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[2017] ZALAC 12
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Consol Glass v National Bargaining Council for the Chemical Industries and Others (JA5/15) [2017] ZALAC 12 (3 February 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA 5/15
In the matter between:
CONSOL
GLASS
First
Appellant
and
THE NATIONAL
BARGAINING COUNCIL FOR
THE CHEMICAL
INDUSTRIES
First Respondent
COMMISSIONER M.S.
RAFFEE N.O
Second Respondent
SUCCESS
NZIANA
Third Respondent
Heard:
30 August 2016
Delivered:
03 February 2017
Summary:
The Bargaining Council
– finding the dismissal of the third respondent by the
appellant on account of misconduct - gross insolence
and gross
dereliction of duty - to have been substantively fair.
On review to the
Labour Court - the third respondent contending,
inter alia
,
that the commissioner had failed to determine the real issue in
dispute between the parties and had curtailed his right to
cross-examine
the appellant’s witness.
The Labour Court –
refusing to condone the late filing of the appellant’s
answering affidavit in that no explanation
had been proffered for the
delay. Finding that the evidence adduced at the arbitration centred
on the third respondent’s
poor work performance as opposed to
his misconduct –further finding that even if the commissioner
had considered the matter
on the basis of the third respondent’s
poor work performance the outcome would remain one which a reasonable
commissioner
could have reached. On the question of failure by the
commissioner to afford the third respondent his right to
cross-examine the
witness- finding that this resulted in failure of
justice. The award - reviewed and set aside and the matter remitted
to Bargaining
Council for the arbitration
de novo
.
On Appeal and
Cross-appeal: the Labour Appeal Court - finding that the approach by
the Court
a quo
in not considering the prospects of success
when refusing the application for condonation of the late lodging of
the appellant’s
answering affidavit was wrong. In considering
the applications for condonation the Court has a discretion to be
exercised judicially
upon a consideration of all the facts which
included the appellant’s prospects of success.
Finding - that the
commissioner displayed a level of intolerance when the third
respondent was testifying - whilst the commissioners
are enjoined to
conduct the arbitrations in a manner they consider appropriate in
order to determine the
dispute
fairly and quickly they must
guard against exhibiting petulance to any of the parties. Judicial
temperament, which is inherent
in their duties, is an important
element to the realisation of justice for all.
Finding-
that the denial of a right to cross-examine a witness goes to the
root of a fair hearing and the resultant award stood
to be reviewed
and set aside. The normal remedy would be to refer the matter to the
Bargaining Council for the arbitration
de
novo
before
a commissioner other than the second respondent. Finding - on the
facts of the case, it served no purpose to do so because
the
appellant had failed to prove the fairness of the dismissal.
The appeal dismissed,
the cross-appeal upheld, the order of the Court
a quo
substituted with an order upholding the review application.
Coram: Waglay JP,
Tlaletsi DJP and Phatshoane AJA
JUDGMENT
PHATSHOANE AJA
[1]
This is an appeal and a cross-appeal by Consol Glass and Mr Success
Nziana, the appellant and the third respondent, respectively,
against
the whole of the judgment and order of the Labour Court (Morgan AJ)
dated 17 September 2014, refusing to condone the late
filing of the
answering affidavit by Consol Glass; reviewing and setting aside the
arbitration award issued by Commissioner M.S
Raffee of the National
Bargaining Council for the Chemical Industries (the Bargaining
Council) issued under Case No: GPCHEM498-11/12;
and remitting the
matter to the said Bargaining Council for the arbitration
de novo
before a different arbitrator. The appeal comes before us with the
leave of the Court
a quo
.
[2]
The dismissal of an employee on account of his/her culpable poor work
performance (misconduct) at times overlaps with his/her
dismissal on
the basis of his/her inability to do the work (incapacity). This
obfuscation is central in this appeal.
[3]
Consol Glass (Consol) produces glass containers and bottles for the
local and the export market and employs 154 employees. Mr
Success
Nziana (Mr Nziana) was employed by Consol on 25 June 2008. He
occupied the position of a shift supervisor but on 01 May
2011, was
appointed to the position of a shift manager and led a crew of
approximately 40 employees. His monthly salary was R30 983.92.
As at 01 July 2011, his guaranteed annual remuneration package was
R371 387.00.
[1]
[4]
On 14 May 2012, Mr Nziana was subjected to discipline and dismissed
on 21 May 2012 on account of the following two acts of misconduct:
4.1
Gross insolence in that he made comments inciting his crew members
against management during the cascade
meeting held on 07 May 2012.
4.2
Gross dereliction of duties due to his repeated poor work
performance, lack of shift control
and failure to address production
and quality related issues on time.
[5]
Mr Nziana lodged an internal appeal against his dismissal. The appeal
was dismissed on 01 June 2012. He referred his dispute
to the
Bargaining Council which culminated in the arbitration before
Commissioner Raffee. What follows is the factual milieu leading
up to
his dismissal.
[6]
Mr Nziana reported to Mr Johan George Pelzer, a production manager at
Consol. According to Mr Pelzer Mr Nziana’s key performance
areas were to,
inter alia
, maintain discipline on the shift;
look after the production; strive to keep his performance statistics
at 90% plus; and was responsible
for his shift’s human resource
and industrial relation issues. Mr Pelzer testified that during the
first six months of Mr
Nziana’s employment as a shift manager,
various training initiatives were offered to him. He says that it was
clear in those
six months that Mr Nziana was battling to perform up
to Consol’s required performance standard in comparison with
his three
co-workers he underwent training with.
[7]
Mr Pelzer further says that in February 2012, there was a meeting
between himself, Mr Selemo Magatikele, the general manager
of the
plant, and Mr Nziana, the purposes of which was to discuss Mr
Nziana’s performance and determine if the latter needed
assistance. Certain targets were also set for Mr Nziana. Mr Pelzer
intimated that Mr Nziana’s attitude was that he did not
require
any assistance from them. Mr Pelzer went on to say that Mr Nziana
worked with qualified and experienced managers in Wadeville
for
almost three months. He was also moved from D-crew to manage C-crew,
which was a better performing crew. Although there was
some slight
improvement to his performance, following this move, there were some
anecdotes regarding Mr Nziana’s lack of
leadership qualities by
his crew. Mr Pelzer did not sit with Mr Nziana to discuss the
anecdotes instead, three months later, on
07 May 2012, just less than
few days before Nziana was disciplined, a crew meeting was held to
obtain clarification on these rumours.
Mr Pelzer says that Mr Nziana
was very defensive and shifted the blame on everyone else.
[8]
Mr Pelzer testified that the relationship of trust between Consol and
Mr Nziana had disintegrated irreparably because the performance
targets were slightly adjusted upwards and said “I just think
that Success (Nziana) will not make it”. He also says
that the
utterances made by Mr Nziana at the meeting of 07 May 2012, although
he could not recount them, irreparably broke the
relationship of
trust.
[9]
According to Mr Pelzer, one of the senior managers of Consol, Mr
Morné Roberts, had a discussion with Mr Nziana regarding
the
rumours that were circulating concerning his poor work performance.
It is noteworthy that Mr Roberts said nothing about the
discussion he
had with Mr Nziana regarding his poor work performance. His testimony
was to the effect that Mr Nziana reported to
him when Mr Roberts was
doing weekend standby duties. Mr Roberts says that every time he
tried to call Mr Nziana he would not answer
his phone. This resulted
in him driving to the workplace and would find Mr Nziana sitting in
the office.
[10]
Mr Roberts mentioned an occasion where he called Mr Nziana at least
five to six times without an answer. He then drove to work.
Mr Nziana
reported to him that his phone was being charged. When he confronted
him on his failure to respond to telephone calls
he would say that
the phone was dysfunctional or that he did not hear it rings as it
was in the office whereas he was on the floor.
He says that Mr Nziana
did not give him accurate feedback on the problems experienced at the
plant. Over the weekends the employees
on the floor complained to Mr
Roberts about Mr Nziana. He went on to say that Mr Nziana was never
on the floor and did not discipline
his shift workers.
[11]
Mr Selemo Magatikele, the general manager, also testified in the case
for Consol. The whole of his evidence was not tested
through
cross-examination because the commissioner stymied that process. In
his examination-in-chief Mr Magatikele testified that
Mr Nziana
impressed him during his interviews for the position of a shift
manager. Consol commenced coaching Mr Nziana from the
moment he was
appointed. At a later stage, Mr Magatikele says, he noticed some
challenges in how Mr Nziana was running his shift.
He went on to say
that he sat with Mr Nziana and discussed with him his shift log
reporting structure and what he expected of him
to put in his report.
He further informed him that running a shift operation was “like
playing soccer…You are not
going to fix everything, but you
need to prioritize...have your fingers on the pulse all the time”.
[12]
Mr Magatikele says that Consol owns a computer program called GR8
which indicated the problem areas needed to be followed through.
At
times, when he was a duty manager, he called Mr Nziana to inform him
of the defects he observed on the GR8. Mr Magatikele says
that
whenever Mr Nziana was on shift, the other shift managers on standby
complained because Mr Nziana “does not act on issues
quickly”.
He noticed that Mr Nziana was battling and he spoke to Mr Pelzer to
assist in coaching him.
[13]
Mr Magatikele says that they kept coaching Mr Nziana until he decided
they needed to sit with him so as to understand what
his problem was.
He called a meeting with D-crew, headed by Mr Nziana at the time,
because it had absenteeism problems, late coming,
and lack of general
discipline. One of the shift employees reported at this meeting that
they did not have a leader because Mr
Nziana sat in the office; would
not come to the floor; and allowed the workers to strive with work on
their own. He intimated that
the management of Consol decided that Mr
Nziana be given a strong team, C-crew, which was packing the target
of 90% consistently.
This was aimed at assisting Mr Nziana by taking
him out of the pressure environment and giving him a fresh start.
[14]
Mr Magatikele went on to say that not long after Mr Nziana had taken
over C-crew problems started emerging. One of these was
that Mr
Nziana had allowed two of his line controllers to take leave
simultaneously, an act unheard of in their area of operation.
There
was also an incident of late coming. He intimated that at a meeting
held on 13 February 2012 Mr Nziana claimed not to have
known what his
key performance areas were. This was surprising, he says, because
these were made clear to the shift managers. He
nevertheless outlined
this to Mr Nziana. In the e-mail he directed to Mr Nziana, dated 13
February 2012, he wrote:
‘
This is to
formally record our discussion of this afternoon. I wish to indicate
at the outset that this was not for the first time
that I have had a
discussion with you to highlight the areas of performance that you
needed to focus on. It was rather disappointing
to note that you did
not believe there were any concerns with your performance and
attendant to that you indicated that you did
not require any help
from Anton and myself. As I pointed out to you the objective of
today’s meeting was to afford you an
opportunity to indicate to
us if there is any form of assistance that you require from us in
your execution of your duties.
It is rather discomforting that at
your level you were not certain of what your key performance areas
were. I expect that a person
at your level will raise any
uncertainties immediately. As a reminder we reconfirmed to you that
our target is 90% PTM and that
the following are the key indicators
that you should focus on:
1.
Defects
Management - c+ losses of less than 3% and camera losses of less than
2.5%. Moulds must not be on cid for more that the
lehr length time.
2.
Ware
handling - you need to manage ware handling on both the Hot End
and Cold End to minimize unaccounted losses, both in
terms of ware
that is lost for whatever reason and jam ups.
3.
Call
out – you should hold your Forming specialist and QA Techs
accountable. This requires that before you call out someone
you
confirm with them what they have done to try to fix the problem.
There are instances where you have called out specialist for
simple
issues which Shift specialist should have fixed.
4.
Held
ware – you must enforce quality management system discipline to
ensure that held ware is reduced.
5.
Line
balancing- you must manage balancing, false rejects as well as
invalids.
6.
Accuracy
of information- you need to ensure that the information you report is
accurate and not exaggerated.
7.
Absenteeism
– ensure that your team is on time and delinquent absenteeism
is addressed.
As I said to you, we moved you from
D-crew to C-crew as I believe the discipline on D-crew has fallen
flat and I required someone
who could get the discipline back on
track. Please note that we cannot afford to drop the discipline on
C-crew and also that we
are not going to move you again for similar
reasons.
Please note that
you are now; starting today under a three months performance review
process. Your performance will be reviewed
every two weeks until on
14 May to determine if you are still suitable for the role of the
shift manager. During this period, we
will coach, guide, train and
instruct you. Please indicate any development areas that you might
need assistance with
.”
(My emphasis)
[15]
Mr Magatikele intimated that he called a meeting of C-crew on 07 May
2012, shortly before Mr Nziana was notified of his disciplinary
hearing. It was reported in that meeting that the level of discipline
in that team was declining; there was no sense of urgency;
and the
reaction time was poor. Some crew members reported on the lack of
leadership. Mr Nziana was afforded an opportunity to
respond to the
accusations by his crew members. Mr Magatikele says that Mr Nziana
became extremely arrogant and said he was being
targeted and that
what his crew did was being exaggerated and sensationalised. Mr
Magatikele says that the arrogance was grossly
insolent and
disappointing.
[16]
On 08 May 2012, following the meeting referred to in the preceding
paragraph, Mr Magatikele directed an e-mail to Mr Nziana
recording
the following:
‘
1.
You said that C-crew is on the spot light and suggested that
everything that happens on
C-crew is blown out of proportion. What
did you mean by that and can you provide some examples?
2.
You said Tallman has got an absenteeism tendency. How many times has
he been
absent? Did you take this up with anyone? How do you know
that no action was taken?
3.
Your crew members stated that discipline has dropped, reaction time
is poor and
that communication is poor- is this a fabrication?
4.
The employees have pointed out that the morale is down, and that
there is a problem
“Upstairs” and suggested a leadership
training intervention- what is your take on this?’
[17]
Two days later, on 10 May 2012, Mr Nziana was suspended from duty and
disciplined on 14 May 2012 on charges of gross insolence
and gross
dereliction of duties, as highlighted hereinbefore.
[18]
Mr Nziana testified that in February 2012, before his removal from
D-crew to C-crew, his production statistics were 90% on
daily basis.
At some stage, he achieved 88% because there were some problems. He
was transferred to C-crew not because of the decline
in his team’s
scores but due to the rumours that he sat in the office. At the
meeting held on 13 February 2012 he suggested
to management to
conduct the weekly performance review and to show him his areas of
weakness with a view to improving same. He
would be coached and
guided thereafter. He says that Mr Pelzer reported in that meeting
that one week of performance review was
too short and suggested two
weeks which was accepted by all parties concerned. The performance
review process did not take place
as agreed.
[19]
Mr Nziana says that on 14 February 2012, when he took over C-crew,
its month to date performance was at 89.3%, below the 90%plus
target.
On 25 February 2012, when C-crew closed, its performance score was
92.3%. This performance was celebrated by means of a
braai. Mr
Magatikele also testified to this celebration but said that the
achievement was mainly due to a certain Mr Madoda, who
managed C-crew
prior to its transfer to Mr Nziana. Mr Nziana says in March 2012 his
crew came second at 89% and other crews were
below him. In April
again the crew scored 90.6%. Before he was dismissed his month to
date score was 91.5%. The performance statistics
referred to by Mr
Nziana in his evidence were never disputed by Consol.
[20]
Mr Nziana intimated that he was dismissed because Consol had a
perception that he was not performing well but the real reason
for
his dismissal was “just politics”. He sought
reinstatement to his position as a shift manager from the
commissioner.
The
arbitration award:
[21]
The commissioner summarised the evidence that was led at arbitration.
His analysis of the evidence and argument is captured
in five lines
as follows:
‘
The
applicant (Nziana) was unable to rebut the allegations made by the
respondent’s witnesses. Instead, he chose the route
of
suggesting that it was the internal politics in the respondent’s
business that led to his dismissal. There is little before
me to
indicate that the charges were trumped-up or that they were not
genuine in any way.
The balance of probabilities favour
the version of the respondent more than that of the applicant.’
The
commissioner then concluded that Mr Nziana’s dismissal was
substantively fair. It was on this basis that his dismissal
claim was
dismissed.
The
proceedings before the Labour Court:
[22]
Aggrieved with the outcome of the arbitration
Mr
Nziana filed an application with the Labour Court to review and set
aside the arbitration award. The Court
a
quo
took no cognizance of Consol’s answering affidavit to the
review and refused to condone the late filing thereof because no
explanation was tendered for the delay of 30 days which occurred
after Consol’s representative had been made aware of the
running of the
dies
for purposes of filing its opposing affidavit by Mr Nziana’s
erstwhile attorneys of record. The Judge
a
quo
dealt with the four grounds of review referred to in Mr Nziana’s
heads of argument. Namely: (1) Alleged failure by the commissioner
to
explain the arbitration process; (2) Alleged failure by the
commissioner to determine the real issue between the parties; (3)
Alleged failure by the commissioner to determine the factual dispute
and lastly; (4) The curtailment of Mr Nziana’s right
to
cross-examine Mr Magatikele by the commissioner.
[23]
With regard to the first ground of review, failure by the
commissioner to explain the arbitration process, the Court
a
quo
found that no basis for it was established in the founding papers or
supplementary affidavit and that in any event
,
Mr Nziana conducted the arbitration with little difficulty.
[24]
With regard to the ground that the commissioner had failed to
determine the real issue between the parties
the
Court
a
quo
observed that much of the evidence
centred
on Mr Nziana’s performance as opposed to his purported
misconduct. The Court remarked that Mr Nziana categorised his
dispute
in the referral form as one pertaining to conduct. It then held:
‘
It may well
be that Consol should have dealt with the matter as one of
incapacity, based upon poor performance however, that is
not for the
Court to decide. The fact of the matter is that Nziana was dismissed,
fairly or unfairly, for reasons related to his
conduct.’
[25]
The Judge
a quo
further observed that Mr Nziana, as a senior
employee, had a greater degree of responsibility. The Judge was of
the view that the
evidence with regard to his poor work performance
was substantial. It reasoned that the absence of the performance
review by Consol
did not advance Mr Nziana’s case because there
were regular follow-up meetings and feedback provided to Mr Nziana
with regard
to his performance and that Consol made a concerted
effort to assist him by providing him with a mentor and transferring
him to
a stronger team. The Court further held that Mr Nziana was
“resistant to this, believing himself to be above the need for
help and the victim of politics”. The Judge
a quo
was
satisfied that the commissioner determined the real issue between the
parties and expressed a view that “Even if the
commissioner
should have considered the matter of the basis of performance the
outcome would not have been different and the award
remains (in this
respect at least) one which a reasonable arbitrator could make”.
[26]
On the ground whether the commissioner addressed the disputes of
fact, the Court
a quo
held that it was clear from the
commissioner’s recordal of the evidence that he preferred the
version of Consol and that
he did not commit any reviewable
irregularity in that regard.
[27]
The last ground of review to the effect that the commissioner
committed an irregularity by curtailing cross-examination of
Mr
Magatikele by Mr Nziana was a cause for concern to the Judge
a
quo
. He pronounced:
‘
[51]
Mr Hutchinson, appearing on behalf of Consol, however, submitted that
the ultimate decision remained
reasonable and that any perceived
irregularity had not affected the result.
[52] In
light of the totality of evidence led, I am inclined to agree with Mr
Hutchinson to a degree
that the outcome may well have remained the
same had Magatikele been effectively cross-examined. The evidence
against Nziana was,
with respect to him, substantial. Much of the
evidence was not challenged and it was apparent to the arbitrator, as
it is to this
Court, that Nziana’s performance was not up to
the required standard and that numerous attempts had been made to
correct
this.’
[28]
The Judge
a
quo
then referred to several decisions of the Courts on the review
test.
[2]
He then concluded that
failure by the commissioner not to allow Mr Nziana to
cross-examine Mr Magatikele resulted in a failure
of justice because
Mr Nziana did not receive a fair hearing. He was of the view that it
mattered not whether the outcome would
have remained the same. He
reasoned that this failure amounted to gross irregularity as
envisaged in s 145(2) of the Labour Relations
Act, 66 of 1995, (the
LRA) and concluded that this rendered the award one which a
reasonable arbitrator could not reach. On this
basis alone, he was of
the view that, the application for review had to succeed. As already
alluded to, the Labour Court set aside
the award; remitted the matter
to the Bargaining Council for the arbitration afresh; and made no
order as to costs.
[29]
The grounds of appeal by Consol are that the Court
a quo
erred:
29.1 In
finding that the commissioner did not afford Mr Nziana a fair
hearing;
29.2 In
finding that the curtailment of cross-examination resulted in failure
of justice;
29.3 In
failing to condone the late lodging of Consol’s answering
affidavit; and
29.4 In
not dismissing the review application and ordering Mr Nziana to pay
Consol’s costs.
[30]
The grounds of the cross-appeal by Mr Nziana come down to the
following. The Court
a quo
erred:
30.1 In
finding that Mr Nziana reported to Mr Magatikele;
30.2 In
finding that Mr Nziana’s poor work performance was regularly
addressed with him by e-mails and informally;
30.3 In
finding that the disciplinary process appears not to have been
challenged by Mr Nziana;
30.4 In
determining that the commissioner addressed the real issue before
him; and
30.5 In
finding that the commissioner did not commit a reviewable
irregularity by failing to consider the factual
disputes.
Analysis of the
grounds of appeal:
[31]
It is expedient to commence this enquiry with the application for
condonation of the late filing of Consol’s answering
affidavit
to the review application which was refused by the Court
a quo
.
[32]
Consol had 10 days within which it had to deliver its answering
affidavit.
[3]
The affidavit was
filed on or about 28 June 2013, approximately 30 days outside the
statutory prescribed period.
[33]
Mr Simon Mosuwe, the Human Resource Manager of Consol, and the
deponent to its answering affidavit, explained that upon learning
from Mr Nziana’s attorneys that Consol could file its opposing
affidavit he immediately instructed Consol’s attorney
to uplift
the record. He also says that, when he received a notice of set down
showing that the matter had been enrolled on the
unopposed roll, he
instructed Consol’s attorneys to file the answering affidavit.
Mr Mosuwe does not proffer any explanation
for the delay of almost 30
days after he had learned from Mr Nziana’a erstwhile attorneys
of record that the time period
within which to file its papers had
commenced running.
[34]
A party seeking condonation must satisfy the Court that it has a
reasonable explanation for its delay in failing to comply
with the
time-limits applicable to that party. Its failure to put before the
Court such a reasonable and acceptable explanation
entitles a Court
to refuse the application for condonation. If a Court takes the view
that there is little prospect of success
then it can justifiably
refuse to grant a party the indulgence sought.
[4]
[35]
The Court
a
quo
did not consider Consol’s prospect of success. It refused to
condone the late lodging of the affidavit solely on the basis
that no
explanation had been proffered for the delay. The approach adopted by
the Court
a
quo
was
,
in
my view, wrong. In considering the applications for condonation the
Court has a discretion, to be exercised judicially upon a
consideration of all the facts which include but not limited to the
degree of lateness, the explanation thereof, the prospects
of
success, the respondent's interest in the finality of the judgment,
the convenience of the Court, and the avoidance of unnecessary
delay
in the administration of justice.
[5]
In my view, the Court
a
quo
ought to have granted the application. There could have been no
prejudice in so doing in the circumstances where it extensively
dealt
with the merits of the review.
[36]
As already alluded to, the commissioner restricted Mr Nziana right to
cross-examine Mr Magatikele. At the commencement of Mr
Magatikele’s
cross-examination
the
commissioner advised Mr Nziana as follows:
‘
Commissioner: Please
understand, if there is anything that this witness has said, that is
untrue or that is incorrect those will
be the questions that you put
to him. Do you follow?
Mr Nziana: Okay.’
Mr Nziana asked one or
two question and thereafter the commissioner beg
an
questioning Mr Nziana on issues pertaining to his case. At some
stage, during this interrogation, the record reflects the following:
‘
Mr Nziana: I
was treated unfairly.
Commissioner: In which way?
Mr Nziana: Well, I can mention many
things. But….[intervenes]
Commissioner: Well, I am going to give
you that opportunity to do so now. Thank you sir [Mr Magatikele]. You
are excused…’
Thereafter Mr Nziana’s
evidence-in-chief commenced. Further on during his testimony the
following is recorded:
‘
Commissioner:
what comment have you got to what was said by the previous witness?
The general manager?
Mr Nziana: He said a couple of things.
I had questions lined up for him. Basically to basically question him
so that you understand
what was happening. Because I got, I had a lot
of questions. As you can see.
Commissioner: I see.
Nziana: Ja.’
The
commissioner took this issue no further and did not take the trouble
to recall Mr Magatikele, at least for purposes of allowing
Mr Nziana
to cross-examine him.
[37]
Mr Hutchinson, for Consol, contended that Mr Nziana was afforded the
opportunity to cross-examine the first two key witnesses
called by
Consol whose evidence was eminently more important than that of Mr
Magatikele. Counsel sought to suggest that even if
the evidence by Mr
Magatikele was to be disregarded it would not have changed the
outcome of the arbitration. On the contrary,
in my view, Mr
Magatikele’s evidence was essential to the determination of the
question whether the dismissal was effected
for a fair reason.
[38]
In
President
of the Republic of South Africa and Others v South African Rugby and
Football Union and Others
[6]
the
Court pronounced:
‘
[61] The institution of
cross-examination not only constitutes a right, it also imposes
certain obligations….
[65] These rules relating to the duty
to cross-examine must obviously not be applied in a mechanical way,
but always with due regard
to all the facts and circumstances of each
case. But their object must not be lost sight of. Its proper
observance is owed to pauper
and prince alike…’
[39]
The perusal of the record of the arbitration proceedings reveals that
the commissioner displayed a level of intolerance when
Mr Nziana was
testifying. This is inappropriate.
Commissioners
are enjoined to conduct the arbitrations in a manner they consider
appropriate in order to determine the dispute fairly
and quickly but
must, in doing so, guard against exhibiting petulance to any of the
parties appearing before them. After all, judicial
temperament, which
is inherent in their duties, is an important element to the
realisation of justice for all. There is a considerable
body of
authority in this Court on the manner in which the commissioners are
supposed to conduct the proceeding before them.
[7]
[40]
The minority decision of the Constitutional Court in
Toyota
SA Motors (PTY) LTD v Commission for Conciliation, Mediation &
Arbitration and Others
[8]
set out the principles laid down in case law on gross irregularity as
a ground of review and pronounced as follows at 346 para
105:
‘
[105]…..As
the authorities referred to above reveal, a gross irregularity is
conduct on the part of an arbitrator or decision
maker that prevents
one of the parties from having its case fairly heard or that prevents
a fair trial of issues. Any decision
by the commissioner to prevent
Toyota from cross-examining Mr Makhotla on such a crucial aspect of
the case would be a gross irregularity
justifying the setting aside
of the commissioner's award.’
[41]
The denial of a right to cross-examine a witness goes to the root of
a fair hearing and the resultant award stands to be reviewed
and set
aside. The normal remedy under these circumstances would be to refer
the matter to the Bargaining Council for
arbitration
de
novo
before a commissioner other than the second respondent. However, on
the facts of this case, it shall serve no purpose to do so
because,
as it shall be demonstrated below
that
notwithstanding the fact that Nziana was not given a fair hearing
,
Consol did not prove the fairness of the dismissal.
[42]
Infused in the ground of appeal that the Court
a
quo
erred in dismissing the review application with costs is the primary
question whether the commissioner considered the principal
issue
before him; evaluated the facts presented at the arbitration; and
came to a reasonable conclusion. The cross-appeal also
lies against
this question.
[43]
In deciding what the real dispute between the parties is, a
commissioner is not necessarily bound by how the legal
representatives
styled the nature of the dispute in their referral
forms. The labels that parties attach to a dispute cannot change its
underlying
nature. The informal nature of the arbitration process
permits a commissioner to determine what the real dispute between the
parties
is on a consideration of all the facts. The dispute between
the parties may only emerge once all the evidence is in.
[9]
[44]
Although the dismissal was predicated on Mr Nziana’s alleged
gross insolence and gross dereliction of duty, from the
background
evidence sketched, there can be no question that the dispute between
the parties was in the main actuated by Mr Nziana’s
alleged
poor work performance and not necessarily his conduct. It is also
noteworthy that, when he commenced his address before
us, Mr
Hutchinson, for Consol, contended that the principal issue in dispute
between the parties was Mr Nziana’s poor work
performance.
[45]
Mr Hutchinson referred to some e-mails exchanged between the parties
to show that Consol had discharged the
onus
to prove the
substantive fairness of the dismissal. Most of these e-mails,
although they form part of the record, were never referred
to during
the arbitration. Apparent from these e-mails is that Consol’s
major grievance against Mr Nziana was that he was
unable to
discipline his crew. Mr Hatchinson argued that Mr Nziana was
mentored, coached, and subjected to counselling. It is important
to
remember that Mr Pelzer’s evidence was to the effect that he
never sat with Mr Nziana to inform him of his poor work performance.
He intimated having sent e-mails, every second week, to Mr Nziana
explaining to him that his performance was not up to the standard
required by Consol. Those e-mails were never handed in as evidence.
[46]
Mr Magatikele testimony was to the effect that he coached Mr Nziana.
Save that he once sat with Nziana to discuss what he should
put in
his shift report and that he, on a number of occasions, called him to
inform him of the defects he observed on the GR8 and
told him to keep
“his finger on the pulse” no evidence was presented by
Consol to show what form of coaching, guidance
or training was
provided to Mr Nziana during his tenure as a shift manager. Neither
was there any evidence led to show how Mr Pelzer,
Mr Madoda, Mr
Nziana’s co-worker, coached Mr Nziana as testified by Mr
Magatikele.
[47]
According to Mr Pelzer, although Mr Nziana’s performance
statistics may show that his shift scored 90% at times and therefore
above the target of 90% plus this was misleading because his held
ware was far higher than of any other shift. He intimated
‘
Your
heldware was far higher than any other shift. But I did not take it
off the stats, otherwise it would have put [you] in a worse
light’.
In my
view, this was unhelpful. It is remarkable that Consol would complain
of Mr Nziana’s poor work performance but portray
same in a
positive light. When Mr Nziana confronted Mr Pelser to provide proof
that Mr Nziana did not reach his targets,
his
response was “alright, I can go and pull the stats of last
year”. Those statistics, if they do exist, were not handed
in
as evidence at arbitration.
[48]
The
onus
rested
on Consol to prove the fairness of Mr Nziana’s dismissal. It
remained in its province to produce the e-mails showing
how he was
coached by Mr Pelzer and the statistics reflective of the true state
of affairs and/or to confront Mr Nziana with such
information. It did
not do so. The evidence by Consol to the effect that Mr Nziana was
subjected to various training, coached and
guided without
substantiation was in my view fanciful and artificial.
[49]
In terms of the Code of Good Practice: Dismissal- Guidelines in cases
of dismissal for poor work performance, Schedule 8 Item
of 9 of the
LRA:
Any
person determining whether a dismissal for poor work performance is
unfair should consider whether the employee failed to meet
a
performance standard and if the employee did not meet a required
performance standard whether or not: (i) the employee was aware,
or
could reasonably be expected to have been aware, of the required
performance standard; (ii) the employee was given a fair opportunity
to meet the required performance standard; and (iii) dismissal was an
appropriate sanction for not meeting the required performance
standard.
[50]
The Code of Good Practice did not feature in the analysis of evidence
by the commissioner. It has been held that where an employee
is a
member of senior management his knowledge and experience qualify him
to judge whether he meets the required standard. In that
instance an
employer may not be required to follow a formal procedure or counsel
the employee. However, this expectation depends
on the existence of
acceptable standards of performance.
[10]
Consol
undertook to subject Mr Nziana to a three months performance review
process in terms of which Mr Nziana’s performance
would be
reviewed every two weeks until on 14 May 2012. It is common cause
that the said performance review process was never implemented.
[51]
Mr Nziana may have been aware or made aware of the performance
standard required. It is to be recalled that during the first
six
months of his employment as a shift manager, the evidence by Consol
was to the effect that, he was “battling” to
perform.
This was not a case of an employee who had previously performed well
and later deviated from the required performance
standard set. In my
view, under these circumstances, there was an onerous duty on Consol
to assist Mr Nziana to attain its required
performance standard.
Following the first six months of the poor work performance by Mr
Nziana, from February 2012 until his dismissal
in May 2012 anecdotes
surfaced that he was unable to manage his shift. Consol did nothing
about the anecdotes. Mr Pelzer testified
that he “could not go
on rumours”. He intimated that the purpose of the meeting that
was held on 07 May 2012, two days
prior to Mr Nziana’s
suspension, was to ascertain the veracity of the rumours. Mr
Magatikele went to say that in that meeting
Mr
Nziana’s subordinates suggested that he be subjected to
leadership training. Management did not take heed of the suggestions
instead it took the route of disciplining and discharging him from
his service. All these demonstrate that Mr Nziana was not given
a
fair opportunity to perform.
[52]
Quite apart from not affording Mr Nziana the opportunity to perform,
the extract from Consol’s Disciplinary Code, which
forms part
of record of this appeal, headed: “Disciplinary Matrix Consol
Glass Division: Nigel Factory, classifies “Work
Performance”
into four types: Incompetence, Negligence, Gross negligence and Poor
quality. For each nomenclature a system
of graduated discipline, as
opposed to dismissal, is proposed as a guideline for handling the
“Work Performance” that
may be at issue. All things
considered, in my view, the dismissal of Mr Nziana for poor work
performance under the guise of gross
dereliction of duty was unfair.
[53]
Mr Hutchinson argued that the complaint that Mr Nziana was insolent
was a side issue interlinked to his poor work performance.
Contemptuousness of authority (insolence, impudence, cheekiness,
disrespect or rudeness) may constitute a ground of dismissal
(provided, of course, that it is willful and serious)
.
[11]
The basis of the charge of gross insolence was that Mr Nziana had
allegedly made comments inciting his crew members against management
during the cascade meeting held on 07 May 2012. To prove the fairness
of his dismissal, on this charge, at least the evidence pertaining
to
the comments that Mr Nziana made was necessary. Except to say that he
was arrogant Mr Pelzer could not say what comments Mr
Nziana made. Mr
Magatikele’s evidence was to the effect that Mr Nziana had said
in the meeting that he was being targeted
and that what his crew did
was being exaggerated and sensationalised. In the light of
allegations made by his crew that he lacked
leadership qualities, it
is probable that Mr Nziana may have been arrogant in trying to defend
himself. However, there is nothing
on the evidence showing that he
was contemptuous of any authority or that he incited his colleagues
against management. If at all
anything, the insolence was not of a
serious nature.
[54]
Both the Commissioner and the Judge
a quo
treated the dispute
as if it was premised, in the main, on Mr Nziana’s misconduct.
This was far from it. Clearly, the commissioner
did not apply his
mind to the totality of the facts. He misconceived the nature of the
enquiry he was called upon to determine
which resulted in a material
disconnection between the evidence and the conclusion reached by him.
On this conspectus, the result
of the arbitration was unreasonable.
[55]
The Court
a
quo
was wrong in concluding that because Mr Nziana had categorised the
dispute as misconduct it be handled on that basis. It also erred
in
holding that:
“
It
may well be that Consol should have dealt with the matter as one of
incapacity, based upon poor work performance however, that
is not for
the Court to decide”.
This
question was central to the review. It follows that the Court
a
quo
ought to have reviewed and set aside the award on the basis that it
was unreasonable. This finding is dispositive of all the other
issues
raised in the appeal and the cross-appeal. It is therefore
unnecessary to traverse same.
[56]
As already alluded, Mr Nziana sought reinstatement in the event that
the award is reviewed and set aside. I can conceive of
no reason not
to order reinstatement. With regard to the back-pay none of the
parties is largely to blame for the four-year delay,
reckoned from
date of dismissal, in disposing of this matter. In the circumstances,
equity and fairness would dictate that the
retrospective pay be
limited to a period of twelve months back-pay.
[57]
On the question of costs. The Court
a quo
made no order as
costs because Consol had not acted unreasonably in opposing the
review. There is no reason for this Court to reverse
that order.
Insofar as this appeal is concerned Mr Nziana was unrepresented and
therefore the question of costs does not arise.
In the result, I make
the following order.
Order
1.
The
appeal is dismissed;
2.
The
cross-appeal is upheld;
3.
The
order of the Court
a
quo
is set aside and substituted with the following:
‘
(a)
The condonation for the late filing of the answering affidavit is
granted;
(b)
The application to review and set aside the arbitration award issued
by the National
Bargaining Council for the Chemical industries, the
first respondent, under Case No: GPCHEM 498-11/12 is granted;
(c)
The arbitration award issued by the first respondent under Case No:
GPCHEM 498-11/12
is reviewed and set aside;
(d)
Mr Success Nziana’s (the third respondent’s) unfair
dismissal claim succeeds;
(e)
Consol Glass, the appellant, is ordered to reinstate Mr Success
Nziana
to
his position as a shift manager with effect from 21 May 2012, being
his date of dismissal;
(f)
Consol Glass is ordered to pay Mr Success Nziana twelve months’
compensation
in the amount of R 351 000.00 (three hundred and
fifty-one thousand rand) within 30 days from date of this order.
(g)
No order is made as to costs.
____________________________
MV Phatshoane
Acting
Judge of the Labour Appeal Court
Waglay JP and Tlaletsi
DJP concur in the judgment of Phatshoane AJA
APPEARANCES:
FOR THE APPELLANT:
Adv W.J Hutchinson
Instructed
by Fluxmans Attorneys
FOR
THE THIRD RESPONDENT:
Mr Success Nziana (
in
person
)
[1]
The amount is
captured in a letter dated 01 July 2011 headed annual salary review
which was addressed to Mr Nziana and signed
by the General Manager
of Consol.
[2]
Inter alia:
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
(2014) 35 ILJ 943
(LAC);
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC); (2007) 28
ILJ
2405 (CC);
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013) 34
ILJ
2795 (SCA)
[3]
Rule 7A(9) of the
Rules of the Rules for the conduct of proceedings before the Labour
Court provides that:
‘
Any
person wishing to oppose the granting of the order prayed in the
notice of motion must, within 10 days after receipt of the
notice of
amendment or notice that the applicant stands by its notice of
motion, deliver an affidavit in answer to the allegations
made by
the applicant.’
[4]
Novo Norsdisk (Pty) Ltd v
Commission for Conciliation, Mediation & Arbitration and Others
(2011) 32 ILJ 2663 (LAC) at 2668 para 28.
[5]
Foster v Stewart Scott Inc
(1997) 18 ILJ 367 (LAC) at 369C-E.
[6]
2000 (1) SA 1
(CC) at paras 61 and
65.
[7]
See the judgment
of this Court in
Satani
v Department of
Education, Western Cape and Others
(2016)
37 ILJ 2298 (LAC)
and
other authorities cited therein.
[8]
(2016) 37 ILJ 313 (CC) at 343-345
paras 95 – 102.
[9]
See
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC) at 224 para 66.
[10]
See
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
(2015) 36 ILJ 1511 (LAC)
at
1536 para 53.
[11]
See
Commercial
Catering & Allied Workers Union of SA and Another v Wooltru Ltd
t/a Woolworths (Randburg)
(1989) 10 ILJ 311 (IC) at 315F.