About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2015
>>
[2015] ZALAC 122
|
|
Isikhonyane Cleaning Services v Commission for Conciliation, Mediation and Arbitration and Others (JA36/2014) [2015] ZALAC 122 (5 October 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JA36/2014
In the
matter between:
ISIKHONYANE
CLEANING SERVICESS
(PTY)
LTD
Appellant
and
COMMISION
FOR CONCILIATION, MEDIATION AND
ARBITRATION
First Respondent
NORMAN
MBELENGWA
Second
Respondent
SATAWU
obo RAMALEPE MATLATSO
Third Respondent
Heard:
27 May 2015
Delivered:
05 October 2015
Summary; Review of arbitration award – employee dismissed
for absconding during strike notwithstanding employer’s
informing
employee that strike not affecting management staff of
which employee was part – arbitrator upholding dismissal –
employer
failing to adduce evidence that employment relationship
broken down in circumstances where another employee who committed
same
misconduct reinstated albeit in a lower position –
principle of consistence discipline restated - arbitrator committing
reviewable
irregularity – Labour Court’s judgment upheld
– appeal dismissed with costs.
Coram:
Davis JA, Ndlovu JA, And Mngqibisa-Thusi AJA
JUDGMENT
MNGQIBISA-THUSI AJA
[1]
This is an appeal against the judgment and
order of the Labour Court (Molahlehi J) handed down on 30 July 2013,
reviewing and setting
aside the award of Mr Norman Mbelengwa (“the
arbitrator”) of 12 December 2011, acting under the auspices of
the Commission
for Conciliation, Mediation and Arbitration (“the
CCMA”). The court
a quo
granted leave to appeal.
[2]
The following facts are common cause. The
appellant conducts business in the cleaning services industry (“the
industry”)
and employed Ramalepe Matlatso (“the
employee”) as a supervisor at its Carlton Centre, Johannesburg
site. During the
period of 08 August to 31 August 2011, there was a
protected strike within the industry in which the appellant’s
employees
participated. On the day of the strike, appellant’s
management called a general meeting to discuss about employees’
participation in the strike. At the meeting, the employees were
informed that the third respondent, (a union of which the employee
was a member) had issued a strike notice in terms of which, its
members were to embark on a strike from that day and that management
were not concerned by the strike. The employee left her workplace
around 12h00 on the day of the strike and did not report to work
for
the duration of the strike (i.e from 08 August to 31 August 2011).
The employee did not inform the appellant of her whereabouts
and only
returned to work on 01 September 2011 after the strike had ended.
[3]
On 12 September 2011, the employee was
served with a notice of a disciplinary inquiry relating to her
absence from work and was
charged with the following:
‘
Absent
from work from the 08/08/11 (12h00) until the 31/08/11 without a
valid reason
.
’
[4]
At the disciplinary hearing chaired by Ms
Meida Mohlala (“the chairperson”), the employee was found
guilty as charged
and dismissed. In terms of item 14 (Category C) of
the appellant’s disciplinary code, “deliberate continual
absenteeism
of dereliction (absence from work for more than 5
consecutive days without notifying the Company)”, is a
misconduct warranting
a dismissal. The employee lodged an appeal
against the decision of the chairperson of the disciplinary hearing,
to dismiss her.
However, the employee did not attend the appeal
hearing, and her dismissal was confirmed.
[5]
The third respondent, acting on behalf of
the employee, referred an unfair dismissal dispute to the CCMA. When
conciliation failed,
the dispute was referred for arbitration on the
ground that the employee’s dismissal was substantively unfair.
Arbitration
[6]
At the arbitration hearing, the appellant
(who bore the
onus
of proving that the dismissal was fair) presented evidence to the
effect that at the general meeting held on the first day of the
strike, it was made clear to the administrative staff,
supervisors and managers that they were not affected by the strike
as
they belonged to a different bargaining unit. Further, on the day of
the commencement of the strike, one of the appellant’s
managers
enquired about the whereabouts of the employee and no one knew where
she was. The employee denied that she was absent
from work without a
valid reason/permission as she had participated in the national
strike. The employee further testified that,
after leaving the
workplace at around 12h00, she had telephoned her team leader (a
certain Anna) and informed her that she was
joining the strike. The
employee further testified that at the meeting held on 08 August
2011, people in attendance were informed
by management that everyone
was free to join the strike.
[7]
The arbitrator rejected the employee’s
evidence that she was absent from work during the strike because of
participating in
the strike. The arbitrator further rejected the
employee’s evidence that at the meeting held on the day of the
strike, employees
were told they were free to join the strike. The
arbitrator concluded that the employee did not present any valid or
justifiable
reason for her absence and found her guilty of the
misconduct she was charged with. The arbitrator concluded that
the employee’s
dismissal was substantively fair because the
appellant had showed a valid reason for her dismissal.
[8]
The third respondent, acting on behalf of
the employee, launched review proceedings in the court
a
quo
in terms of section 145 of the
Labour Relations Act
[1]
(“LRA”) for the review and setting aside of the
arbitrator’s award and sought the reinstatement of the
employee.
The third respondent contended that the arbitrator had
committed a gross irregularity in upholding the employee’s
dismissal
in the absence of any evidence adduced by the appellant to
the effect that the employment relationship had irretrievably broken
down.
[9]
The court
a
quo
found that the arbitrator committed
a gross irregularity in failing to interrogate whether the employment
relationship had irretrievably
broken down. Despite the guilt of the
employee for the misconduct for which she was charged with, the court
a quo
had
difficulty with the sanction of dismissal under the circumstances.
The court
a quo
concluded that the arbitrator had not applied his mind when
considering the sanction in that he had failed to appreciate that
neither at the disciplinary hearing nor at the arbitration hearing
did the appellant present any evidence showing that the employment
relationship had irretrievably broken down. In this regard, the court
a quo
took
into account the fact that in terms of the written submissions handed
in at the arbitration hearing,
[2]
the appellant had submitted that it was prepared to treat the
employee in the same manner as it did with another supervisor, Thelma
Nong (“Nong”), who had been found guilty of the same
misconduct and was demoted to the position of a cleaner. Furthermore,
the appellant had submitted that it was willing to reinstate the
employee as a cleaner, without her losing her years of service.
The
court
a quo
concluded that in the absence of any evidence showing that as a
result of the misconduct, the employment relationship had broken
down, the arbitrator had made a decision which no reasonable
decision-maker could reach with the available material:
‘
[23]
…The sanction of dismissal was inappropriate because the third
respondent did not regard the offence as being serious
enough to
warrant a dismissal and also that the trust relationship between the
parties had not broken down. The reasonable decision
in the
circumstance of this case would have been to order reinstatement with
a final written warning.’
[10]
The test to be applied in review
applications has been set out by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
thus :
‘
[110]
To summarise,
Carephone
held that s 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 s 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 to administrative action which is lawful,
reasonable and procedurally fair.
[4]
’
[11]
In
Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others,
[5]
(
Gold Fields
)
the court stated that:
‘
[14]
….This implies that an application for review sought on the
grounds of misconduct,
[6]
gross irregularity in the conduct of the arbitration proceedings,
[7]
and/or excess of powers
[8]
will not lead automatically to a setting aside of the award if any of
the above grounds are found to be present. In other words,
in a case
such as the present, where a gross irregularity in the proceedings is
alleged, the inquiry is not confined to whether
the arbitrator
misconceived the nature of the proceedings, but extends to whether
the result was unreasonable, or put another way,
whether the decision
that the arbitrator arrived at is one that falls within a band of
decisions to which a reasonable decision-maker
could come on the
available material’
[9]
.
[12]
The appellant’s grounds of appeal are
that the court
a quo
erred in:
13.1 failing to appreciate that in the absence of the employee
showing remorse, there was no possibility of the employee being
rehabilitated and the employment relationship restored;
13.2 concluding that there was no evidence presented that the
employment relationship had broken down;
13.3 considering whether dismissal was an appropriate sanction; and
13.4
incorrectly applying the test set out in the
Herholdt
v Nedbank Ltd and Another
[10]
read with
Gold Fields.
[13]
The main contention of the appellant in
challenging the decision to reinstate the employee is that the
employee had not shown any
remorse and had foregone the opportunity
to appear at the appeal hearing where it was the intention of the
appellant to reinstate
the employee subject to a demotion to the
position of a cleaner.
[14]
Item 7(b)(iii) and (iv) of the Code of Good
Practice: Dismissal provides as follows:
‘
Any
person who is determining whether a dismissal for misconduct is
unfair should consider –
(b) if a rule or standard was
contravened, whether or not –
…
(iii) the rule or standard has
been consistently applied by the employer; and
(iv)
dismissal
was an appropriate sanction for the contravention of the rule or
standard.”
[15]
Once the arbitrator found the
employee guilty of the misconduct with which she was charged, the
next inquiry the arbitrator ought
to have undertaken was whether
dismissal was an appropriate sanction under the circumstances.
[16]
In upholding dismissal as a sanction, the
arbitrator failed to consider whether the employment relationship had
irretrievably broken
down, warranting a sanction of dismissal.
[17]
Generally, it is not appropriate to dismiss
an employee for a first offence.
[11]
In considering whether dismissal is an appropriate sanction, an
employer is expected to consider the seriousness of the misconduct,
the employee’s length of service, any previous disciplinary
record and the employee’s personal circumstances, the nature
of
the job and the circumstances leading to the misconduct. The employee
has been in the employ of the appellant from November
2000 until her
dismissal on 21 September 2011. There is no record of the employee
committing any offence.
[18]
At the arbitration hearing, the appellant,
submitted that it was prepared to treat the employee in the same
manner as the other
supervisor, Nong, who was demoted to the level of
a cleaner for the same misconduct. This is a clear indication, as
correctly found
by the court
a quo
that in the absence of any other evidence adduced as to the breakdown
of the employment relationship the employee’s reinstatement
would not have made the employment relationship intolerable. There is
nothing distinguishing the employee’s misconduct from
that
committed by Nong so as to warrant differential treatment.
[19]
Furthermore, during the cross-examination
of the appellant’s witness, Mr Michael Mziwakhe Mngomezulu, the
appellant’s
managing director, the issue of Nong was raised and
his response was that the matter was being handled by the Human
Resources Department.
This fact should have alerted the arbitrator
that the misconduct for which the employee has been found guilty is
not considered
serious enough to warrant a dismissal. In view of an
indication by the appellant that it was considering it would
reinstate the
employee if she were prepared to accept the offer of a
demotion, there appears to be no basis why the employee was treated
differently
from Nong. Item 3(6) of the Code of Good Practice:
Dismissals, provides that for a fair dismissal the rule or standard
must
be applied consistently by the employer.
[20]
Nothing turns on the appellant’s
submission that the employee by not attending the appeal hearing had
forfeited the opportunity
to have the sanction of dismissal changed
to that of a demotion. The appellant did not adduce any evidence that
it was ever hinted
to the employee that the appellant was considering
imposing a lighter sanction than a dismissal at the appeal hearing.
[21]
I am of the view that the failure by the
arbitrator to consider the appropriateness of the dismissal under
these circumstances is
a reviewable irregularity.
[22]
I am therefore of the view that taking into
account that the employee had a clean record and that another
supervisor was not dismissed
for the same misconduct in circumstances
where there is no evidence showing that as a result of the
misconduct, the employment
relationship had become intolerable, the
decision to dismiss the employee is not one that a
reasonable-decision-maker could reach
with the available evidence.
[23]
With regard to costs, there is no reason
why the appellant should not pay the costs of this appeal.
[24]
Accordingly the following order is made:
1.
The appeal is dismissed.
2.
The decision of the Labour Court is upheld.
3.
The appellant to pay the costs of the
appeal.
Mngqibisa-Thusi
AJA
Davis
and Ndlovu JJA concur in the judgment of
Mngqibisa-Thusi AJA
APPEARANCES:
FOR THE APPELLANT: Mr S Snyman of Snyman
Attornesy
FOR
RESPONDENT: Mr S
Mabaso of Mabaso Attorneys
[1]
66 of 1995.
[2]
At the end of the arbitration, there was agreement that the parties
would not make closing argument but would hand in written
submissions.
[3]
2008 (2) SA 24 (CC); [2007] 12 BLLR 1097 (CC).
[4]
At para 110. In
Edcon
Limited v Pillemer NO and Another
(2010) 1 BLLR 1
(SCA); (2009) 30 ILJ 2612 (SCA) the court held
that: “[23] It is inevitable that courts, in
determining the
reasonableness of an award, have to make a value
judgment as to whether a commissioner’s conclusion is
rationally connected
to his/her reasons taking into account of the
material before him/her.”
[5]
[2014] 1 BLLR 20 (LAC).
[6]
S 145(2)(a)(i) of the LRA.
[7]
S 145(2)(a)(ii) of the LRA.
[8]
S 145(2)(a)(iii) of the LRA.
[9]
At para 14.
[10]
[2013] 11 BLLR 1074 (SCA).
[11]
Item 4 of Schedule 8 of the Code of Good Practice: Dismissal.