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[2017] ZALAC 70
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Jorgensen v I Kat Computing (Pty) Ltd and Others (DA10/16) [2017] ZALAC 70; [2018] 3 BLLR 254 (LAC); (2018) 39 ILJ 785 (LAC) (21 November 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA 10/16
In the matter between:
BARRY JORGENSEN
Appellant
and
I KAT COMPUTING (PTY)
LTD
First respondent
COMMISSIONER RICHARD
LYSTER
Second respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Third respondent
Heard:
23 February 2017
Delivered:
21 November 2017
Summary:
Commissioner
did not deal with alleged poor work performance because disciplinary
inquiry did not recommend dismissal. But commissioner
- awarding
compensation for dismissal for alleged misconduct. Labour Court -
remitting both disputes to CCMA. Held that as the
employer had
dismissed the employee for poor work performance this dispute should
have been arbitrated. Appeal upheld in part.
Issue of poor work
performance remitted for arbitration on certain conditions.
Majority – the
remittance order in the first judgment incompetent in that it would
amount to subjecting the employee to double
jeopardy as he was never
found guilty of poor work performance at the internal disciplinary
hearing – such order giving the
employer the opportunity,
through the back door to appeal the finding of the chairperson in
arbitration proceedings – held
further that the appellant who
is granted the option, was in fact appealing the very decision
sending the matter back to the CCMA
for arbitration- appeal upheld
and cross-appeal dismissed – Labour Court’s judgment set
aside and award reasonable.
Coram: Tlaletsi DJP,
Landman JA, and Phatshoane AJA
Neutral citation:
Jorgensen I Kat Computing (Pty) Ltd
(LAC DA10/16)
JUDGMENT
LANDMAN JA
[1] Mr Barry Jorgensen,
the appellant, appeals against part of the judgment and order
delivered by the Labour court (Witcher J)
on 3 February 2016
reviewing an award of Commissioner Lyster of the Commission for
Mediation, Conciliation and Arbitration (the
CCMA), the second and
third respondents respectively, concerning the dismissal of the
appellant by I Kat Computing (Pty) Ltd, the
first respondent
(hereafter referred to as the company). The company in turn lodged a
cross-appeal against the above-mentioned
order. The cross-appeal was
lodged out of time and an application for condonation for the late
lodging of the cross-appeal has
been delivered. The appeal is with
leave of the court
a quo
.
First respondent’s
application for condonation
[2]
The explanation for the delay is acceptable, the application was not
opposed and condonation was granted.
The facts
[3] The appellant was
employed by the company in 2005 as a product integration specialist
which is an occupation involved with computer
software. The appellant
and the managing director Mr Smith (Smith) got on well together and
shared several extramural interests.
Sometime in 2011, the appellant
handed in his resignation to Smith because he was relocating, for
family reasons, to Durban. Smith
thought highly of him and did not
wish to lose his services. Smith offered the appellant the
opportunity to grow the company’s
business in the Durban area
where it already maintained an office. The appellant was to be the
manager of the branch and was entitled
to recruit whatever employees
he required. His principal function was to sell billing software
products to the medical practitioners
and to provide the necessary
support.
[4] The appellant was
assisted at the branch by Smith’s son-in-law and other staff
that he had appointed. The business was
not a success. The expenses
of the business exceed the income earned by the branch. Smith was
unhappy about the situation. In January
2013 Smith instructed the
appellant to send him monthly reports. Smith did not receive any
reports in respect of February and March
and, on 6 April 2013, Smith
and others came to Umhlanga and spoke to the staff. He told them he
would not pay them until they began
to make a profit. However, he
later relented and paid them half their salaries.
[5] In May, Smith sent a
letter to the appellant explaining why he had halved their salaries
and stated that the appellant had not
complied with any of his
performance targets. The appellant was requested to fly to
Johannesburg to attend a disciplinary enquiry
on 4 June 2013. The
appellant sought legal advice and did not attend the disciplinary
enquiry. This resulted in two disciplinary
enquiries being convened
in Durban chaired by an independent chairperson.
[6] The first enquiry was
to consider a charge of misconduct being gross insubordination. The
second was to consider the appellant’s
alleged poor work
performance. Neither Smith nor the appellant gave oral evidence.
Instead, written statements were handed in.
The chairperson found the
appellant guilty of gross insubordination for failing to attend a
disciplinary hearing on 4 June 2013
and recommended his dismissal.
The disciplinary chair did not recommend his dismissal for poor work
performance because his performance
could not be satisfactorily
evaluated. Nevertheless, the company dismissed the appellant,
inter
alia
, for poor work performance.
The arbitration
[7] The commissioner
heard the evidence of the appellant and Smith. The appellant
discussed the way in which he handled the Durban
office. He testified
that he did not attend the disciplinary enquiry set for 4 June 2013
as he believed he was being set up for
dismissal and his employer had
not performed its contractual obligations towards him. The appellant
acknowledged that he had seen
the letter of 3 June 2013, which
explained that the enquiry was to be an informal meeting and that if
he failed to attend it would
be regarded as gross insubordination.
The appellant also testified about the commission that had been paid
to him in respect of
work done by the company in Johannesburg. This
commission had continued to be paid to him by the company even though
he was managing
the Durban office. The payment of the commission was
halted at a certain stage. His attorney communicated his stance on
the non-payment
and appellant’s fear that the he would not be
dealt with fairly at the disciplinary hearing arranged for 4 June
2013. Smith
testified about the disciplinary enquiry and the
appellant’s alleged poor work performance.
The award
[8] The commissioner
considered that as the disciplinary chairperson had not made a
finding in regard to the alleged poor work performance
and had not
recommended that the appellant be dismissed on that account,
therefore it was not competent for him to arbitrate this
aspect of
the dispute. Accordingly, the commissioner restricted himself to
dealing with the question whether the appellant committed
misconduct,
i.e. gross insubordination and, if so, whether dismissal was an
appropriate sanction.
[9] The commissioner was
satisfied that the failure by the company to fulfil its contractual
obligations meant that the appellant
was not obliged to attend the
disciplinary enquiry. The commissioner had no doubt that the enquiry
scheduled for 4 June 2013 was
intended to be a disciplinary enquiry.
The commissioner found that the weight of the evidence supported the
appellant’s version
that he was told nothing other than that he
was to report to Johannesburg to attend a disciplinary enquiry. The
commissioner was
not impressed by the evidence of Smith.
[10]
The Commissioner relied on
CEPPWAWU
and Others v Metrofile (Pty) Limited
[1]
at para 55 where this Court held that it is an employee’s
choice to attend a disciplinary enquiry or not.
[11] In conclusion, the
commissioner found that the dismissal was substantively unfair. As
the appellant did not wish to be reinstated,
the commissioner awarded
him compensation in the sum of R 165 735. No order was made as to
costs.
The review
[12] The company sought
to review and set aside the arbitration award. The court
a quo
held that:
(a)
The appellant had purportedly been dismissed for gross
insubordination and poor work performance;
(b)
The commissioner had erred in finding that he was not required to
arbitrate the dismissal
dispute in so far as it related to poor work
performance;
(c)
The notice to attend a disciplinary hearing on 4 June 2013 was issued
for such a purpose
and that the commissioner’s finding that the
appellant could elect to attend or not, was a reasonable decision and
therefore
the appellant was not guilty of gross insubordination.
[13] Accordingly, the
Court made the following order:
‘
1. The
findings of the second respondent in relation to all the charges
pertaining to insubordination/gross insubordination and
the charges
related thereto are upheld.
2. The award of the second respondent
(KNDB 9865-13, DATED 17 March 2014) is reviewed and set aside.
3. The matter is referred back to the
CCMA to determine whether the dismissal of the first respondent (the
applicant in the arbitration
proceedings) for allegedly “causing
financial loss to the company as a result of (his) inactivity,
actions and mismanagement
of the Branch”, was procedurally and
substantively fair.
4. The matter must be arbitrated by a
commissioner other than the second respondent.
5. There is no order as to costs.’
Evaluation
Alleged poor work
performance
[14] The court
a quo
correctly found that the commissioner failed to appreciate the
grounds on which the appellant was dismissed. The fact that the
company dismissed the appellant for poor work performance, even
though an independent disciplinary enquiry did not reach a finding
on
this issue (and on the issue of causing a financial loss), may well
give rise to a finding that the appellant’s right
to a fair
process was violated (and possibly impact on substantive fairness of
the dismissal) but poor work performance was explicitly
put in issue
by means of the notice of dismissal and should have been examined.
[15] As cross-examination
of the appellant as regards poor work performance, was disallowed by
the commissioner, it means that this
issue, as submitted by Mr Robin
Pillemer, who appeared for the respondent, was incapable of being
determined by the court
a quo
and by this Court. Mr Prior’s
(for the appellant) submission that this should be done cannot be
sustained.
Gross insubordination
[16] The instruction to
attend a disciplinary is to be evaluated against the events which
preceded it but it does not require an
adverse credibility finding
against Smith. On 6 April 2013, Smith met with the appellant and his
staff and told them that if sales
did not improve he would not pay
them their salaries. The suggestion that they had agreed to this need
can be confidently rejected.
On 1 May 2013, the company paid the
appellant and his staff half their salaries. This caused the
appellant to instruct an attorney
to take up the matter with the
company on his behalf. The result of this is that the company
instructed the appellant to attend
a disciplinary hearing in
Johannesburg on 4 June 2013. The appellant sought legal advice in
regard to his obligation to attend
a disciplinary hearing. He was
advised not to do so, as the company was in breach of its obligations
towards him. The attorney’s
letter to the company recorded the
appellant’s concern about whether he would receive a fair
hearing at the enquiry.
[17] After the
instruction to attend the disciplinary hearing had been issued on 28
May 2013, the Human Resources manager wrote
to the appellant on 3
June 2013, stating that the meeting to be held on 4 June was to be an
informal meeting and that the non-payment
of commission would be
discussed at that meeting. The appellant was warned that should he
fail to attend the meeting, it would
be regarded as gross
insubordination. The letter concluded by saying: “Furthermore,
it is most presumptuous to assume that
the outcome of the meeting has
been predetermined.”
[18] The author of the
letter also contacted the appellant telephonically and told him that
“depending on the outcome”
it might be necessary for him
to stay for a couple of days. She said to him words to the effect
that: “You need to come for
the disciplinary hearing”.
The appellant admitted that she might have told him that he was to
stay and train other people.
But the main aim was to secure his
attendance at a disciplinary hearing.
[19]
It is clear that in spite of a reference to an informal meeting, the
intention was to hold a disciplinary hearing and, depending
on that
outcome, the appellant would have been required to train other
people. Smith himself said that he hoped that the appellant
would
resign from his employment. Had the meeting been called to discuss
only work place issues then
of
course the appellant would have been obliged to attend it and his
failure to do so would have constituted gross insubordination.
But
for the reasons set out above it was not intended to be such a
meeting; it was intended to be a disciplinary hearing.
[20] Taking all the
circumstances into account, including the fact that the payment of
the commission may have been ambiguous, the
holding of a disciplinary
enquiry after the company had breached its duties towards the
appellant is hardly fair. The appellant
feared that he would not be
treated impartially. His fears were not fanciful as is demonstrated
by the fact that although an independent
disciplinary enquiry found
that it could not make a finding on his alleged poor work
performance, the company went ahead and dismissed
him on this ground.
In addition, there is the jurisprudence set out in the award of the
commissioner and the court a quo that an
employee is at liberty to
attend or not to attend a disciplinary enquiry.
[21] I should mention
that the appellant’s alleged insubordination at the Durban
disciplinary enquiry regarding his alleged
poor work performance did
not feature in the letter dismissing him.
[22] In the result, I am
satisfied that the decision by the commissioner, even though he
overlooked the appellant’s testimony
of his conversation with
the HR manager, that the dismissal for gross insubordination was
substantively unfair, was a reasonable
conclusion. I must also point
out that the appellant was not charged with making the employment
relationship unworkable. It may
be related to the alleged poor work
performance. It would have been relevant had the appellant sought
reinstatement but he did
not seek that relief.
[23] The compensation
awarded to the appellant overlooked the fact that the appellant was
on a fixed term contract that had five
months to run at the time of
his dismissal. There was no cause to award compensation more than his
actual loss of income. The award
of compensation was not one that a
reasonable commissioner would have made and to that extent the
compensation should be reduced
to an amount of R92 075 being 5 (five)
times the difference between what the applicant earned and what he
would have earned while
employed by the respondent.
The order setting
aside the award
[24]
It is necessary to return to the order of the court
a
quo
.
The court
a
quo
had found that the dismissal for gross insubordination was unfair and
sought to uphold this finding in the order which it made.
However, as
the further order set aside the award, the finding fell away with the
setting aside of the award. In my view, it would
be more sensible to
uphold the award but enable the CCMA to arbitrate the ground relating
to the alleged poor work performance
and causing the company
financial loss. Of course, any compensation which may be awarded must
take into account amended compensation
award as the total amount of
compensation is restricted to an amount equal to 12 months’
remuneration.
[25] However, the
employment relationship between the parties is at an end and the
appellant has been awarded some compensation.
If the appellant wishes
to pursue these claims, then he must be enabled to do so. If the
appellant does not wish to do so, the
prolongation of the dispute is
not warranted. An enabling order will suffice. A time limit should be
placed on the period within
which the appellant should be entitled to
prosecute the arbitration.
Costs
[26] Although the
respondent has achieved a small measure of success, it will be fair
to make no order as to the costs of the appeal.
[27] In the premises, I
make the following order:
Order
1.
The
late filing of the cross-appeal is condoned.
2.
The
appeal is dismissed.
3.
The
cross-appeal is partly upheld.
4.
The
order of the Labour court is amended to read:
‘
(1)
The application to review the award (KNDB 9865-13, dated 17 March
2014) succeeds in part.
(2)
The matter is remitted to the Commission for Conciliation Mediation
and Arbitration
(the CCMA) for the arbitration
de novo
before
a different commissioner other than the second respondent on the
question whether the dismissal of Mr Barry Lionel Jorgensen,
the
applicant, for allegedly “causing financial loss to the company
as a result of (his) inactivity, actions and mismanagement
of the
Branch”, was procedurally and substantively fair.
(3)
In the event that the applicant wishes to enforce his right in terms
of this order,
he is directed to file a Notice, within 14 days from
date of this order, informing the CCMA that he requires the
arbitration of
this issue.
(4)
Should the arbitration be requested, any award shall take into
account the amended compensation
awarded to the applicant.
(5)
The award is confirmed save that the amount of compensation is
replaced with an amount
of R92 075 being 5 (five) times the
difference between what the applicant earned and what he would have
earned while employed by
the respondent.
(6) There is no order as to costs.’
5.
The 14-day period set out in the amended order of the Labour Court is
to run
from the date of delivery of this order.
6.
There is no order as to the costs of the appeal.
_________________
Landman
JA
TLALETSI
DJP
[28]
I
have read the judgment prepared by my brother Landman AJA,
hereinafter referred to as the first judgment. I am unable, with
respect,
to agree with some of the orders proposed by him. The order
that I would propose is that the appeal should succeed and the
cross-appeal
be dismissed. I would set the orders of the Labour Court
aside and substitute same with the orders to be indicated in the
course
of my judgment.
[29]
The
factual background has been set out in some detail in the first
judgment. It shall therefore not be necessary for the purpose
of my
reasoning to repeat what has been set out already except in so far as
is necessary. I shall, however, refer to some of the
factual matrix
not necessarily reflected in the first judgment which, in my view,
are relevant for my reasons.
[30]
Landman
AJA found that the decision by the commissioner that the dismissal of
the appellant for gross insubordination was substantively
unfair is a
reasonable conclusion. I agree with this conclusion. I also agree
that the compensation awarded to the appellant for
unfair dismissal
in respect of gross insubordination by the commissioner overlooked
the fact that the appellant was on a fixed
term contract that had
five months to run at the time of his dismissal. The compensation
awarded to him is, therefore, more than
his actual loss of income.
Furthermore, the appellant in his evidence testified that he wanted
compensation in the amount equivalent
to six months’
remuneration. By awarding him an amount of compensation equivalent to
nine months’ remuneration amounted
to awarding the appellant
what he did not ask for. I therefore concur with paragraph 5 of the
order proposed by Landman AJA.
[31]
My
disagreement with the first judgment relates to the reasoning and the
order as regards the charge of poor work performance. My
reasons for
disagreement are set out in the paragraphs that follow.
[32]
Two
separate inquiries were held by the chairperson, appointed by the
respondent. The first was an “Incapacity Investigation
Due to
Poor Work Performance”. With regard to the inquiry for poor
work performance the Chairperson recorded that a “
disciplinary
inquiry/poor performance consultation was held on 26 March 2013.”
The nature of the investigation is recorded as:
‘
2.6.1 Poor
work performance in relation to your duties as a Branch Manager, in
that you failed to perform your duties to acceptable
company
standards.’
The appellant appeared in
person. He, together with the representative of the respondent,
presented written statements which were
read out loud during the
proceedings.
[33]
The
submission on behalf of the respondent was that the appellant and his
team were under-performing;
that
he failed to perform his basic duties according to company standards;
as branch manager, he failed to ensure that his three
fellow
employees perform their duties according to company process and
procedures; he failed to submit any documentation recording
the
knowledge and experience that he has gained whilst in the employ of
the respondent which could have assisted any replacement
;
his actions were an attempt to make himself indispensable
;
he failed to recover money from new clients who reneged on their
payments despite numerous requests for him to do so, which was
said
to be a clear obstruction and failure to carry out his duties.
[34]
The
following is recorded by the chairperson in his ruling on the poor
work performance proceedings:
‘
34.2
Upon questioning, the employee/accused explained that he didn’t
really receive any training and/or
counselling, but never requested
more training and/or counselling from the company. He added that he
is well aware of his duties
and what is expected of him from the
company’s point of view, and does not know whether the company
can do anything else
to assist him with his performance. When asked
whether anything is keeping him from performing his duties according
to company
standards the employee refused to answer the question. He
added that he did not follow a grievance procedure and also declined
to answer whether he had any information to prove that he had been
victimised. He added that, according to him, he did nothing wrong,
and that he is still employed by the company.
4.
Finding:
Having regard to the evidence
presented by parties concerned the following is my finding:
4.1
The accused stated that he knew how to do his work, and was aware
what the company expected
of him with regards to his daily duties but
did not request more training, evaluation or guidance.
4.2
The accused explained that he did receive the necessary tools of for
him to perform his
duties according to company standards.
5.
Recommendation:
5.1
The process for the investigation based on the accused’s poor
work performance could
not be satisfactorily evaluated, due to the
uncooperative and unresponsive manner of the accused in failing to
answer certain questions
put to him by myself. This in itself
could be regarded as an act of insubordination and the Judgment of
the insubordination
hearing will have to prevail in this instance.’
[35]
It
is clear from the recommendation that the chairperson did not make
any finding that the appellant made himself guilty of poor
work
performance as alleged by the respondent.
[36]
The
second inquiry was disciplinary proceedings in which the appellant
was charged with the following misconduct charges as per
the “
Notice
to Attend Disciplinary Inquiry
”
served on the appellant:
‘
a
Gross insubordination in that you failed to obey lawful and
reasonable instructions
from your superior.
b
Causing a potential and/or loss to the company as a result of your
actions
above.
c
Failure to follow company policies and procedures with regards to
your actions
above’.
[37]
It
is important to note that there is no reference to “
mismanagement
of this Branch”
at charge (b) or any other charge. The disciplinary inquiry centred
on the failure or refusal by the appellant to attend the enquiry
in
Johannesburg. He was acting on the advice of his attorney that he was
not obliged to attend because,
inter
alia
,
the respondent has, in breach of the contract of employment, not paid
his salary in full. A flight was arranged for him and he
failed to
attend despite being notified of the flight details.
[38]
The
appellant was as a result charged for
insubordination
by refusing to go to Johannesburg, failure to obey lawful
instructions as he was still an employee of the respondent
at the
time, and causing the respondent financial loss to the tune of
R680.00 being the cost of the air ticket.
His defence and version of the events were contained in part D of his
written submission as well as the explanation he gave in
response to
some of the questions at the disciplinary enquiry.
[39]
In
a nutshell, he reiterated that he was not in law obliged to obey
instructions from the employer until such time that the employer
performs his obligations under the employment contract. He declined
to answer questions regarding the reasonableness of the instructions,
whether he followed the grievance procedure which he was well aware
of and whether the respondent had authority over him.
[40]
At
the conclusion of the hearing, the chairperson ruled that:
‘
The
chairperson, after reviewing the evidence submitted by the
complainant and the accused’s own version of events, and a
balance of probability, subsequently found the accused guilty of the
charges listed in 2.8.1-2.8.3.
I find the accused guilty of the
above-mentioned charges, because it was a reasonable instruction
given to him by his superior,
the Managing Director of the Company,
but failed to follow the reasonable instructions, which forms part of
his daily duties, and
therefore his behaviour has led to financial
losses to the company.’
[41]
The
respondent issued a notice of dismissal on 08 June 2013 in which it
indicated that:
‘
You are
hereby informed that as a result of a disciplinary inquiry conducted
on 14 June 2013, your services with the company have
been terminated.
Your dismissal is without notice and you may collect any outstanding
monies, which are due to you within seven
(7) days of the date of
this notice.
The employer’s reason(s) for
terminating your employment are in brief, described below.
1.
Gross
insubordination in that you failed to obey lawful and reasonable
instructions from your superior.
2.
Causing
a financial loss to the company as a result of your inactivity,
actions and mismanagement of the Branch.
3.
Failure
to follow company policies and procedures with regards to your
actions above.’
The appellant was further
advised that he is entitled to appeal the decision as per the company
disciplinary policy or refer the
matter to the CCMA or relevant
bargaining council.
[42]
It
is important to emphasise that the dismissal notice made no reference
whatsoever to the incapacity investigation or for that
matter to poor
work performance. It stated in no uncertain terms that the
appellant’s dismissal
is
as a result of the disciplinary enquiry held on 4 June 2013
and
referred to specific charges of misconduct that the chairperson found
to have been proved. The confusion was in my view caused
by an
incorrect finding by the Labour Court that:
“
Right,
my thinking is as follows, although the [appellant] was not charged
and was not found guilty of poor performance and no finding
was made
of it
he
was nevertheless dismissed for poor work performance which is
evidenced by the dismissal notice
.”
The dismissal notice
makes no reference to any poor work performance.
[43]
The
Commissioner was correct in finding that even from the respondent’s
own version, the chairperson of the enquiry only found
the appellant
guilty of the second set of charges, namely, insubordination for not
attending the enquiry of 4 June and two other
related charges. She
was correct in limiting herself to the charges that formed the basis
for dismissal and not deal with matters
which were not the true
reason for the dismissal. The fact that the second charge relating to
financial loss had the words “mismanagement
of
the Branch
”
added to it in the chairperson’s findings and in the dismissal
notice contrary to what the notice to attend the disciplinary
enquiry
stated does not change the true reason for the dismissal. The
financial loss to the respondent was only limited to his
failure to
attend the enquiry in Johannesburg as instructed. That was the only
evidence tendered at the disciplinary enquiry in
support of the
financial loss. There was no mention of any other cause and nature of
financial loss to the respondent. It would
be opportunistic of the
respondent to suggest otherwise.
[44]
The
Labour Court upheld the commissioner’s findings and award as
regards the insubordination and its related charges. That
is also the
finding in the first judgment. These findings bring the matter to an
end. There is therefore nothing left to be referred
back to the CCMA
for determination by another arbitrator.
[45]
The
respondent sought to review the award on the basis that the decision
reached by the commissioner is a decision that no reasonable
decision-maker could reach. Such a contention is not supported by the
evidence on record and falls to be dismissed. The respondent
never
sought to review the award on the basis that the commissioner
misconstrued the nature of the enquiry before her as the Labour
Court
found.
[46]
In
any case, the Commissioner, by refusing to entertain the poor work
performance as a true reason for the dismissal, did not in
my view
misconstrue the nature of the enquiry before him. On the contrary,
the commissioner appreciated the nature of the proceedings
as well as
the true grounds on which the appellant was dismissed.
[47]
I
have a further difficulty with an order for the referral of the
proceedings back to the CCMA for arbitration. Firstly, the dismissal
which is in effect a termination of a contract of employment between
the appellant and respondent, has been found to have been
substantively unfair already and compensation has been awarded. A
finding by the subsequent commissioner that the dismissal for
poor
work performance was not fair would only be of academic relevance
because the compensation awarded covers the appellant’s
remuneration for the remainder of his employment contract which was
prematurely and wrongfully terminated. Furthermore, a finding
that
the dismissal for poor work performance was fair would not make a
dismissal already found to be substantively unfair on the
basis of
insubordination fair. A referral back to the CCMA for the
determination of only one alleged reason for dismissal would
therefore make no sense.
[48]
Secondly,
and of fundamental importance, the appellant is appealing against the
order of the Labour Court referring the poor work
performance to the
CCMA for arbitration. He contends,
inter
alia
that the referral would be subjecting him to double jeopardy as he
was never found guilty of poor work performance at the internal
disciplinary hearing, which is unfair and consequently wrong.
However, the order proposed in the first judgment is directing the
same appellant, if he so wishes, to request that the dispute be
arbitrated and to file a “Notice” within 14 days from
the
date of the order informing the CCMA that he requires the arbitration
of the said issue. Interestingly, the respondent is not
granted the
same or similar option in terms of the order. As I see it this may be
so because in terms of the
Labour Relations Act, 66 of 1995
, it is an
employee and or its trade union that can refer an unfair dismissal
dispute for conciliation and arbitration and not the
employer. The
order is therefore in my view, impractical to implement because an
employee cannot be compelled to refer an unfair
dismissal dispute to
the CCMA if he or she does not want to do so.
[49]
Thirdly,
the appellant has long left the employ of the respondent and it would
not make practical sense to subject him to discipline
by the
respondent. Fourthly, the referral would mean that it is the
respondent who is aggrieved by the decision of its own chairperson
of
the disciplinary enquiry and is now given an opportunity, through the
backdoor, to appeal the decision through arbitration proceedings.
A
referral that was made to the commission was an unfair dismissal
dispute based on misconduct and not incapacity. The referral
was made
at the instance of the appellant and not the respondent.
[50]
For
the above reasons, I would uphold the appeal and dismiss the
cross-appeal with costs. The order that I would make is as follows:
Order
a)
The
appeal is upheld and the cross-appeal is dismissed.
b)
The
order of the Labour Court is set aside and replaced with the
following:
i)
The
Dismissal of the Applicant by the Respondent is found to have been
substantively unfair.
ii)
The
Respondent is to pay the Appellant an amount of R92 075 being 5
(five) times the difference between what the appellant
earned and
what he would have earned while employed by the Respondent.
c)
No
order is made as to costs in the Labour Court.
d)
The
Respondent is to pay costs of the appeal.
______________
Tlaletsi
DJP
PHATSHOANE
AJA
[51]
I agree with the reasoning by Landman JA and Tlaletsi DJP that poor
work performance was somewhat introduced by means of the
Notice of
dismissal even though the chairperson of the disciplinary enquiry did
not recommend the appellant’s dismissal on
the basis of his
purported poor work performance. However, I do not agree with the
enabling order proposed by Landman JA in paras
24 and 25 of the
judgment because it effectively empowers the commissioner to
reconsider the appellant’s alleged poor work
performance. On
the view I take of this matter, nothing turns on the fact that the
Notice of dismissal shows that the appellant
was dismissed
inter
alia
,
for “causing financial loss to the company as a result of [his]
inactivity, actions and mismanagement of the branch.”
This is
so because the appellant made his choice. Put differently, he does
not wish to have the dispute concerning his alleged
poor work
performance arbitrated. This much is apparent from his grounds of
appeal and heads of argument. Therefore, I concur with
the order
suggested by Tlaletsi DJP.
______________
Phatshoane AJA
Phatshoane
AJA concur in the Judgment of Tlaletsi DJP.
APPEARANCES:
FOR
THE APPELLANT:
Attorney A J
Prior of Prior and Prior Attorneys.
FOR
THE RESPONDENT:
Adv Robin Pillemer
Instructed
by Barkers Attorneys
[1]
(JA37/01)
[2003] ZALAC 22
(19 December 2003).