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[2019] ZALAC 40
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Afgen (Pty) Ltd v Ziqubu (JA34/18) [2019] ZALAC 40; [2019] 10 BLLR 977 (LAC); (2019) 40 ILJ 2276 (LAC) (13 June 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JA 34/18
In
the matter between:
AFGEN
(PTY)
LTD
Appellant
and
NTOMBIZODWA
ZIQUBU
Respondent
Heard:
14 May 2019
Delivered:
13 June 2019
Summary: Review of
arbitration award – employee dismissal found substantively
unfair – Commissioner granting limited
compensation on account
that reinstatement impracticable. Appeal –Court finding
employee’s relationship with her direct
superior did not exist
– consequently it was impracticable to reinstate employee-
Appeal upheld - Court setting aside only
the quantum of compensation
granted by the commissioner and awarded maximum. Recusal – no
basis for the application –
refused.
Coram:
Waglay JP, Jappie JA and Coppin JA
JUDGMENT
WAGLAY JP
Introduction
[1]
This is an appeal and cross-appeal against
the judgment of the Labour Court (Molebaloa AJ) which set aside the
arbitration award
issued by the Commissioner under the auspices of
the Commission for Conciliation, Mediation and Arbitration (CCMA).
[2]
The Commissioner had found the dismissal of
the respondent substantively unfair but refused reinstatement and
awarded the respondent
three months’ salary as compensation. On
review, the Labour Court substituted the award with an order that the
appellant
reinstates the respondent and compensate her in the sum
equal to 24 months’ salary.
[3]
The appellant appeals both against the
order of reinstatement and the amount of compensation. The respondent
cross-appeals against
the quantum of back-pay.
[4]
Before dealing with the merits of the
appeal and cross-appeal, I need to deal with notices of appeal and
cross-appeal. Both parties
sought condonation for their failure to
file their notices on time. This was granted.
Background
[5]
The respondent commenced in appellant’s
employ in January
2011 and
had been in the appellant’s
employ for just over a year during which period she suffered
from depression and was placed
on sick leave for about two months
between October and November 2011. After her return and in December
2011, she was charged with
misconduct. The charges against her were
to the effect that she: (i) send unauthorised e-mails to the
customers and (ii) made untruthful
statements in the e-mails about a
meeting which the appellant was to convene to deal with her work
performance.
[6]
The e-mail which the respondent sent to
many of the appellant’s customers was to the effect that her
employer would be meeting
with her to discuss her work performance
and she would appreciate if the customers provided a report about her
performance in her
dealings with them.
[7]
According to the appellant, it only
discovered this after a number of its customers complained that they
were required to do a report
on their interaction with the
respondent, hence the charge. Furthermore, no meeting was scheduled
to be held as averred by the
respondent in her e-mail.
[8]
On 14 December 2011, a disciplinary hearing
was held and the respondent was found guilty of both charges and
issued with a final
written warning. The respondent was not satisfied
with this and referred the matter to the CCMA as an Unfair Labour
Practice dispute.
[9]
In January 2012, the respondent referred a
further Unfair Labour Practice dispute to CCMA. This related a
dispute concerning payment
of a bonus; medical-aid contribution; and
the supplying of a uniform. Apart from the respondent referring this
to the CCMA, nothing
seems to have happened to this referral.
[10]
In January, the appellant again decided to
charge the respondent with misconduct. Curiously, the charge again
related to the e-mails
the respondent had sent to the appellant’s
customers for which she was charged and convicted in December.
[11]
The charges were fashioned differently this
time. The charges were as to the following effect, that the
respondent: (i) had broken
the trust relationship; (ii) had brought
the company into disrepute; (iii) was insubordinate and (iv) had made
false accusation
against the management.
[12]
Exactly the same facts and allegation that
were raised as at the disciplinary hearing in December were raised at
the second disciplinary
hearing and the charge was that the
respondent’s conduct in sending the e-mails had broken the
relationship between the parties
and brought the company into
disrepute because the customers complained about having to write a
report, believing that the appellant
sought of them to write such a
report.
[13]
Notwithstanding that it was totally
irregular and unacceptable to recharge the respondent on the same
facts. The chairperson of
the disciplinary hearing (who was also the
same person who had chaired the December hearing) found the
respondent guilty of breaking
down the relationship of trust and
bringing the company into disrepute and summarily dismissed the
respondent.
[14]
The charge of insubordination also was
based on the same facts as the December hearing with one addition:
the respondent was also
accused of abusing appellant’s assets
by using them without permission, this related to e-mails with her
curriculum vitae
which the respondent had sent to potential employers
with whom she sought possible employment. The respondent was also
found guilty
of this charge of insubordination and was given a final
written warning.
[15]
The respondent was found not guilty of the
fourth charge.
[16]
Believing her dismissal to be unfair and
the final written warning given to her constituting an Unfair Labour
Practice, the respondent
referred the matters to the CCMA.
[17]
The referrals came before the Commissioner
for arbitration. The commencement of the arbitration reads like a
muddled discussion.
The Commissioner was desperately trying to
establish what is it that he was required to arbitrate and he was
receiving all kinds
of response from two unhelpful representatives.
Eventually, they settled for the following: that the Commissioner
arbitrate two
disputes; (i) an unfair labour practice dispute which
related to the final written warning issued to the respondent on 14
December
2011 and (ii) the unfair dismissal dispute relating to the
respondent’s dismissal based on the two charges she was found
guilty of in January 2012.
[18]
The Commissioner found that in issuing the
final written warning on 14 December 2011, the appellant committed an
unfair labour practice
and as such, the final written warning was set
aside.
[19]
The Commissioner further found that the
appellant had failed to satisfy him that by reason of the respondent
sending off the e-mails
as she did, stating in them that the
appellant would be holding a meeting to discuss her work performance
and calling for a report
on her performance (i) led to a breakdown in
the relationship of trust or (ii) that the respondent brought the
company into disrepute.
Accordingly, the Commissioner found the
dismissal of the respondent substantively unfair.
[20]
There appears to be confusion on the final
warning issued by the appellant on the charge of insubordination.
From the record, it
appears that the respondent took the view that
because the issue of the final written warning in December was found
by the Commissioner
to constitute an unfair labour practice, this
also applied to the final written warning issued by the appellant in
January. It
did not. The final written warning issued in January does
not appear to have been addressed, in fact, the Commissioner was not
asked to deal with this when the parties confirmed what the
Commissioner was required to arbitrate. In my view, this was clearly
an oversight and but for the use by the respondent of the appellant’s
e-mail facilities to send emails for personal purposes,
there was
nothing new in the insubordination charge of January to that of
December.
[21]
In my view, however, nothing much turns on
it although the Commissioner took into account the existence thereof
in deciding the
appropriate remedy and the Labour Court wrongly took
the view that the Commissioner had in fact set aside the final
written warning
issued in January.
Remedies
[22]
Having found that the dismissal of the
respondent was substantively unfair, the Commissioner was mindful
that the primary remedy
he was required to award the respondent was
that of reinstatement because that is what she sought. This was what
section 193
of the
Labour Relations Act 66 of 1995
obliges a
Commissioner to do unless the exceptions contained in
section 193
subsections 2(b) and (c) come into play.
S193
(2) (b) and (c)
provides:
‘
2)
The Labour Court or the arbitrator
must
require the employer to reinstate or re-employ the employee unless –
(a)…
(b) the circumstances
surrounding the dismissal are such that a continued employment
relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the employee;’
[emphasis
added]
[23]
The Commissioner took the view that the
unchallenged evidence of the respondent clearly demonstrated that the
relationships between
the respondent and the appellant was so broken
that reinstating the respondent would not be appropriate. In coming
to this conclusion,
the Commissioner made mention of the evidence of
Ms Wostmann the respondent’s immediate superior and also the
final written
warning.
[24]
In my view, there was no reason to take
into account the final written warning which was issued almost at the
same time as the respondent
was dismissed.
[25]
The
primary issue is that because the respondent’s dismissal was
found to be substantively unfair she was entitled, in terms
of
s193(1)(a)
, to reinstatement or to re-employment in terms of 193
(1)(b). There has to be extraordinary reason to deviate from such
relief
and only so if
s193(2)
comes into play. The conduct of the
employee plays a crucial role where reinstatement or re-employment is
refused notwithstanding
there being no grounds for dismissal. Thus
for example in the matter of
Edwin
Maepe v CCMA and Another
[1]
although the employee’s dismissal was found to be unfair, this
Court refused to reinstate him because it found it was impracticable
for the employee to reinstate or re-employ Mr. Maepe who given false
testimony under oath. Mr. Maepe was employed as a Commissioner
at the
CCMA and was required to arbitrate disputes and consider evidence
presented to him under oath; having displayed total disregard
for
truthful testimony he could, this Court held, not be fit to continue
as a Commissioner of the CCMA.
[26]
The
other relevant matter is that of
Glencore
Holdings (Pty) Ltd and Another v Gagi Joseph Sibeko and Others
[2]
(Glencore) where the Court properly accepted that an employee’s
behaviour can be taken into account to determine if reinstatement
or
re-employment must be awarded, more particularly where an employee
behaved offensively against the employer. Whether the bad
behaviour
was pre- or post dismissal is irrelevant. This Court in
Glencore
stated that an employee’s behaviour no matter how abominable,
cannot automatically deny her/him an award of reinstatement
or
re-employment. Consideration should be given to the degree of
relationship contact between the employee and his superior. The
lack
of a “functional role” performed by the employee in
Glencore including the lack of “functional rapport with
the
superiors” meant that they could be no real obstacle in the
continued employment of the employee by Glencore notwithstanding
the
employee’s abominable behaviour.
[27]
In this matter, the respondent dealt with
the accounts of the appellant’s customers. She fell directly
under the supervision
of Ms Wostmann with who she was required to
interact on daily basis; from whom she had to take instruction; and,
to who she must
report on all and every issue. Yet she refused to do
so. The unchallenged evidence of Ms Wostmann was that the respondent:
‘
seldom
if at all reported back to her as she was required to do;
did not take her
seriously and bypassed her totally;
did not respect her as
her superior;
did not report back to
her as was required in her contract of employment;
did not adhere to
instructions given to her;
was generally rude;
did not have a good
working relationship with her;
did not respond to her
emails;
allowed her work to
fall behind in an unacceptable manner;
had received a number
of verbal warnings and reprimands for her behaviour yet this did not
improve things at all in that the respondent
simply ignored these;
generally
ignored her instructions.
[3]
[28]
Added to this respondent’s own
admission was that there was no relationship between her and the
appellant. In fact, at the
very beginning of the disciplinary
hearing, the respondent’s union representative stated to the
chairperson of the hearing
that no relationship exists between the
respondent and the appellant’s management.
[29]
This is not a case where there is a distant
relationship between the employee and those in authority over her. In
fact, the relationship
is dependent on the respondent and her
superior working closely together and in the absence of this
relationship to reinstate the
respondent into her position would be
totally inappropriate and this is compounded by the fact that the
respondent was in fact
only in appellant’s employ for a period
of just over a year.
[30]
In the circumstances, I am satisfied that
the Commissioner’s decision that it was inappropriate to
reinstate the employee
cannot be faulted.
[31]
Turning then to the issue of compensation,
this is a matter where the respondent’s dismissal is found to
be substantively
unfair and while it is correct that the respondent
was only employed for over 12 months it cannot be said that she is
not entitled
to the maximum compensation that the law permits.
[32]
Section 194
of the LRA provides for
compensation up to a maximum of 12 months’ salary to be
awarded. I see no reason why this should
not be awarded to the
respondent. I fail to understand the rationale behind the
Commissioner only granting the respondent three
months’
compensation, this in my view, cannot be reasonable.
[33]
In view of my finding above, there is no
need to deal with the cross-appeal.
[34]
Finally, I need to add that having
completed the judgment, I received a letter of complaint from the
respondent. She complained
that I had failed to give her a proper
opportunity to state her case; that I had given an appellant far
greater time than I accorded
her to present her argument; and that I
should not have been a judge in the matter as I was party to granting
the petition for
leave to appeal.
[35]
The respondent then launched an application
for the recusal of the bench on the grounds of “appearances of
bias, partiality,
direct personal interest in the outcome [of the
matter] and procedural unfairness”
[36]
There is simply no basis for the
application. not only did the respondent hand in her heads of
argument timeously, we had read the
record and the heads of all the
parties prior to holding our conference for the hearing of the
appeal. At the hearing, both parties
were informed that they need not
read their heads as we have done so but raise all the issues they
wish to in respect of the appeal.
Neither Adv Kruger who represented
the appellant or the respondent read their heads. In fact, when Adv
Kruger sought to read the
various complaints set out in the
affidavit, he was told not to do so. I fail to understand what is
meant by the respondent’s
averment that Add Kruger “read
an opportunistic or misplaced or twisted or untruthful or invalid or
irrelevant paragraph
from his heads of argument.”
[37]
The only discussions on the bench had to do
with the matter itself, there was no instructions to ask or not to
ask questions.
[38]
The respondent furthermore, was never
stopped from saying what she wanted. In fact, the respondent herself
concluded without any
comment from the bench and then before the
appellant could reply she stood up again to raise another point this
was also allowed.
Only after the respondent sat down was the
appellant asked if he had anything to say in reply. With regard to
time for argument,
no restriction was placed on the respondent and in
fact, she errs when she says far more time was allocated to the
appellant as
no time was allocated to either party and the appellant
in fact took less time than the respondent in delivering its
argument.
[39]
With regard to the issue that I should not
have heard the appeal because I was one of the judges on the panel
that granted leave
to appeal, this again is no bar from hearing the
appeal.
[40]
Finally, I need to add that we are not the
first to be accused of being biased and unprincipled in this mater by
the respondent,
she has similarly accused the commissioner who heard
the arbitration as also the court
a quo
and persisted at this hearing with that view.
[41]
With regard to costs, the appellant
justifiably argued that costs should be awarded in its favour in
respect of the recusal application.
While there may be merit in this
submission, I believe that in the interest of equity, there should be
no order as to costs.
[42]
In the result, I make the following order:
(a)
The late filing of the notice of appeal and
cross-appeal is condoned.
(b)
The appeal is upheld with no order as to
costs.
(c)
The order of the Labour Court is
substituted as follows:
‘
The
arbitration award under CCMA case no GAJB 29210-11 is set aside only
in respect of compensation awarded. The employer (respondent)
must
pay the Employee (applicant) the sum of R 78 432 being the amount the
applicant would have earned over a 12 months’
period in
respondent’s employ.’
(d)
The aforesaid amount must be paid on or
before 30 June 2019.
(e)
The cross-appeal is dismissed
(f)
The application for recusal is refused.
_____________
Waglay
JP
I agree
_____________
Jappie
JA
I agree
_____________
Coppin
JA
APPEARANCES:
FOR THE
APPELLANT:
Adv M A Krugers
Instructed
by Marshall Attorneys
FOR
THE RESPONDENT:
In Person
[1]
[2008]
8 BLLR 723 (LAC).
[2]
[2018]
1 BLLR 1 (LAC).
[3]
Record
vol 3 pages 248-249.