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[2015] ZALAC 95
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Harrinarain v Commission for Conciliation, Mediation and Arbitration and Others (CA4/2014, C965/2011) [2015] ZALAC 95 (6 November 2015)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
LAC Case no: CA4/2014
LC
Case no: C965/2011
In the
matter between:
DOORGESH
JHUPSEE HARRINARAIN
Appellant
(Applicant
in the Court
a quo
)
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
DU
PLESSIS N.O.
Second Respondent
SABS
COMMERCIAL (PTY) LTD
Third Respondent
Heard:
22 September 2015
Delivered:
06 November 2015
Summary
:
Review of award – employee
dismissed for insubordination for defying manager authority and
failing to carry out reasonable
and lawful instruction - commissioner
finding dismissal substantive unfair but procedurally fair - employee
awarded compensation
– commissioner award falling within the
ban of reasonableness - Rule related to peremption restated - conduct
of an unsuccessful
litigant must point indubitably to the conclusion
that he does not intend to attack the judgment -
onus
on the party alleging peremption
to prove it – employee accepting payment for compensation but
seeking review of the award
– employee not accepting award.
Appeal dismissed.
Coram:
Waglay JP, Musi JA, and Savage AJA
JUDGMENT
C J
MUSI JA
[1] This is an appeal against the judgment of the Labour Court
(Rabkin-Naicker J) wherein it found that the appellant had acquiesced
in the award and that his right to review had therefore become
perempted.
[2] The appellant was employed as the Manager: Laboratories (Western
Cape) of the third respondent (SABS) and reported to Ms Yoliswa
Kula,
the Regional Manager (Western Cape). The appellant and Ms Kula had a
very rocky work relationship. She was of the view that
the appellant
did not afford her the necessary respect. The problems between the
two were the subject matter of numerous disciplinary
inquiries
against the appellant which ultimately culminated in his dismissal
for insubordination and failure to carry out work
related
instructions. Dissatisfied with the dismissal, he referred a dispute
to the Commission for Conciliation, Mediation and
Arbitration (CCMA).
After conciliation failed, he referred the dispute to arbitration.
The second respondent (the Commissioner)
found that the appellant’s
dismissal was substantially fair but procedurally unfair. The SABS
was ordered to pay the appellant
compensation in the amount of R89
100 by 4 November 2011. The SABS paid the compensation as
ordered, which was accepted by
the appellant. Aggrieved by the award
the appellant launched a review application against it.
[2] Although the court
a quo
dismissed the review application
based on peremption; I propose to set out the facts in some detail,
for reasons which will presently
become apparent.
[3] Ms Kula testified about four incidents that happened during the
latter part of 2010. On 7 September 2010, some of the staff
members
of SABS Western Cape had a meeting with Mr Seane, the General
Manager: Chemical Laboratories who was based in Pretoria.
There was a
concern that the laboratories were not profitable. It was decided,
during the meeting, that a sales plan must be compiled
by the
appellant and submitted to Ms Kula.
[4] The appellant initially testified that he did not know that he
was supposed to compile the sales plan because he is not well
versed
in marketing. He subsequently testified that he was busy researching
how to go about writing the sales plan when Ms Millicent
Julius, his
subordinate, sent him a sales plan. He was impressed with it and
added some of his own ideas to it and sent it to Ms
Kula.
[5] The minutes of the meeting clearly stated that the appellant was
to compile the sales plan. His testimony that he added his
own ideas
to Julius’s sales plan turned out to be false because he
passed-on her sales plan as his. The sales plan that he
submitted was
dated 16 September 2010 and clearly marked Marketing Mix compiled by
Millicent Julius.
[6] Ms Kula testified that on 29 October 2010 she sent the appellant
an e-mail which reads as follows:
‘
Can
you please give me a full report as to why you still have 5 Internal
IRQs that are almost three months old and are still open.
Can I please have the report
together with the paperwork for closure of these by next Tuesday the
2
nd
of November 2010 by the end of business.’
[7] The appellant sent her documents relating to 17 IRQs
(investigation requests) that were closed and nothing about the five
which she requested. She further testified that Ms Julius had to
close the five IRQs.
[8] The appellant testified that he sent Ms Kula more information
than she requested. He sent her information about 17 IRQs instead
of
only five IROs. When he was requested, in cross-examination, to
produce evidence of the five IRQs that he was requested to report
on,
he could not.
[9] Ms Kula testified that on 1 November 2010, she requested the
appellant via e-mail to give her pertinent information regarding
cancellations. The e-mail reads as follows:
‘
Can
you please prepare a spread sheet for me on all your cancellations.
It has to include the company name, the tests usually done
for this
customer, the total revenue lost and the reasons for the loss of
business. I basically need to assess the trend over a
three year
period. I need it for each lab.’
[10] According to Ms Kula, she needed this information because the
laboratories (both the water and the chemical laboratories)
were not
making money. She wanted to know why they were losing customers. The
appellant compiled a spread sheet that did not contain
all the
information that she needed. He, for example, under reason for loss
of business just stated: “In general the major
reason poor
service levels and some extent cost. Happy with swift.” Swift
was SABS’ competitor.
[11] On 13 November 2010, she sent him an e-mail pointing out that
she needed the reason why each company did not make use of their
services anymore. She pointed out that the reason why she needed the
information was because they need to separate business which
was lost
due to their own negligence from that which was lost for reasons
beyond their control.
[12] The appellant did not comply with the instruction. He testified
that Ms Kula knew all the tests that they were doing and there
was
therefore no need to give her that information. He did not call all
the companies to ascertain the reason for cancellation
because it
would be too expensive. He wrote the reasons from which she could see
the trend.
[13] He conceded during cross-examination that Loyiso Magqi, who was
his subordinate at the Water Chemistry laboratory pointed
out to him,
in an e-mail, that the information on the spread sheet was not
accurate. Loyiso’s e-mail reads as follows:
‘
The
information on the spread sheet is not accurate. About 70 companies
you’ve listed as ‘lost’ have tested with
us for the
year 2010. We lost the Cape Winelands Tender before our suspension.
They were not happy with the TAT.’
[14] The appellant however testified that Loyiso did not understand
the process properly because some companies would come and
go
regularly. He confirmed that he did not have information from all the
customers but added that his reason for the loss of business
was a
fair indication.
[15] Ms Kula testified that on 2 November 2010, she received an
e-mail from their Head Office at Pretoria to complete blank slides
that she had to use during a presentation that she had to do on 4 or
5 November 2010. The slides related to all the operations
in the
Western Cape. She printed the blank slides and gave copies to the
relevant managers to complete. All the other managers,
except the
appellant, completed the slides. She told all of them that she needed
the information urgently, before the end of 2
November 2010 because
she had to consolidate the information in order to do the
presentation at Pretoria.
[16] At 16:58 on 2 November 2010, she wrote the following e-mail to
the appellant:
‘
Can
you please submit the info as requested from you this morning. I need
to consolidate for the region and submit my presentation
by mid-day
tomorrow. I cannot do my consolidation without the info from
the labs. Can you please have this info asap.’
[17] The appellant responded at 17:04 as follows:
‘
Currently
I am not well. I think I am coming down with the flu. Sorry for any
inconvenience caused.
As per your request, you want me
to give you growth and revenue estimates (for BU 2816 and 2819) to
show a positive variance.
Before I comply with the
request, I wish to highlight the following:
I feel we should have realistic
achievable plans, if implemented, with a continuous, solid marketing
support in place to achieve
the revenue targets…to give the
process a fair chance. What I am afraid of is to mislead and give
unrealistic, unachievable,
very favourable revenues to make the
budget look good. We must understand the issue and address it
accordingly. There are no guarantees.
Please refer to the business
plan that was sent to you…
To comply with your request,
please note this is a purely thumb suck estimate. Looking at
the history and trend, I do not
have any facts to support it.
Growth areas applicable to both
BU
Regulatory and
compliance
50% revenue growth
Mark scheme
20% revenue growth
Food/water/safety management
systems 15% revenue growth
Industry
15% revenue growth.’
[18] Ms Kula testified that the appellant did not comply with her
request in that he did not give her the specific information
required
and he failed to complete the slides as requested.
[19] The appellant’s testimony was that it was not his
presentation. He wanted to know why she did not complete the slides
herself because she could have extrapolated the information from
other budgetary documents, which she had in her possession.
[20] It is common cause that Ms Kula had to ask Loyiso Magqi and
Millicent Julius to assist her with the slides that were supposed
to
be completed by the appellant. Instead of complying with the
instruction, the appellant chose to make innuendos of dishonesty
and
insinuated subtly that Ms Kula does not understand the budgetary
system.
[21] Ms Kula testified that she does not think that the appellant
respects her. According to her, they cannot work together.
She
metaphorically described them as two fighting bulls and stated that
as they were fighting SABS was suffering. She testified
that when she
called the appellant to her office, he would refuse to sit even when
requested to do so. He would deliberately leave
her office door open
so that her subordinates could hear how he shouted at her. They could
not engage in a normal fruitful conversation.
[22] The appellant testified that he respects Ms Kula and that he
would have no problem working with her.
[23] The Commissioner found that both Ms Kula
and the appellant were not in all respects satisfactory witnesses.
He
analysed the evidence in relation to all the incidents mentioned
above and found that the probabilities in each one of them
favoured
the case of SABS. He found that:
i) the appellant had not complied with the instruction to compile a
sales plan;
ii) the appellant felt it was not necessary to give a full report in
relation to the five IRQs and he thus challenged Ms Kula’s
authority;
iii) the appellant did not comply with the instruction relating to
the cancellations;
iv) the appellant did not comply with the instruction in relation to
the slides.
[24] The Commissioner concluded that the appellant’s refusal to
comply with Ms Kula’s instructions was deliberate and
amounted
to insubordination. After considering all the relevant circumstances,
the Commissioner found that dismissal was a fair
sanction. He however
found that the dismissal was not effected in terms of a fair
procedure because SABS did not comply with its
own appeal process and
ordered SABS to pay the appellant the compensation mentioned above,
which amounted to two months’
salary.
[25] The court
a quo
did not deal with the merits of this
matter because of its finding that the appellant acquiesced in the
award.
[26] Mr Garces contended that the court
a quo
was incorrect in
finding that the appellant’s right to have the Commissioner’s
award reviewed was perempted. He submitted
that the fact that the
appellant accepted the money in terms of the award may be indicative
but not determinative of peremption.
[27] Mr Tsatswane contended that the court
a quo
was correct
in its finding that the doctrine of peremption precluded the
appellant from prosecuting the review application. He
also contended
that the Commissioner cannot be faulted on the merits.
[28] In
Dabner v
South African Railways & Harbours
,
[1]
Innes CJ said the following about peremption:
‘
The
rule with regard to peremption is well settled, and has been
enunciated on several occasions by this Court. If the conduct of
an
unsuccessful litigant is such as to point indubitably and necessarily
to the conclusion that he does not intend to attack the
judgment,
then he is held to have acquiesced in it. But the conduct relied upon
must be unequivocal and must be inconsistent with
any intention to
appeal. And the
onus
of
establishing that position is upon the party alleging it. In doubtful
cases acquiescence, like waiver, must be held non-proven.’
[2]
[29] The court is therefore enjoined to look at all the facts and
circumstances and in light thereof to make a determination based
on
the facts of the particular case. Peremption is therefore fact
specific.
[30] There is no evidence as to when the money was paid to the
appellant. The money was paid into his bank account. He did not
acknowledge receipt of the payment as full and final settlement of
the issue between him and the SABS.
[31] The award is dated 19 October 2011. The appellant launched the
review application on 1 December 2011, well within the six
weeks
prescribed by the
Labour Relations Act 66 of 1995
for reviews.
Although he accepted the money, he also challenged the award
timeously. It is therefore clear what the attitude of
the appellant
was towards the arbitration award: he did not accept it.
[32] In my view, the court
a quo
should have found that the
SABS, who bore the
onus
of proving that the appellant accepted
the payment in compliance with the terms of the award and, as such,
waived his right to subsequently
challenge it, failed to discharge
its
onus
. At the very least, it is clear that this is a
doubtful case in which the court
a quo
should have found that
the acquiescence was not proven.
[33] On the merits, Mr Garces all but conceded that the arbitration
award is unassailable because the award is one which a reasonable
decision-maker could make.
[34] It was said that insubordination occurs when
an employee refuses to accept the authority of a person in a position
of authority
over him or her. It is misconduct because it assumes a
calculated breach, by the employee, of the duty to obey the
employer’s
lawful authority.
[3]
When an employee disregards the authority of or a reasonable and
lawful instruction by an employer that amounts to insubordination.
[4]
[35] The Commissioner correctly, in my view, found that the evidence
presented by the SABS is of a better quality and more probable
than
the evidence presented by the appellant.
[36] The appellant was evasive and denied objective facts that were
contained in e-mails which he received and read. He conjured
up all
sorts of reasons and excuses for conduct, which was clearly damning.
[37] The evidence in this matter exhibits deliberate recurring and
sustained actions on the part of the appellant to undermine
the
authority of Ms Kula and not to execute reasonable instructions given
to him by her. The manner in which he undermined her
authority was so
serious that they could no longer have a proper conversation about
work related matters. Ms Kula’s testimony
in relation to the
irretrievable breakdown of the employment relationship was correctly
accepted.
[38] In deciding whether dismissal was a proper sanction, the
Commissioner
inter alia
said th following:
‘
As to
the appropriate sanction, the principle that the penalty must fit the
offence requires an employer to consider alternative
sanctions before
taking the decision to dismiss. When doing so, regard should be
had to the circumstances surrounding the
commission of the offence,
the employee’s blameworthiness, the manner in which like
infractions were handled in the past,
the employee’s past
disciplinary record and length of service and the consequences of the
particular infraction for the future
good of the enterprise.
The determination of the fairness of the sanction of dismissal
entails comparing the reasons given
by the employer to justify the
dismissal with the reasons advanced by the employee for challenging
it.’
[39] He then had regard to the factors mentioned in the preceding
paragraph and pointed out that the appellant was the second most
senior employee at the Western Cape office and that the ongoing
strife between him and Ms Kula (the most senior employee in the
Western Cape) could not be tolerated. He considered that to dismiss a
senior employee had serious implications. He however pointed
out that
the appellant was incapable of admitting that he did wrong.
[40] The appellant was given a written warning on 14 May 2010, valid
for nine months for non-compliance with procedure. On 27 July
2010,
he was issued with a written warning for failing to follow
instructions and procedures. This warning was also valid for nine
months. On 7 October 2010, he was given a final written warning valid
for 12 months for not carrying out reasonable work instructions.
[41] Having regard to all the facts and circumstances of this matter,
I am of the view that the decision of the Commissioner is
one that a
reasonable decision-maker could reach. The appeal must therefore
fail.
[42] I accordingly make the following order:
The appeal is dismissed.
No order as to costs is made.
C. J. Musi JA
Waglay JP and Savage AJA agreed with C J Musi JA
APPEARANCES:
FOR THE APPELLANT: Mr Garces
Instructed by Parker and Associates
CAPE TOWN
FOR THE RESPONDENT: Mr Tstsawane
Instructed by Gowman Gilfillan Inc.
CAPE TOWN
[1]
1920 AD 583.
[2]
At 594.
[3]
National Union of Public Service and Allied
Workers obo Mani and Others v National Lotteries Board
2014 (3) SA 544
(CC) at para 213.
[4]
At para [57].