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[2010] ZALAC 44
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Russel Furnitures (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (DA 21/08) [2010] ZALAC 44 (26 February 2010)
1
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT:
JOHANNESBURG
CASE
NO
: DA 21/08
DATE:
2010-02-26
10 In the
matter between
RUSSELS FURNITURES (PTY) LIMITED
...........................................
Appellant
And
THE CCMA & OTHERS
.......................................................................
Respondent
_____
_____________________________________________________
Coram: DAVIS JA, JAPPIE JA, REVELAS AJA
20
__________________________________________________________
J U D G M E N T
__________________________________________________________
DAVIS JA:
The third
respondent was employed by appellant as a business manager for the
Russels Chatworth store. It appears from the papers
to be one of the
five most lucrative stores in the Russels division. He was dismissed
on 13 December 2005, after failing to attend
an incapacity hearing to
which I shall refer later. He referred a dispute concerning the
fairness of the dismissal to the first
respondent. Where the dispute
was not resolved in conciliation, it was then referred to
arbitration. The arbitration was conducted
by the second respondent
who dismissed the claim for unfair dismissal and made no order as to
costs.
The third respondent then brought an
application to review and set aside the award on 18 November 2006. In
this, he proved to be
successful before Cele J, who in a judgement on
27 August 2008, reviewed and set aside the award and remitted the
matter to first
respondent for a
de
novo
arbitration hearing
before a commissioner other than the second respondent.
It is against this judgement that the
appellant sought to option leave to appeal.
Briefly the chronology the events
giving rise to the dispute can be summarised thus:
On 1 July 2005, appellant (Russels)
received a grievance against the third respondent from 11 employees
employed at its Chatworth
store. It appeared that their complaint
focused on third respondent’s conduct and behaviour. They
considered that it was
impossible to work with him. On the same day,
he was suspended on full pay with immediate effect, on the basis that
the conduct
which was alleged was so serious that no other approach
could be adopted. His suspension was made subject to the conclusion
of
investigations into these allegations of incompatibility.
On 5 July 2005, Mr Roets, the Russels
Human Resources Manager held a discussion with third respondent
concerning the suspension.
A notice to attend a grievance hearing was
then handed by Mr Roets to third respondent on 7 July 2005. Third
responded refused
to attend and then submitted his own grievance
against Mr Roets. He referred the matter to first respondent alleging
an unfair
labour practice because of alleged victimisation by the
employee together with the decision to suspend him on 6 July 2005.
Third
respondent consulted a psychiatrist specialist who declared
that he was unfit to work from 6 July 2005 to 30 July 2005.
On the same day, Russels head office
replied to third respondent and indicated that the company was in
receipts of his grievance
and intended to deal with the grievances
from the staff of the Chatworth’s store but that the grievance
could not effectively
be resolved in his absence.
On 7 July, third respondent did not
attend the grievance hearing. During the period 28 July to 5 August,
it appears the third respondent
was a patient in Umhlanga Hospital.
From 5 August to 30 September 2005, he was ill and did not work. On
30 September, he obtained
a medical certificate from the same
specialist, a psychiatrist reflecting that he was unfit for work from
1 September to 30 September
2005 due to depression.
On 30 September 2005, he received a
notice to attend a consultation on 2 October 2005. A meeting was held
between third respondent
Mr Roets and Mr Kingsley who was another
human resource manager at Russels. The minutes reflect that third
respondent’s incapacity
was described as “depression,
knee injury and heart problems”. It was agreed that an
application was made for a temporary,
medium term disability.
Mr Roets filled out an acknowledgement
of disability claims procedure document, for submission to Russell’s
insurers in order
to obtain a disability payment of 100 per cent of
third respondent’s salary for the first three months from his
last date
of active service and 75 percent for a maximum of an
additional three months thereafter.
On 13 October 2005, third respondent
was informed that he had been effectively off sick since 6 July until
13 October 2005 when
serious operational problems have been generated
at the branch because of his absence. He was removed as a manager of
the branch
and replaced with another manager. On 18 October 2005,
third respondent’s attorney wrote to Russels denying that he
could
not function at the branch and requested that the suspension be
lifted on 1 November 2005. The parties met to consider an unfair
labour practice dispute brought by third respondent. During the
meeting, an offer was made to settle the dispute concerning
outstanding
leave pay and salary but this is not accepted.
On 3 November 2005, Russels notified
third respondent to attend a grievance hearing in respect of the
complaint that had been generated
at the Chatworth branch. That
meeting was to be held on 4 November. On the same day, third
respondent’s attorney wrote to
Russels to inform the company
that third respondent had suffered a relapse because of high blood
pressure and depression. Again
the question of an incapacity
application was raised.
On 4 November 2005, Russels replied,
informing third respondent that he remained on suspension until a
grievance hearing could be
completed and that respondent’s own
grievance hearing would stand over until after the termination of the
so called Chatworth’s
grievance hearing. It appears that third
respondent declined temporary disability and that company would make
no application on
his behalf to the insurers in this regard. Third
respondent did not attend the grievance hearing scheduled for that
day.
On 9 November, third respondent’s
attorney sent Russels two medical certificates which effectively
booked him off from 2 November
to 30 November. On 14 November,
Russels replied to the third respondent’s attorney’s
letter of 9 November. On 1 December
2005, third respondent obtained a
further medical certificate, booking him from 1 December to 15
December. On 7 December, third
respondent received a notice to attend
a grievance hearing on the following day, that was 8 December, to
deal with the so called
Chatworth grievances. Third respondent’s
attorney replied to the effect that a CCMA hearing concerning the
unfair labour
practices had been postponed to 25 January 2006 and for
that reason he would not attend the grievance hearing. Mention was
also
made of the medical certificate report, booking the respondent
off until 15 December 2005.
On 9 December, third respondent’s
attorney wrote saying that third respondent could not attend the
incapacity consultation
which had been scheduled for 12 December, as
he had a visit scheduled with the psychiatrist on that day. On 12
December he did
not attend the incapacity consultation. On 13
December, third respondent again did not attend the incapacity
hearing and he was
then dismissed.
It is also relevant to the chronology
of events, to refer to a letter which was generated by Mr Roets on 13
December 2005, written
to third respondent regarding the incapacity
consultation. The letter reads,
inter
alia
, as follows:
“
On
13-12-2005, you again failed
o attend this consultation.
The Chairman of the proceeded with
the consultation in your absence.
This consultation consisted of two
categories of concern:
Your inability to relate to your
employer and your fellow
Colleagues, thereby rendering
you incompatible for a position,
as an employee of Russels.
Your absence from your place
of work over an extended period
of time, rendering you unable to
fulfil your contractual obligations
for which you were appointed.
After considering all the available
facts relating to the above, the
Chairman found in terms of the outcome
of this hearing that the Company is
left
with no other option, other than to
terminate
your serviced with effect from
13-12-2005
with one month’s salary in lieu
of notice”
As Mr Redding who appeared on behalf
of the appellant observed, there had been four attempts to hold a
grievance hearing on 7 July
when third respondent was too ill to
attend, on 1 September when he again failed to attend because he was
ill, on 4 November where
it was alleged that he suffered a relapse of
depression, on 8 December where he refused to attend because he was
too ill. There
was also a hearing of the first respondent which was
pending on 25 January 2006, to deal with his unfair labour practices.
In short, the entire saga had taken
over six months and serious questions relating to third respondent
had remained unresolved during
this period.
When the decision of Russels was taken
to the second respondent on review, the latter made a point in the
introduction to her award
that the notice of the incapacity
consultation had raised the question of the extended absence from
work, the ability to perform
according to a required standard that
could determine the dispute
.
However, she also noted that the
letter which had been sent to the third respondent, to which I have
already made reference, that
is the letter of 13 December 2005, had
raised two categories of concern, incompatibility and an absence from
work. Having heard
evidence from both the representatives of Russels
and third respondent, the second respondent said the following:
“
Applying
these tests to the current facts
concerning incapacity, what is clear
is that Applicant’s incapacity
was of
a recurrent nature. The recurrence
was frequent to the point of the
extent that it continued over a period
of some six months. The effect was
serious on the operations of the
Chatworth
branch of the Respondent. The
Applicant was off for some 159 days in
the context where, whatever the rights
and wrongs of the grievance may have
been there was clearly a serious
problem
between him a significant body of the
staff at the store that had to be
dealt
with and resolved.”
She then went on:
“
It is in
this context, I have to assess
whether the decision to dismiss was
reasonable. It does not have to be
a decision I would have made in the
situation or even the only reasonable
decision. It merely has to be a
reasonable
response to the situation….
I am not satisfied the decision
by the employer to terminate the
employment contract was not reasonable
and in the result cannot interfere
with or uphold the decision.”
At this stage of the award, the second
respondent had dealt exclusively with what she categorised as “his
frequent and erratic
periods of absence from work.”
Having made the decision that the
termination of the employment contract was not unreasonable, she then
turned to the further issue
regarding the alleged confrontational and
aggressive approach of the third respondent which Russels had alleged
resulted in incompatibility
between him and his colleagues.
Thereafter she went on to say, “I accordingly find the
dismissal to be fair”.
I mention this treatment of the second
of the two categories of complaint, being incompatibility because
when the matter was heard
by Cele AJ, (as he then was) this question
played a crucial role in the reasoning of the learned judge.
The court
a quo
was faced in
effect, with an application to review the decision of second
respondent.
In coming to the conclusion that it
should b set aside, Cele AJ said the following:
“
Today I have
to ask myself whether
the decision reached by Commissioner
is the one that a reasonable decision
maker could not have reached. If I say
yes, it is the one that a reasonable
decision maker could not have reached,
I should review the award. If I say it
falls
within the range of reasonableness,
it is one of those decisions that
could
have been reached by a reasonable
decision maker, I should then sustain
it.
What worries me in this matter which
favours
me granting the application for
review, is firstly
the Notice of Incapacity
Consultation….
It relates to the issues that would be
dealt
with at such incapacity as extended
absence on leave and incapacity to
perform according to a required
standard or standards due to ill
health
or injury”.
That is the notice that had been given
to appellant. If he attended that hearing he should have prepared for
only that but the outcome
of that hearing as I see it, reads:
“
This
consultation consists of two categories are concerned.” The
learned judge then goes on to set out two concerns to which
I have
made reference earlier. He then continues:
“
The first
one would have related to
an inquiry which the company intended
to hold against the applicant, it
should
have, in my view, featured in this
hearing.
It is difficult to test how far the
mind of the
Commissioner was contaminated by this
matter, which in my view, should not
have
featured. If you look at the award
itself,
she continues to add and she looks at
a
combination of the two issues.”
It is important before examining this
reasoning, to again refer to the approach which is now determinative
of these hearings as
laid out Navsa AJ, in
Sidumo & Another v
Rustenburg Platinum Mines & others
, (2007) 28 ILJ 2405 (CC).
Briefly the learned Judge says, paragraph 109-110:
“
Review for
reasonableness does
not threaten the distinction between
review and appeal. The Labour Court
in reviewing awards of commissioners
inevitably deals with the merits of
the
matter. This does tend to blur the
distinction
between an appeal and review.”
To summarise, Carephone held that
section 145 of the LRA was suffused by the then constitutional
standard that the outcome of an
administrative decision should be
justifiable in relation to the reasons given for it. The better
approach is that section 145
is now suffused by the constitutional
standard of reasonableness. That standard is the one explained in
Bato Star:
“
Is the
decision reached by the
commissioner, one that a
reasonable decision maker could
not reach? Applying it will give
effect not only to the constitutional
right to fair labour practices but
also to the right administrative
action which is lawful, reasonable
and procedurally fair.”
In short, the test of reasonableness
is designed to ensure that the labour courts not to conflate the
tests of review and appeal,
and not to substitute their own decisions
for that of the decision maker but merely, on the conspectus of
facts, to interrogate
whether the decision reached was one that a
reasonable decision maker could reach on the facts.
To some extent this court has added a
coda to the dictum of Navsa AJ,in the
Fidelity Cash Management
Services CC v CCMA & others
, (2008) 29 ILJ 964 (LAC) in which
Zondo JP, emphasised that an arbitration award cannot be set aside
simply because the reviewing
court would arrive at a different
decision to that of the commissioner. The learned Judge President
went on to say at Para 102:
“
However
other reasons upon which
the Commissioner did not rely to
support his or her decision or finding
but which can render the decision
reasonable or unreasonable can be
taken into account. This would clearly
be the case where the Commissioner
gives reasons A, B and C in his or
award,
but, when one looks at the evidence
and other material that was
legitimately
before him or her, one finds that
there
were reasons D, E, and F upon which
he did not rely but could have relied,
which are enough to sustain the
decision.”
In other words, when a court reviews a
decision of second respondent, it tests not on the basis of its own
decision but in terms
of a decision of a reasonable decision maker.
The conspectus of facts which can be taken into account to answer
this question,
are those before the reviewing court, which would then
allow the reviewing court to say, in the words of Zondo JP, there are
also
reasons D, E and F which were not relied upon by the decision
maker but which could have been relied upon, given the facts which
are established. Therefore this justifies a conclusion that this is a
decision that a reasonable decision maker would have made.
Unless this approach is adopted
carefully, far too many review applications will come before this
Court, thereby subverting the
expeditious process of dispute
Resolution. In this case, it is clear, on the facts before the second
respondent, that third respondent
was absent from work for 159 days,
that he held a responsible position and that this absence clearly
caused considerable difficulty,
to the operational enterprise of
Russels.
The second respondent, in her
decision, took account of these facts and came to a conclusion, that
based, on the law as she had
set it out, this lengthy absence which
had a serious effect on the operations of the Chatworth’s
branch of the respondent,
justified the dismissal of the third
respondent. That is a decision to which a reasonable decision maker
could surely arrive.
Accordingly, I would set aside the
decision of the court a quo and replace it with the following order:
The application for review is
dismissed with costs.
There is no award for costs in respect
of this appeal.
JAPPIE, JA
)
REVELAS, AJA
)
Concur.