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[2006] ZALCJHB 25
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Harmse v Telkom SA Ltd and Others (JR525/04) [2006] ZALCJHB 25 (28 February 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No: JR 525/04
In
the matter between:
DAVID
GERHARDUS
HARMSE Applicant
and
TELKOM
SA
LIMITED 1
st
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION 2
nd
Respondent
COMMISSIONER
R. HLONGWANE 3
rd
Respondent
REASONS
REVELAS
J
[1]
This was an application to review and set aside an award of the third
respondent (“the arbitrator”) who had found
that the
applicant’s dismissal by the first respondent (“Telkom”)
was both procedurally and substantively unfair.
The applicant had
been in the employ of Telkom for 32 years. He was dismissed for
promoting an employee of Telkom to a higher level
without the
necessary authority.
[2]
The applicant held the position of Senior Manager, Field Operations,
responsible for the Durban area, when he was dismissed
on 21 February
2003. His job content was to “effectively manage field
operations portfolio in order to achieve organizational
objectives
and customer service” and that he could “recognize”
and “reward” performance.
[3]
The dispute about an alleged unfair dismissal which the applicant had
referred to the Commission for Conciliation, Mediation
and
Arbitration (“the CCMA”) remained unresolved and was
eventually arbitrated by the arbitrator.
[4]
The applicant raised several grounds of the review. Firstly, he
protested that the record of the review proceedings were incomplete.
Secondly, he contended that the arbitrator did not understand nor did
he listen to the evidence which was led at the arbitration
hearing.
Inter alia,
he
did not understand the involvement of Telkom’s Human Resources
Department in the actual promotion. The applicant contended
that the
evidence of the two witnesses (Mr Amod and Mr Glas) that the ultimate
responsibility for the promotion, was that of the
applicant, and not
Human Resources, should not have been accepted because they gave no
reasons for their opinions. Another ground
for review was that there
was an unusual delay between the actual investigation and the
disciplinary enquiry. The arbitrator accepted
there was a proper
explanation for it
[5]
The respondent alleged that during August 1998 the applicant had
promoted Ms Kim Willemse to a full time position on level B3.
She
held the position of technical officer.
[6]
The applicant’s version is that he, when he was still Manager:
Access Planning, requested the Senior Manager, Human Resources,
to
arrange for Ms Willemse to be appointed on the top scale of level B4
in a full time position. She was then appointed on level
B3. He said
he had acted on the advice of Mr Peach. Telkom disputed that the
applicant gave such evidence about Mr Peach at the
arbitration
hearing. According to the applicant he did, and this was borne out by
the arbitrator’s notes.
[7]
During 1999 Telkom changed its grading system during a project called
National Grading Alignment Project. Grade B3 was changed
to Grade 10
under the new system. Grades B4 and B5 became Grade 9. Job grading
was performed by Human Resources practitioners on
a specialised
computer programme. When the subsequent spread sheet containing the
new grades was produced, it reflected Ms Willemse
remaining on level
10 (B3) but that she was performing functions on a higher grade “to
be contracted”.
[8]
The applicant said he had asked Mr Fouche, Telkom’s Human
Resources Manager, whether Ms Willemse could not be placed on
Grade 9
since she was doing duties applicable to a higher grade. According to
the evidence of Mr Fouche, he had told the applicant
that although
the dispensation she was on did not warrant a promotion to Grade 9,
the work she performed warranted it. Telkom denied
that such evidence
was given by Mr Fouche at the arbitration hearing. Page 159 of the
record clearly reflects at lines 18 –
24 that Mr Fouche indeed
gave such evidence. The evidence of the applicant was that Mr
Fouche’s body language was such that
he understood him to mean
that he was still considering the matter. This evidence is very
important because it is indicative of
mitigatory circumstances.
[9]
I am not sure if there is merit in any of the grounds of review
raised by the applicant mentioned above. My concern in this
matter is
that the arbitrator had found that “[I]t is reasonable for an
employer to be harsh and to adopt an attitude of
zero tolerance to
employees who conduct themselves in a dishonest and untrustworthy
manner, irrespective of years of service and
personal sacrifices made
by such employees in the interests of the employer”, and that
the “trust relationship had
irreparably broken down”.
These are indeed strong sentiments expressed by the arbitrator.
[10]
The applicant was not suspended pending the investigation into his
conduct. He was sent to one of Telkom’s branches in
Kwa-Zulu
Natal, which was not doing so well. This fact raises the question
whether the applicant was really regarded as untrustworthy
and
dishonest, so as to destroy the trust relationship. The arbitrator
simply accepted it to be so, without applying his mind properly.
[11]
The conduct in question indicates impetuosity on the applicant’s
part, which makes his misconduct fall in the category
of
disobedience, rather than dishonesty. There was no personal gain in
it for him and it was clearly not conduct that could be
hidden or
that he could get away with. It was also not the type of conduct
which outweighed thirty two years of service. It was
conduct that
warranted a strong warning or other corrective dscipline, not
dismissal.
[12]
Moreover, the above observations are strengthened by the fact that Ms
Willemse is still in the employ of Telkom, without being
demoted,
after Telkom’s case was that the applicant and Ms Willemse
conspired to have her promoted.
[13]
In my view, the arbitrator’s failure to afford mitigatory
factors in this matter their due regard means that the arbitrator
did
not apply his mind to the facts before him. That rendered the award
reviewable.
[14]
The award was set aside and substituted with one retrospectively
reinstating the applicant. The first respondent was ordered
to pay
the costs of the application.
__________________
Judge
Elna Revelas
Judge
of the Labour Court of South Africa
Date
of hearing: 03 February 2006
Date
of judgment: 28 February 2006