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[2014] ZALAC 136
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Quest Flexible Staffing Solutions (Pty) Ltd (a division of ADCORP Fulfilment Services (Pty) Ltd) v Lebogate ([2015] 2 BLLR 105 (LAC); (2015) 36 ILJ 968 (LAC)) [2014] ZALAC 136; [2014] ZALAC 55 (21 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JA 104/13
In the matter between:
QUEST
FLEXIBLE STAFFING SOLUTIONS (PTY) LTD
(A
division of ADCORP FULFILMENT SERVICES (PTY)
LTD)
Appellant
and
Abram
Legobate
Respondent
Heard:
18 September 2014
Delivered:
21 October 2014
Summary: Review of
arbitration awards - Employee dismissed for misconduct - commissioner
finding dismissal fair. Labour Court finding
dismissal not
appropriate sanction- Labour setting aside award- Appeal. Review test
and distinction between appeal and review restated-review
test a two
stage enquiry – Labour Court failing to deal with the second
leg of enquiry as to whether the commissioner failure
to apply his
mind affected the outcome of the proceedings thus rendering the award
unreasonable- commissioner considering all factors
into the
appropriateness of the sanction- award reasonable. Labour Court’s
judgment set aside- Appeal upheld.
Coram: Musi JA, Murphy
and Kathree-Setiloane AJJA
JUDGMENT
KATHREE-SETILOANE AJA
[1]
Quest Flexible Staffing Solutions (Pty) Ltd (“the appellant”)
appeals against the judgment of the Labour Court (Molahlehi
J) in
which it granted a review application brought by the respondent, and
substituted the award of the Commissioner with an order
that the
respondent’s dismissal by the appellant was substantively
unfair and that he be reinstated.
[2]
The basis for the appeal as contended for by the appellant is that,
the Labour Court misapplied the review test as enunciated
by the
Constitutional Court in
Sidumo,
[1]
by adopting a test akin to an appeal and far less stringent than that
endorsed by the Supreme Court of Appeal (“SCA”)
in
Herholdt
[2]
and by this Court in
Gold
Fields.
[3]
The appellant contends that but for its error in the application of
the review test, the Labour Court would not have granted the
review
application. For this reason, it submits, the appeal should be
upheld.
[3]
The factual background that gave rise to this dispute is largely
common cause. The appellant is a Temporary Employment Service
provider (“a TES”). On 11 May 2011, it employed the
respondent on a limited duration contract and placed him as a call
centre representative with its client, namely Multichoice in its
inbound Call Centre. The appellant had, by that stage, placed
approximately 360 temporary employees with Multichoice. On 14 May
2011, the respondent sent an e-mail to the general manager of
Multichoice complaining about access to the premises, the manner in
which overtime work was distributed, and that temporary staff
in the
Call Centre were being treated like “meerkats”.
Multichoice brought the e-mail to the attention of Ms Nortje,
the
appellant’s accounts manager responsible for the Multichoice
account. Ms Nortje called the respondent to a meeting where
she
discussed the issue with him. She explained to him that grievances
had to be raised with the appellant directly, and not through
Multichoice. She also instructed him not to send e-mails to
Multichoice in the future.
[4]
Some two weeks later, on 2 June 2011, the respondent responded to an
invitation from Multichoice on its intranet to comment
on the meaning
of the term “mutual respect”. This was part of an
on-going weekly company initiative to apprise staff
of Multichoice’s
values. The respondent commented as follows:
‘
I’m
asking this because most values has to be practice in the Call
Centre, but we as CSRs
[4]
we
don’t get that respect from our management. I feel we being
treated like sheep waiting to be slaughtered for a certain
ceremony,
when talking Respect what is it? what do you know about Respect…
?
Our management they swop
us around as they please, they don’t care, all they know is
that, we gonna work for their R4000.00
or go around with your CV
looking for greener pasture, they move US around without consulting
US, Billing Tech, Activation or Xtra
view, we really don’t know
and confused as our management as which Segment do really fit on, as
they keep moving US like
Hillbrow Tenants month end…
So before you mention
Respect, get your acts together and STOP harassing US, we all have
families to support, u also promised US
DRIFTERS, that we will c them
on World War 29.
RESPECT, RESPECT,
RESPECT, U need DECENCY…Amen.’
[5]
The respondent’s comment was posted on Multichoice’s
intranet and was accessible to the entire Naspers Group, as
well as
by employees of other staffing companies placed at Multichoice. As
with the first e-mail, Multichoice brought the respondent’s
comment to the attention of Ms Nortje, who together with the Call
Centre manager called the respondent to a meeting in order to
ascertain from him the “meaning” of his comment. The
respondent indicated that the comment represented his “opinion”.
During the course of the meeting, it became clear to Ms Nortje and
the Call Centre manager that the respondent did not appreciate
the
seriousness of his actions as he showed no remorse.
[6]
On 3 June 2011, and arising from the respondent’s comment, the
respondent was charged with
inter alia
“serious
disrespect” and called upon to attend a disciplinary inquiry.
On 9 June 2011, following the disciplinary inquiry
at which he was
found guilty as charged, the respondent was dismissed.
[7]
Dissatisfied with the outcome of the disciplinary enquiry, the
respondent referred an unfair dismissal dispute in terms of s
185 of
the Labour Relations Act
[5]
(“the LRA”), to the Commission for Conciliation,
Mediation and Arbitration (“the CCMA”) for conciliation
and arbitration. The conciliation failed, and the dispute was
arbitrated by the Commissioner. At the arbitration, the substantive
and procedural fairness of the respondent’s dismissal was
placed in dispute. The Commissioner found that the respondent was
guilty of misconduct in the form of disrespect, and that his
dismissal was both substantively and procedurally
[6]
fair.
[8]
As to the respondent’s understanding of the invitation to
comment on the term “mutual respect”, and his awareness
that his comment would be seen by staff and management alike, the
Commissioner found as follows:
‘
It
was common cause that on the 2
nd
of June 2011 Mr Legobate posted a message on the intranet in response
to a request to provide views on mutual respect. During the
arbitration it was clear that Mr Legobate understood the request. I
accept that he may not have been aware that the message was
seen by
the sister companies. However, he was aware that his colleagues and
managers would see the message.’
[9]
In addition, the Commissioner found that during the arbitration
hearing, the respondent had acknowledged that his message amounted
to
a grievance and that he was aware of the escalation procedure, which
had been discussed with him on 14 May 2011. Despite such
knowledge,
however, the respondent chose to post the message, but failed to
provide a satisfactory explanation for not following
the grievance
procedure. In relation to the standard of respect which management is
entitled to from employees, the Commissioner
observed as follows:
‘
Our
common law holds that there is an obligation between the employer and
employee to show each other the same degree of dignity
and respect.
Moreover even though an employee is subordinated to the employer, the
employer is enjoined to act fairly.’
[10]
The Commissioner observed in relation to the disrespectful nature of
the respondent’s comment, that, although the respondent
had
stated at the arbitration hearing that he was not angry when he wrote
the comment, it was apparent therefrom that he was deeply
bitter and
resentful towards management, and accused them of treating employees
with “disrespect” and “disdain”.
The
Commissioner found the respondent’s suggestion in the comment
that employees were moved around without consultation,
to be false
as, in his view, it was clear from Ms Nortje’s testimony at the
arbitration hearing that the respondent was aware
that the call
centre representatives were consulted before they were moved to
different segments but, due to the operational requirements
of the
business, they would sometimes be given short notice. In considering
the substance of the offence the Commissioner found
that:
‘
By
making these allegations Mr Legobate was indeed throwing the gauntlet
down management. He knew that this message was a list of
complaints
but elected to proceed to post it. He cannot then say that he
believed that this was an open forum where he could air
his opinions.
This is in stark contrast to his evidence that he had a meeting with
Ms Nortje and she explained the escalation procedure.
Further this
meeting addressed some of his concerns and he was requested not to
send any emails. A reasonable man in Mr Legobate’s
position
would have at the very least been aware that given this caution he
should not post anything inflammatory on the intranet.
This message is
disrespectful and cannot be seen in any other light. By posting such
a challenging message on the intranet Mr Legobate
brought the
company’s name into disrepute as this was as open forum for all
employees. As a result of his behaviour he potentially
jeopardised
Quest’s contract with the client.’
As a final point, the
Commissioner found that the respondent expressed no remorse for his
actions during the arbitration.
[11]
Aggrieved, the respondent launched an application to review and set
aside the award. As indicated, the Labour Court granted
the review
application, and substituted the award with an order that the
respondent’s dismissal was unfair and that he should
be
reinstated. There are two aspects of the judgment of the Labour Court
that warrant emphasis. The first is that the Labour Court
apparently
accepted that the respondent was guilty of misconduct, but found that
the sanction of dismissal was inappropriate; and
the second is that
the Labour Court did not find that the award was unreasonable, but
rather that (in its opinion) the Commissioner
ought to have found
that the sanction of dismissal was inappropriate. This finding, in my
view, signals a cardinal error in the
approach of the Labour Court to
the review of the Commissioner’s award which, to my mind, is
ostensibly more akin to an appeal
than a review.
[12]
The test that the Labour Court is required to apply in a review of an
arbitrator’s award is this: “Is the decision
reached by
the commissioner one that a reasonable decision-maker could not
reach?”
[7]
Our courts have
repeatedly stated that in order to maintain the distinction between
review and appeal, an award of an arbitrator
will only be set aside
if both the reasons and the result are unreasonable. In determining
whether the result of an arbitrator’s
award is unreasonable,
the Labour Court must broadly evaluate the merits of the dispute and
consider whether, if the arbitrator’s
reasoning is found to be
unreasonable, the result is, nevertheless, capable of justification
for reasons other than those given
by the arbitrator. The result
will, however, be unreasonable if it is entirely disconnected with
the evidence, unsupported by any
evidence and involves speculation by
the arbitrator.
[8]
[13]
An award will no doubt be considered to be reasonable when there is a
material connection between the evidence and the result
or, put
differently, when the result is reasonably supported by some
evidence. Unreasonableness is, thus, the threshold for interference
with an arbitrator’s award on review. However, a survey of the
judgment of the Labour Court reveals that it reviewed and
set aside
the Commissioner’s award without finding that the result of the
award was unreasonable. Nowhere in its reasons
did the Labour Court
find expressly or by implication that the decision is one that could
not reasonably be reached.
[14]
In arriving at the conclusion that dismissal was not an appropriate
sanction in respect of the respondent’s conduct,
the Labour
Court essentially accepted that the respondent was guilty of
misconduct by acting in a seriously disrespectful manner
towards
Multichoice when he posted his comment on 2 June 2011 on its
intranet. The focus of its enquiry was, therefore, on the
question of
the appropriateness of the sanction imposed by the appellant. The
Labour Court found in this regard that if the Commissioner
had
considered and applied his mind to the totality of the facts and
circumstances of the case, he ought to have found that dismissal
was
not an appropriate sanction. The facts and circumstances which the
Labour Court found the Commissioner to have failed to apply
his mind
to are primarily these:
‘
After
a lengthy questioning,…the applicant conceded that this
statement could be read as a grievance. He, however, testified
in
response to further questioning by the commissioner that at the time
of writing the statement, he did not think about it in
that
particular manner.
At the hearing of this
matter, the legal representative of the [appellant] conceded that the
problem was created by the client,
in inviting employees to post
their views regarding mutual respect on the intranet. It was the
client that set in motion the process
that led to the applicant
posting his views on the intranet. If anything it would appear that
the invitation was ill-conceived
by the client in that the risk
associated with such an invitation was not considered.
There is nothing in the
invitation by client that set out the parameters of the comments
which were expected from the employees.
The invitation did not
prescribe the format and the contents of the comment about the
employees’ views. It is apparent from
the reading of the
various submissions by other employees that some presented a
theoretical analysis of the concept “respect”.
The
approach adopted by the applicant unlike those of the others is
descriptive and based on his perception and the situational
experience he seems to have had with management. He did that in the
context where he was invited by the client to submit his views
on the
intranet. The invitation does not indicate that the expectation was
that positive comments would be made about management
neither does it
indicate that employees should not formulate their views in a form of
a grievance or in a negative manner. There
is also no warning to the
employees that any negative comments about management could result in
discipline and loss of jobs.’
[15]
However, having identified the misdirection committed by the
Commissioner, namely his failure to consider and apply his mind
to
the totality of the facts and circumstances of the case, the Labour
Court failed to progress to the second stage of the enquiry
by asking
whether, despite the failure to consider and apply his mind to the
totality of the facts and circumstances of the case,
the result of
the award was one which a reasonable Commissioner could reach. In so
doing, the Labour Court adopted a piecemeal
approach to the review
test which is fundamentally at odds with
Sidumo
as endorsed in
both
Herholdt
and
Gold Fields
.
[16]
In
Gold
Fields,
this
Court rejected the piecemeal or fragmented approach to reviews, where
each factor that the commissioner failed to consider
is analysed
individually and independently, for principally two reasons. The
first is that it “assumes the form of an appeal”
and not
a review, and the second is that it is mandatory for the reviewing
court to consider the totality of the evidence and then
decide
whether the decision made by the arbitrator is one that a reasonable
decision-maker could make. To evaluate every factor
individually and
independently, it observed, is to defeat the requirements in s 138 of
the LRA in terms of which the arbitrator
is required to deal with the
substantial merits of the dispute between the parties with the
minimum of legal formalities, albeit
expeditiously and fairly.
[9]
On this approach, therefore, the failure of a commissioner “to
mention a material fact in his or her award”, or “to
deal
in his/her award in some way with an issue which has some material
bearing on the issue in dispute”, or “commits
an error in
respect of the evaluation or consideration of facts presented at the
arbitration”
[10]
would
not, in itself, render the award reviewable.
[11]
[17]
It follows that the Commissioner’s failure to have regard
inter
alia
to the concession made by the appellant’s counsel that it
created “the problem” by inviting employees to post
their
views regarding mutual respect on the intranet, and that the
invitation did not set out the parameters of the comments which
were
expected from employees, are not sufficient grounds for interference
by a reviewing court, and cannot by themselves render
the decision
reached one that a reasonable decision-maker could not have reached.
By elevating the Commissioner’s purported
failure to consider
and apply his mind to certain facts and circumstances to a reviewable
irregularity without first assessing
whether such failure rendered
the result of the award unreasonable, the Labour Court failed in the
final analysis to ask whether
the Commissioner considered the
principle issue before him; evaluated the facts presented at the
hearing, and came to a conclusion
that is reasonable?
[12]
[18]
Similarly, instead of asking if the award is one that a reasonable
decision-maker in the position of the Commissioner could
not reach,
the Labour Court asked is the sanction imposed by the employer the
appropriate sanction. In doing so, it effectively
enquired into the
correctness of the Commissioner’s decision on the fairness of
the sanction, thus elevating the enquiry
from a review to an appeal.
Even if the Labour Court was of the view that the sanction was
inappropriate, it failed to appreciate
the very circumscribed basis
upon which it was entitled to interfere with the Commissioner’s
award.
[13]
This, in the
context of a review of an award of a Commissioner under the LRA is a
significant error, which constitutes a valid
ground for setting aside
the decision on appeal.
[19]
In
Sidumo
,
the Constitutional Court held that a Commissioner is not empowered to
establish afresh what the appropriate sanction is, but rather
to
decide whether the employer’s decision to dismiss is fair. In
making this determination, the commissioner should not defer
to the
decision of the employer but should weigh up all the relevant
factors, including the importance of the rule that has been
breached,
the reason the employer imposed the sanction of dismissal, the harm
caused by the employee’s conduct, whether additional
training
and instruction may result in the employee not repeating the
misconduct, the effect of the dismissal on the employee,
and the
employee’s service record. These factors are, however, not
considered by the Constitutional Court to be an exhaustive
list.
[14]
Hence, other relevant factors that may warrant consideration in
assessing the fairness of a sanction include the seriousness of
the
misconduct, the effect of such conduct on the continuation of the
employment relationship, the nature of the job and the circumstances
of the infringement
[15]
.
[20]
In line with his limited mandate to decide whether the sanction
imposed by the appellant was fair (as opposed to what sanction
he
would impose), the Commissioner, in his award, formulated the issue
for determination concerning sanction as “whether
the sanction
was fair?” Then in considering the fairness of the sanction
imposed by the appellant, and determining that it
was indeed a fair
and appropriate sanction in the circumstances, the Commissioner had
due regard to a series of relevant factors
including that:
(a)
the respondent’s comment was both
disrespectful to Multichoice and inflammatory.
(b)
Ms Nortje testified at the arbitration that
the comment brought the appellant into disrepute and potentially
jeopardised its contract
with Multichoice.
(c)
Ms Nortje testified at the arbitration that
the comment was objectively inaccurate in claiming that management
moved staff around
without consultation. As much was conceded by the
respondent in his testimony at the arbitration when he said that
there was no
substance to the complaint, raised in his comment, that
staff were moved around by management without consultation, as they
were
in fact consulted by management before they were moved to a
different sector.
(d)
the respondent testified at the arbitration
that he was aware that his comment would be seen by his colleagues
and managers.
(e)
the respondent acknowledged during the
arbitration that his comment amounted to a grievance, and that he was
aware of the escalation
process as Ms Nortje had had made him aware
of it on 17 May 2011, yet he proceeded to post it on Multichoice’s
intranet.
(f)
When asked at the arbitration why he did
not follow the grievance procedure, he said because the appellant
“would do nothing”.
The Commissioner found this
explanation to be unsatisfactory.
(g)
The respondent had escalated a grievance
directly to Multichoice on 14 May 2011 by e-mailing the Call Centre
manager. On 17 May
2011, Ms Nortje had cautioned him against doing
that in the future and explained the escalation process to him. She,
moreover,
specifically instructed him not to send e-mails of the
nature in question to Multichoice, and
(h)
The respondent showed no remorse prior to
or during the disciplinary hearing or at the arbitration hearing.
[21]
Although not expressly relied upon by the Commissioner in his award,
there are several other factors, that are revealed on
the evidence,
which justify the conclusion that the sanction of dismissal
imposed by the appellant was fair and reasonable
in the
circumstances. The first is that the respondent undertook in his
contract of employment to do everything in his power to
promote and
develop the business of both the appellant and its client; but
instead brought the appellant into disrepute by being
seriously
disrespectful to, and disdainful of Multichoice. As such, his conduct
almost jeopardized the appellant’s contract
with Multichoice.
This was the second occasion on which the respondent escalated a
grievance directly to Multichoice, which contained
a disrespectful
and challenging tone. Multichoice was, therefore, justified in
instructing Ms Nortje to take him off its account.
It is of
particular relevance, in this regard, that the appellant is a TES,
and the respondent was a temporary employee placed
on assignment with
its client, who no longer wanted him on the assignment due to his
misconduct.
[22]
In addition, the appellant regarded seriously disrespectful conduct,
of the nature committed by the respondent, as an offence
that
warranted dismissal on the first occasion. Its code of conduct
provides as much. In failing or refusing to demonstrate any
acceptance of wrongdoing or remorse, the respondent rendered the
continued employment relationship with the appellant intolerable,
and
undermined the applicability of corrective or progressive discipline.
[23]
Accordingly, I am of the view that the Labour Court erred in
failing to factor into its assessment of sanction the numerous
material findings made by the Commissioner, including, most
importantly that the respondent showed no remorse thus rendering the
employment relationship intolerable, and the need for corrective
measures pointless. The Labour Court also erred in its factual
findings upon which it came to the conclusion that the sanction of
dismissal was inappropriate. The respondent ultimately conceded
that
he ought to have pursued a grievance; and he had been cautioned
against sending inflammatory e-mails to Multichoice. This,
in effect,
trumps all of the Labour Court’s factual findings.
[24]
Furthermore, even if the Commissioner’s award is open to some
criticism, it clearly passes the test for reasonableness
set out in
Herholdt
in that, it cannot be said to be entirely
disconnected with, or unsupported by the evidence. The evidence led
at the arbitration
clearly bears out the fairness and reasonableness
of the sanction of dismissal imposed by the appellant.
[25]
In light of these considerations, while it can be accepted that the
decision of the appellant to dismiss the respondent may
well have
been harsh, it does not in my view, fall outside of a range of
reasonable responses to the respondent’s misconduct.
Having due
regard to the reasoning of the Commissioner on the evidence before
him at the arbitration, I am unable to conclude that
his decision was
one that a reasonable decision-maker could not reach. The
determination of whether a sanction is fair entails
making a value
judgment
[16]
over which
reasonable decision-makers will often differ. This matter, in the
words of
Sidumo
“
is
one of those cases where decision-makers acting reasonably may reach
different conclusions”
[17]
−
signifying
just how far the elastic of reasonableness must be stretched in a
“penalty review” such as this
−
before
it snaps and gives rise to a review.
[26]
For these reasons, the Labour Court erred in reviewing and setting
aside the award of the Commissioner. In the result, the
appeal must
be upheld. Taking into account the requirements of justice and
equity, I consider this to be a matter in which there
should be no
costs order.
[24]
In the result, I make the following order:
(1)
The appeal is upheld with no order as to costs.
(2)
The order of the Labour Court in the review application is set aside
and replaced with the
following order:
“
The
application is dismissed with costs”
______________________
F
Kathree-Setiloane
APPEARANCES:
FOR THE APPELLANT:
A Myburgh SC
Instructed by Kirchmanns
Inc
FOR
THE RESPONDENT:
In person
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) at para 110.
[2]
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[2012]
11 BLLR 1074
(SCA).
[3]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine)
v
CCMA [2014] 1 BLLR 20 (LAC).
[4]
[4]
CSR
is the acronym for
call
centre representative.
[5]
66 of 1995.
[6]
Although the Commissioner found the respondent’s dismissal to
be procedurally fair, this is not an issue in the appeal.
[7]
Sidumo
at
para 110.
[8]
Herholdt
at
paras 12 and 13.
[9]
Gold
Fields
at paras 18-21.
[10]
Gold
Fields
at
para 20.
[11]
Anton Myburgh SC “The test for review of CCMA arbitration
awards: an update” (2013) 23 (4)
Contemporary
Law
31.
[12]
Gold
Fields
at para 16.
[13]
NUM
and Another v Samancor Ltd (Tubatse Ferrochrome) and Others
[2011] 11 BLLR 1041
(SCA) para 5.
[14]
Sidumo
at paras 78-79.
[15]
Samancor
Chrome Ltd (Tubatse Ferrochrome) v MEIBC
(2011)
32 ILJ 1057 (LAC).
[16]
Samancor
(2011) 32 ILJ 1057 (LAC).
[17]
Sidumo
at para 119.