About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2005
>>
[2005] ZALCJHB 4
|
|
South African Broadcasting Corporation v Commission for Conciliation Mediation And Arbitration and Others (JR466/03) [2005] ZALCJHB 4 (30 December 2005)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
BRAAMFONTEIN
Case
No: JR466/03
In
the matter between:
SOUTH
AFRICAN BROADCASTING
CORPORATION
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND
ARBITRATION
First
Respondent
MTHEMBU.
J
N.O.
Second
Respondent
MEDIAWORKERS
ASSOCIATION OF SOUTH AFRICA
(MWASA)
Third
Respondent
KHOALI.
N
Fourth
Respondent
JUDGEMENT
A.
INTRODUCTION
1.
This is an application for the review of the reward of a CCMA
Commissioner (“
the Commissioner
”). The
applicant is the South African Broadcasting Corporation. The
first and second respondents are the CCMA
and the Commissioner
respectively. The affected employee, Ntshediseng Khoali, is the
fourth respondent.
2.
The fourth respondent was employed in a relatively senior management
position as a regional editor responsible for the newsroom
at the
applicant’s regional office in the Free State. She was
charged with various counts of misconduct (dealt with
in more detail
below). Pursuant to a disciplinary enquiry held during August
2002 she was dismissed. The appeal against
her dismissal was
unsuccessful.
3.
She declared a dispute and the dispute eventually came before the
Commissioner for arbitration by him.
4.
The Commissioner found that the fourth respondent “
was
incorrectly dismissed for misconduct when her conduct as shown by the
respondent’s (that is, the applicant in the review)
evidence
amounted to poor work performance”.
The Commissioner
reinstated the fourth respondent with retrospective effect to the
date of her dismissal.
B.
THE CHARGES
5.
At the disciplinary enquiry the fourth respondent was charged as
follows:
“
1.
Disruption of relations;
2.Poor supervision;
and
3.Undermining and
harming the interests of the SABC.”
6.
Each charge comprised several counts.
7.
Under the head “
Disruption of Relations”
the
charge read as follows:
“
Since your
appointment as Regional News Editor in Bloemfontein on 01 December
1999, the Free State Region as far as the News component
is
concerned, has become dysfunctional and destabilised and that you
have significantly contributed to the tension in the newsroom
by
acting in the following unacceptable manners:
·
During the period December 1999 to May 2002, you have surrounded
yourself with employees whom you regard as supporting you, including
but not limited to Sello Letsoha, Hlaudi Motsoeneng, Molefi Thibile
and Robasana Maliehe, to the exclusion of the rest of the employees
under your supervision resulting in a deep division amongst staff
members.
·
During the period December 1999 to May 2002, you have favoured
certain employees, i.e. by promoting Molefi Thibile to the position
of Senior Producer: Current Affairs, despite an alleged inability to
present news bulletins as a result of alcohol related problems.
·
During the period December 1999 to May 2002, you revealed to
members of the management team the contents of a confidential
discussion,
which Pontsho Makhetha had with you about certain
employees.”
8.
Under the head “
Poor Supervision”
the charge read
as follows:
“
Since your
appointment as Regional News Editor in Bloemfontein on 01 December
1999, you have failed to take appropriate disciplinary
steps against
employees under your supervision as required by the SABC’s
disciplinary procedure and code of conduct, contributing
to the
unstable environment in the News Department and creating the
impression that certain employees are immune to disciplinary
action.
·
During the period December 2000 to December 2001, you failed to
take action against Robasana Maliehe for not returning SABC fleet
vehicles timeously on a number of occasions (see annexure A).
·
During February 2002, you failed to take action against Robasana
Maliehe who was absent from duty between the period 04 February
2002
and 06 February 2002, without prior approval.
·
During April 2002, you failed to take disciplinary action against
Liholo Liholo, who reported late for work and was also absent from
work on 18 March 2002. It was also reported to you that the
problem of late coming happened on a number of occasions, but
you
still refused to take any action in this regard.
·
During the period December 1999 to May 2002, you failed to take
disciplinary action against Molefi Thibile for sleeping on duty and
therefore being unable to present News bulletins as a result of
intoxication.”
9.
Under the head “
Undermining and Harming the Interests of the
SABC”
the charge read as follows:
“
Since your
appointment as Regional News Editor in Bloemfontein on 01 December
1999, you have engaged in conduct, which undermined
or harmed the
interest of the SABC by stigmatising working on the news bulletin.
·
During the period 01 December 1999 and May 2002, you referred to
the News bulletin as a boring place for old people as opposed to
Current Affairs. You have further told employees, specifically
Motale Sebego and Ntsiepe Masoetsa, that you would punish
them by
sending them to the bulleting desk. This had serious effect on
the morale of the employees on the news bulletin and
affected
productivity.”
(All the above quotes are
direct quotes and have not been corrected by me)
10.
The charges were based on provisions of the applicant’s
disciplinary code.
C.
THE FINDINGS OF THE DISCIPLINARY ENQUIRY
11.
Set out below are relevant extracts from the findings of the
employer’s disciplinary panel. They are relevant because
they shed light on the nature of the charges against the fourth
respondent.
12.
Under charge 1:
“
It was clear,
through Mrs. Khoali’s own admission, that there were distinct
and different groupings/cliques that were formed
and operated within
the Newsroom. Both groupings/cliques included but were not
limited to Management and Staff. The
panel has concluded that
the one grouping was under the leadership of Mrs Khoali.
It was further
established that the existence of the groupings resulted in a serious
breakdown of personal and work relations to
the extent where the
Regional Editor perceived herself to be hated by some staff members.
Through Mrs. Khoali’s
conduct and behaviour, she played a significant role in dividing and
pollarising the Newsroom.
Further to that, Mrs Khoali perceived
the other grouping as “gangster” which clearly indicates
the deep division that
exists in the Newsroom.
Staff not belonging to
the Regional Editor’s grouping were deliberately disempowered
and felt marginalized which led to undermining
and defying her to the
extent where their conduct constituted gross insubordination.
The continued defiance
and insubordination of staff and the consequences of Mrs Khoali’s
failure to act to ensure harmonious
working relations in the Newsroom
resulted in the irreparable relations between her and the staff.”
13.
Under charge 2:
“
The panel
concluded that Mrs Khoali failed to adhere to the SABC disciplinary
code by not exercising full responsibility and accountability
over
serious acts of misconduct, by not only general staff but also
members of her management team.
As Mrs. Khoali is held
ultimately responsible for instilling discipline in the Newsroom, she
should not abdicate the responsibility
of addressing serious acts of
misconduct and defiance.”
“
Mrs. Khoali’s
failure to act against Liholo Liholo’s serious misconduct
amounts to dereliction of duty. Her attempt
to address this
issue does not constitute any disciplinary action in line with the
serious nature of the misconduct by Liholo Liholo,
a senior member of
her management team. The panel therefore finds Mrs. Khoali
guilty.”
14.
Under charge 3:
”
Evidence led
proved that Mrs, Khoali is partially culpable for the negative
perceptions and stigmatising of the bulletin desk as
she failed to
combat and indeed contributed to the prevailing negative perception
of the bulletin desk.”
(Again, the above quotes
are direct and have not been corrected by me)
D.
THE EVIDENCE
15.
On the outset it should be pointed out that the record appears to be
incomplete. It is further not possible to state with
certainty
whether the omissions are material. I refer in particular to
the evidence-in-chief and the cross-examination of
the fourth
respondent, the evidence of Mr. Conradie, the evidence of Mr. Letsoga
and the evidence of Mr. Zikalala.
16.
Several witnesses testified on behalf of the applicant. Their
evidence traversed a wide range of events and conduct attributed
to
the fourth respondent.
17.
In summary, the factual allegations levelled against the applicant
amounted to the following:
16.1
Allegations of an improper use of her power to make or recommend
appointments;
16.2
Allegations of an abuse of her disciplinary powers; for example, a
deliberate
failure to discipline favoured employees for what appeared
to be serious misconduct;
16.3
Allegations of an abuse of her power to recommend and bring about
salary
increases for favoured employees; and
16.4
Allegations of an abuse of her managerial powers to punish (unjustly)
those not favoured by her.
18.
Further, the evidence led was to the effect that her conduct as
testified to seriously harmed the interests of her employer.
19.
The evidence was not fully challenged in cross-examination. In
her own evidence the fourth respondent did not deal in
any material
detail with the allegations levelled against her but satisfied
herself with a series of bare denials. The evidence
given by
witnesses on her behalf did not improve this situation materially.
E.
THE FINDINGS OF THIS COURT
20.
It does not appear from the Commissioner’s award that he
analysed the evidence in any material detail. Nor did he
assess
its value or cogency. His approach appears to have been simply
to categorise the evidence against the fourth respondent
as
constituting complaints of poor performance and to conclude that
because she was disciplined for misconduct and not for poor
performance, her dismissal was unfair.
21.
By seeking to categorise the issues in the way he did, the
Commissioner erred. Clearly the charges and the evidence
against
the fourth respondent would, if sufficiently proved,
constitute evidence of conduct justifying dismissal. But more
importantly,
in adopting the approach that he did, he failed to
address the issues that he was required to do, namely, whether the
fourth respondent
was guilty of conduct serious enough to warrant
dismissal.
22.
The notional line between the various circumstances that could give
rise to a fair dismissal (misconduct, poor performance,
incapacity
and operational requirements) is not always easy to draw. Often
the same conduct may give rise to more than one
appropriate
categorisation. Employers may often, not unreasonably, err in
their attempts to categorise the circumstances
giving rise to a
potential dismissal. The failure correctly to categorise should
not however detract from the appropriate
inquiry in each case,
namely, to assess first, whether there was a substantively fair
reason for dismissal and second, whether
an appropriate and fair
procedure was followed by the employer.
23.
There are other problems with the award. The Commissioner found
that there was no evidence of procedural unfairness.
Yet, his
award appears to have been materially influenced by two findings.
The first was that the investigation giving rise
to the disciplinary
proceedings was unfair. The second was that the employer was
guilty of a failure to follow a fair procedure
in relation to
allegations of what he concluded were allegations of poor performance
(something which in any event he failed to
deal with properly in his
findings). Finally, it is not apparent from the award that the
Commissioner properly considered
whether, in all the circumstances,
reinstatement was an appropriate remedy.
24.
Applying the test for review generally accepted in this court, I
conclude that the award of the Commissioner is reviewable and
stands
to be set aside. The ultimate award of the Commissioner is not
justifiable in relation to the reasons given.
Moreover his
incorrect approach resulted in a failure to do what the
Labour
Relations Act, 1995
, required of him, namely, to assess the evidence
and to make a finding as to whether the conduct complained of was
proved and if
so whether it was serious enough to warrant dismissal.
There has not been a trial of the issues as is required by the
Labour
Relations Act.
See
; Carephone (Pty) Ltd
v Marcus NO and others (1998) 19 ILJ 1425 (LAC);
and
Toyota SA Motors (Pty)
Ltd v Radebe and others (2000) 21 ILJ 340 (LAC)
25.
I have given some thought as to whether this matter should be
referred back for reconsideration by the first respondent or whether
I should, in this judgement, finally dispose of the matter.
There is something to be said for the latter approach.
Importantly, the finalization of this dispute has taken far too long.
26.
However I have decided to refer the matter back to the CCMA for
determination before a Commissioner other than the second
respondent.
I am concerned that the record appears to be
incomplete and it is impossible to tell whether the omissions are
material.
I am further of the view that a fair outcome can only
be arrived at when the evidence is properly considered in accordance
with
the requirements of the
Labour Relations Act. This
would
require an assessment as to whether the conduct testified to is
sufficiently proved, and if so, is serious enough to warrant
dismissal. Further, consideration needs to be given to whether,
in any event, reinstatement the fourth respondent would,
in all the
circumstances, be appropriate even if the dismissal is found to be
procedurally or substantively unfair. In my
view it is
appropriate that these tasks be performed by the first respondent.
27.
I do not believe that an award of costs is appropriate, certainly at
this stage.
F.
ORDER
28.
Accordingly I make the following order:
26.1
The award of the fourth respondent is reviewed and set aside.
26.2
The dispute is referred back to the Commission for Conciliation,
Mediation
and Arbitration for reconsideration before a Commissioner
other than the second respondent.
26.3
There is no order as to costs.
DATED
AT JOHANNESBURG THIS 30
th
DAY OF DECEMBER
2005.
____________________________
P
J PRETORIUS S.C.
Acting
Judge: Labour Court
30
December 2005
FOR
THE APPLICANT: P
Maserumule of Maserumule Inc.
FOR
THE THIRD AND FOURT RESPONDENTS: Adv P Kennedy
S.C. instructed by Joubert Scholtz Denga