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[2016] ZALAC 20
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Dorrainn Bailiff Investments (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR86/2011, JA8/2015) [2016] ZALAC 20 (26 May 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Court
Case No: JR86/2011
Appeal
Case no: JA8/2015
In
the matter between:
DORRAINN
BAILIFF INVESTMENTS (PTY)
LTD
Appellant
and
T
HE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
LANCE CILLIER N.O.
Second Respondent
EMMANUEL
MUFUNWAINO
Third Respondent
Heard:
22 February 2016
Delivered:
26 May 2016
Summary:
Review of arbitration award – employee on final written
warnings dismissed for gross misconduct
- commissioner finding that
sanction of dismissal unappropriated and compensated employee –
Appeal – commissioner failing
to have regard to the cumulative
effect of previous warning which employer stated would be taken into
account for future transgression
– commissioner duties are to
determine the fairness of the sanction and not to impose a sanction
afresh - commissioner imposing
a sanction afresh thereby ignoring
pertinently relevant facts that were before him. Appeal upheld –
Labour Court’s
judgment set aside – dismissal of the
employee substantively and procedurally fair.
Coram:
Waglay JP, C J Musi JA, and Murphy AJA
JUDGMENT
C
J MUSI JA
[1]
This appeal, which is with the leave of the court
a quo
, is
against the judgment of the Labour Court (Manchu AJ) wherein it
dismissed an application to review and set aside the decision
of the
second respond (“the Commissioner”).
[2]
The appellant conducts business as a retail pharmacy. It delivers
medication to the residences of some of its clients. The third
respondent was employed by the appellant as a driver from 2003 until
his dismissal on 12 August 2010. He referred an unfair dismissal
dispute to the Commission for Conciliation Mediation and Arbitration
(CCMA). Conciliation was unsuccessful and he referred the
dispute to
arbitration. The Commissioner found that his dismissal was unfair and
ordered the appellant to pay him compensation
in the amount of R34
098 which translated into six month’s salary. The appellant
launched an unsuccessful review application.
Dissatisfied with the
outcome of the review application, the appellant now appeals to this
Court.
[3]
The facts giving rise to this dispute can be summarised as follows.
The appellant, in consultation with the third respondent,
decided for
operational reasons to replace the motor vehicle driven by the third
respondent with a motorcycle. The third respondent
did not have the
requisite licence to drive a motorcycle. It was agreed that he would
obtain same at the appellant’s costs.
He failed at his first
attempt at acquiring a learner’s licence. He paid the
re-enrolment fee and passed the second time
around on 22 July 2010.
The car that he was driving was stolen on 31 March 2010 and he has
not been working ever since because
he did not have a motorcycle
licence.
[4]
On 28 July 2010, the appellant gave the third respondent funds to pay
a driving school for the driving lessons; which he did.
He was
requested to book all five lessons for the week of 28 to 31 July
2010. He was unable to do so and on 28 July 2010, he sent
a “please
call me” to Ms Bailiff of the appellant. She did not call him
back. The reason for the “please call
me” was to inform
her that he could not book the lessons as discussed by them.
[5]
On 2 August 2010, Ms Bailiff contacted the third respondent to
enquire why he had not reported for duty. He informed her that
he had
scheduled driving lessons for Monday 2 August 2010 and Tuesday 3
August 2010. Ms Bailiff testified that during July 2010
before he got
his learner’s licence, she told the third respondent that she
would not be paying him for July 2010 because
he failed and he did
nothing. She did not pay him in full for July 2010. She testified
that on 4 August 2010, she called the third
respondent to enquire why
he did not report for duty. He told her that he was at the
municipality to make an arrangement so that
his water and electricity
should not be disconnected. He told her that she ruined his life and
swore at her repeatedly using the
“F” word. When she
tried to speak to him, he shouted and spoke over her. She put the
phone on the desk and left her
office, when she came back he was
still on the line shouting and swearing.
[6]
The third respondent denied swearing or shouting at Bailiff. He
testified that he was at the municipal offices and due to the
noise
at the offices he had to speak loud so that she could hear him
properly. He stated that his tone was not aggressive he only
informed
her about the problem that he had. He admitted that he was later paid
for July 2010.
[7]
The Commissioner made the following finding:
‘
The
applicant’s telephone manner that Wednesday could indicate his
repudiation of his duty to show respect to his employer.
The
gravity of this disrespect would surely reflect on factors which
include the action of the employer prior to the outburst.
Disrespect to an employer justifies termination of the employment
relationship only when it is either too gross (i.e.: insulting
and
abusive) or so frequent as to suggest that the employee has
repudiated the employer’s lawful authority, I cannot and
will
not endeavour to justify the applicant’s outburst.
However, I am compelled to consider the fact that the employer’s
unfair and unlawful behaviour of withholding month’s salary
from the applicant caused him severe financial duress and
embarrassment
and triggered his unacceptable conduct. Although
guilty of gross misconduct, these mitigating factors ought to soften
an
instinctive reaction to dismiss an employee.
Despite
the valid final warning on record, I must find that the applicant’s
conduct viewed holistically does not justify dismissal.
I must
thus find that the sanction of dismissal was too harsh under the
circumstances.
The
applicant has prayed for compensation for the unfair dismissal.
I would have preferred to have reinstated him conditionally
as I do
believe that he was partially the architect of his own misfortune.
However, he has submitted, and I do not believe
that Bailiff would
disagree, that the employment relationship is intolerable. I
must therefore order compensation for the
applicant.
I
will order compensation equivalent to six months’ wages which I
believe is just and equitable and takes into consideration
the
applicant’s not inconsiderable length of service, the
circumstances of the dismissal, and the prospects of the applicant
securing alternative employment. There is no obligation for the
respondent to reemploy or reinstate the applicant.’
[8]
The court
a
quo
found that the Commissioner considered
the “totality of relevant factors”, and the circumstances
under which the outburst
was made. The court
a quo
pointed out
that the outburst was attributed to the third respondent’s
severe financial duress (sic) and embarrassment that
was caused by
the appellant withholding his salary. The court
a quo
further
stated that the final warning was considered. The court
a quo
concluded by saying that “even if the second respondent did
substitute the sanction with one that he deemed appropriate,
this
would not constitute a sufficient ground of review”.
[9]
Mr Bekker, on behalf of the appellant, argued that the court
a quo
erred in not setting aside the award because the final written
warning made it clear that future transgressions would not be
tolerated.
He contended that the court
a
quo
should
have found that the decision of the Commissioner was unreasonable. Mr
Lombard, for the third respondent, defended the decision
of the
Commissioner as one which a reasonable decision-maker could reach.
[10]
It is now trite that the task of a Commissioner is to objectively,
impartially and fairly determine whether a dismissal is
fair. He/she
has no power to determine afresh what he/she would do but simply to
decide whether what the employer did, given the
totality of the facts
and circumstances, was fair. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[1]
it was said that:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or
she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course
consider the
reason the employer imposed the sanction of dismissal, as he or she
must take into account the basis of the employee’s
challenge to
the dismissal…’
[2]
[11]
The Commissioner found that the third respondent was guilty of gross
misconduct. The only issue was the sanction imposed. The
appellant
argued that the Commissioner did not consider the totality of the
evidence - more specifically the previous transgressions
of the third
respondent.
[12]
The evidence presented to the Commissioner, relating to the third
respondent’s previous transgressions was as follows:
[12.1]
On 7 June 2007, he was found guilty of using the company vehicle for
private purposes without permission and transporting
passengers
without permission. He was involved in a collision after which it was
determined that he was responsible for the accident.
The sanction was
a final written warning valid for 12 months “during which
period any further instances that requiring (sic)
disciplinary action
could lead to your dismissal”.
[12.2]
On 26 January 2009, he was charged with and found guilty of leaving
his place of employment without permission, arriving
late at work 16
times in 18 days and failing to collect a script from a Dr Levin for
a patient. He requested to be given a final
chance. He was given a
final written warning on condition that there was an immediate and
substantial improvement in his performance
and attitude.
[12.3]
During 2008, the third respondent and Bailiff agreed that he should
be given a R200,00 weekly advance on his salary
which he would pay
back at the end of each month. This was done in order to alleviate
his financial situation because at the end
of each month after
deductions were made from his salary he had no money left. Bailiff
omitted to inform the person responsible
for the payroll about the
arrangement. The third respondent failed to pay back any of the money
thereby increasing his salary by
at least R800,00 per month. He was
found guilty of misconduct on 20 August 2009. The sanction for this
transgression was as follows:
‘
Final
written warning. This serves to inform you that this is an extension
of the final written warning. Any misdemeanours in the
future will
immediately result in a hearing which could lead to instant
dismissal. Should this occur, all previous disciplinary
actions
and warnings accumulated against you will be used at that time.
Furthermore,
you will re-imburse the pharmacy for over paid money at a rate of
R800,00 per month until the debt is paid in full.
The final amount
will be presented to you in writing by the accountant as soon as it
becomes available.’
[13]
The swearing incident which is the subject matter in the review
happened on 4 August 2010 whilst the last mentioned final written
warning was still alive.
[14]
Article 2(1) of the Code of Good Practice: Dismissal reads as
follows:
‘
A
dismissal is unfair if it is not effected for a fair reason and in
accordance with a fair procedure, even if it complies with
any notice
period in a contract of employment or in legislation governing
employment. Whether or not a dismissal is for a fair
reason is
determined by the facts of the case, and the appropriateness of
dismissal as a penalty…’
[15]
In terms of article 3(5), the employer must in addition to the
gravity of the misconduct consider factors such as the employee’s
circumstances including length of service, previous disciplinary
record and personal circumstances, the nature of the job and the
circumstances of the infringement itself. In terms of article 5,
employers should keep records for each employee specifying the
nature
of any disciplinary transgressions, the actions taken by the employer
and the reasons for the actions.
[16]
The appellant kept all the records of the previous transgressions and
it made the third respondent aware that those records
would be
considered if he were to be found guilty of misconduct in future. It
is clear that the appellant kept and preserved the
previous
transgressions for future use. It took lapsed warnings into account
when deciding on a penalty for later misconduct.
In
Shoprite Checkers v Ramdaw
,
[3]
Zondo JP, as he then was, said the following:
‘
In
our law there is no statutory provision that deals with what the
duration of a disciplinary warning is, nor is there a statutory
provision that deals with what the effect is in law of the lapsing of
a disciplinary warning. An employer and an employee
may deal
with these matters in their contract of employment. …. These
matters may also be governed by an established practice
in a
particular workplace. Depending on what the contract of employment
between the parties, or, the applicable collective agreement,
provides or what the established practice is in a particular
workplace, the fact that an employee’s previous warning has
lapsed or expired may well mean in a particular workplace that such
employee must be treated as having a clean record when he is
next
found guilty of misconduct.’
[4]
[17]
More importantly, for purposes of this case, it has been said that:
‘
It
is for the employer, if he wishes to rely on an employee’s
previous disciplinary record to prove which regime applies in
the
particular workplace.’
[5]
[18]
In this matter, the last final written warning makes plain which
regime applied in this workplace. The third respondent was
told in no
uncertain terms that his entire disciplinary record would be used
against him.
[19]
The Commissioner did not give proper weight to the previous
transgressions. He referred to the last final warning and said
nothing about the first and second final warnings. He did not have
regard to the total picture when it comes to the disciplinary
record
of the third respondent. It is clear that he limited his enquiry and
reasons to “the valid final warning on record”
in the
process disregarding the other final warnings. In light of the clear
indication to the third respondent during the last
final warning that
all previous transgressions would in future be considered, the
Commissioner committed an irregularity by not
considering those.
[20]
There is a separate but allied serious irregularity that the
Commissioner committed. The third respondent categorically denied
that he shouted or swore at Bailiff. The Commissioner however found
that “I am compelled to consider the fact that the employer’s
unfair and unlawful behaviour of withholding a month’s salary
from the appellant caused him severe financial duress (sic)
and
embarrassment and triggered his unacceptable conduct.” The
Commissioner conjured up a reason for the third respondent’s
conduct without a factual basis therefor. If the third respondent’s
financial position caused him to react in the manner
that he did, one
would have expected him to proffer such explanation and not to deny
that he committed the misconduct charged.
It is, in my view,
irregular for a Commissioner to decide a matter based on speculation
and exalt such speculation to immutable
fact in order to achieve a
desired outcome. The third respondent did not challenge the initial
decision not to pay him for July.
He had sufficient time to do so
between the end of July and 4 August 2010.
[21]
The task of the Commissioner, as stated above, was to determine
whether the sanction was fair and not to impose a sanction
afresh.
The Commissioner seems to have decided to impose a sanction afresh
and to ignore pertinently relevant facts that were before
him. He
irregularly used presumptive reasons as justification for proven yet
unexplained misconduct.
[22]
The evidence before the Commissioner clearly showed that the
appellant was very tolerant because final warnings were followed
by
final warnings. The effect of the appellant’s leniency was
unfortunately to cause the third respondent to continue undeterred
on
his path to self-destruction. The only thing that changed was his
continuous disregard for workplace rules and the level of
contempt
that he had for his employer. His defence was based on a fabrication
that was conceived in order to cast his employer
as a liar. He
deliberately lied when he testified that he signed the last final
written warning because his employer coerced him,
on pain of
dismissal, to do so. The Commissioner allowed his maudlin sympathy
for the third respondent to distract him from his
true task. The
gross irregularities in this matter had the effect of rendering the
award unreasonable. In light of the totality
of the evidence in this
matter, it is clear that a reasonable decision-maker could not have
come to the conclusion that the Commissioner
reached.
[23]
The court
a quo
unduly deferred too much to the Commissioner’s
reasons and did not properly review his decision.
[24]
In the result, I make the following order:
a)
The appeal is upheld with no order as to
costs.
b)
The order of the Labour Court is set aside
and replaced with the following:
The
award under case number GAEK1789/10 issued by Commissioner Cillier on
13 October 2010 is set aside and replaced with the following:
The
dismissal of the third respondent was substantively and procedurally
fair. There is no order as to costs.
______________
C
J Musi JA
Waglay
JP and Murphy AJA agreed with C J Musi JA.
APPEARANCES
FOR
THE APPELLANT:
Adv. Bekker
Instructed
by Nothnagel Attorneys
FOR
THE RESPONDENT:
Adv. Lombard
Instructed
by Stan Fanaroff & Associates
[1]
2008
(2) SA 24 (CC).
[2]
At
para 78.
[3]
See
Shoprite
Checkers (Pty) Ltd v Ramdaw NO and Others
2001 (4) SA 1038 (LAC).
[4]
Shoprite
Checkers supra
at para 90.
[5]
See
Shoprite
Checkers
at para 91.