaves us with the
first charge.
It is common cause that the third respondent left the
work place one hour earlier. It is also common cause that he did not
ask for
permission from anybody to leave when he did. The issue is
whether he was required to have asked for such permission. He says he
did not have to because Mr Hlongwane had previously said that he
could delegate his responsibilities to someone else. Mr Hlongwane
admits that the third respondent had power to delegate his
responsibilities but makes two other points. The one is that the
third
respondent was required to assess the situation properly before
he could delegate. The second is that, even though he had power to
delegate his responsibilities, he was still required to have sought
permission from other managers who were present during the day
to
whom the third respondent reported in Mr Hlongwane’s absence. In
response to this the third respondent’s evidence is rather
unsatisfactory. At one stage he said that at the time that he left,
all those mangers had left and he could not contact them because
he
had no cellular telephone and the telephones in the offices were “
not
going out
”. When it was suggested to him
that he could have asked someone else to let him use his cellular
telephone, he said that he did
not need their permission to leave
early anyway.
[41] I am inclined to think that the fact that the third
respondent could delegate his powers and responsibilities to someone
else
did not necessarily mean that he could leave his workplace
without permission. It must have meant that, when he was within the
workplace
but unavailable to perform some of his responsibilities, he
could delegate or that when he was to be absent from the workplace
with
his superior’s permission, he could delegate. It was not a
licence for him to come and go as he pleased without permission.
Accordingly,
I am of the view that the commissioner’s finding that
he was guilty of the first charge is justifiable.
[42] The third respondent has criticised the
commissioner for not also taking into account the fact that he was
working voluntary
overtime when he left one hour earlier. The
appellant’s reply to this is that the third respondent did not
bring such fact to the
attention of the commissioner during the
arbitration and can, therefore, not now criticise the commissioner
for not taking it into
account. The third respondent did not reply to
this. In my view the appellant’s point is a valid one.
[43] I have said above that the matter must be decided
on the basis that the third respondent was telephonically informed
that the
flight in which Mr Hlongwane was going to be travelling was
delayed. I did not necessarily say this because I found Mr
Hlongwane’s
version more probable than that of the third
respondent. I did so simply because Mr Hlongwane’s evidence that
this had occurred
was not challenged under cross-examination. I wish
the CCMA could urge its commissioners to please explain to parties
who are not
represented by legal practitioners, that when they
cross-examine a witness, they must put to such witness their client’s
version
to such witness in all material respects in so far as such
witness may be able to comment thereon because, failure to so explain
results sometimes in a party not putting its version to such witness
which means it would be unfair to use such version when such
witness
did not have the opportunity to comment thereon.
[44] The next question is whether, with the third
respondent being guilty of only the first charge, the sanction of
dismissal was
fair. The commissioner said in his award that the
appellant’s disciplinary code provides the sanction of a written
warning for
such offence. In his award the commissioner only
concluded that dismissal was a fair sanction after he had said that,
if the charges
were considered in isolation, written warnings would
have been appropriate but that if they were considered collectively,
“the
situation changed significantly”. From this there can be no
doubt that he would not have considered dismissal to be an
appropriate
sanction if the third respondent was guilty of only one
of the charges, particularly the first charge.
[45] The Court a quo refused to consider the third
respondent’s complaint that the commissioner had decided the matter
on the basis
of split charges because the third respondent had not
raised such issue before the commissioner. This is one of those
points which
the third respondent was entitled to raise on review
even if he had not raised it before the commissioner. Accordingly, I
am unable
to agree with the Court a quo that, because he had not
raised it in the arbitration, the third respondent could not raise it
on review.
It is interesting to note that later in its judgment the
Court a quo also expressed the view that the third respondent should
have
been charged with one act of misconduct and not four. In that
sense it may be said that it ultimately dealt with the matter on the
basis that there was only one offence.
[46] The Court a quo also said that the third respondent
had no right to delegate his duties to Mr Khoza. This statement by
the Court
a quo is contrary to uncontradicted evidence by the third
respondent as well as Mr Hlongwane’s own evidence. Accordingly, it
cannot
be sustained.
[47] The evidence about the third respondent’s
disciplinary history is not very clear in the record. Indeed it is
rather confusing.
In the view I take of the matter it does not appear
that it is critical.
[48] I have earlier on referred to the fact that Mr
Hlongwane and the third respondent gave conflicting evidence about
whether or
not the two of them spoke to each other that evening. It
was never put to Mr Hlongwane that the third respondent would deny
having
spoken to him that evening or that day. The consequence hereof
is that the matter must be decided on the basis that Mr Hlongwane
did
telephone the third respondent during the evening of the 15
th
November 2000 and did tell him that the aeroplane he was going to be
taking from East London to Johannesburg was delayed. Even though
the
matter must be decided on the basis of the appellant’s version on
this point, I do not think that, when regard is had to all
circumstances of the case as revealed by the evidence, this makes any
difference. I say this because there is no suggestion that,
if the
third respondent had known that the aeroplane from East London was
delayed, he would have been acting unreasonably if he left
work at
the time that he did having delegated his responsibilities to Mr
Khoza or that it would have been unreasonable of him to
delegate his
responsibilities to Mr Khoza or that Mr Khoza would have been unable
to cope with the situation if his bus had not broken
down.
[49] In conclusion it seems to me that the third respondent’s
contention that the commissioner’s decision that dismissal was
fair
in the circumstances of this case was unjustifiable is correct when
regard is had to the fact that he was not guilty of four
acts of
misconduct and the commissioner failed to appreciate this and when
regard is had to the facts of the case. Accordingly, the
Court a quo
was correct in setting his award aside even though I do not agree
with some of its reasons for that decision. The Court
a quo also
replaced the award of the commissioner with an award that included
that the third respondent be given a final written
warning and “
that
should he commit a similar transgression in the next two years he may
be dismissed immediately”
. I have doubt
that such condition is warranted or even competent. However, the
third respondent did not note a cross-appeal against
that part of the
order of the Court a quo and, that being the case, I shall say no
more about it.
[50] In the order that the Court a quo made it did not,
after setting aside the arbitration award, expressly replace it with
an order
of reinstatement. It only ordered that the third respondent
be given a final written warning on the condition to which I have
referred
above. However, there can be no doubt that the Court a quo
was of the view that the commissioner ought to have ordered the
appellant
to reinstate the third respondent. This flows from the fact
that the Court a quo expressly stated that the correct sanction for
the
third respondent’s misconduct was a final written warning and
that this had to be on condition that, if he was found guilty of
a
similar act of misconduct within twelve months, the third respondent
could be dismissed immediately.
[51] What the Court a quo did not deal with in its
judgment is whether or not the order of reinstatement that the
commissioner ought
to have made should have been one operating
retrospectively and, if so, up to what date retrospectively. While it
may be argued that
an order of reinstatement is necessarily implied
in the order that the Court a quo made, it cannot be said that the
reinstatement
was ordered to be retrospective is also implied in the
order of the Court a quo. Since the third respondent did not note a
cross-appeal
against the Court a quo’s failure to make such implied
order of reinstatement retrospective, I do not think that it is open
to
this Court to consider that issue. The retrospectivity that I am
referring to does not relate to the period between the date of the
issuing of the arbitration award and the date of the order of the
Court a quo or indeed the date of this order. It relates to the
period between the date of dismissal and the date of issuing of the
award.
[52] In the light of this the reinstatement order that
is implied in the order of the Court a quo as the reinstatement order
that
the commissioner should have made would have run from the date
of the issuing of the arbitration award. I shall make an order that
reflects this. That means that the third respondent would have lost
out on remuneration covering the period from the date of the
dismissal to the date of the delivery of the award.
[53] As to costs I am of the view that the requirements
of law and fairness dictate that no order as to costs should be made
on appeal.
I note that in the Court a quo no costs were awarded.
[54] In the result I make the following order:
The appeal is dismissed.
There is no order as to costs on appeal.
The order of the Court a quo is set aside and
replaced with the following order:
The review application succeeds.
No order is made as to costs.
The arbitration award issued by the commissioner in
this matter is hereby reviewed and set aside and in its place the
following
order is made:
The applicant’s dismissal was substantively
unfair.
The respondent is ordered to reinstate the
applicant in its employ on terms and conditions no less favourable
to him than the
terms and conditions which governed his employment
immediately before his dismissal;
the order in (ii) above shall operate from the
date of the issuing of this award;
there is to be no order as to costs.”
Zondo JP
I
agree.
Kruger
AJA
I
agree.
R
Pillay AJA.
Appearances:
For
the appellant : Mr A.N. Kruger
Instructed
by : Cheadle Thompson & Haysom
For
the respondent : Mr C Orr
Instructed
by : Hofmeyr Herbstein & Gihwala inc
Date
of judgment : 15 June 2007