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[2008] ZALCJHB 45
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Tile Africa, Germiston v Hintsho NO and Others (JR649/07) [2008] ZALCJHB 45 (26 February 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case
no: JR649/07
In the matter between:
TILE
AFRICA, GERMISTON
Applicant
And
S
HINTSHO
N.O
1
st
Respondent
THE COMMISSION
for 2
nd
Respondent
CONCILIATION
MEDIATION and
ARBITRATION
JOHN
SITHOLE 3
RD
Respondent
JUDGMENT
MOLAHLEHI J
Introduction
[1]
This is an application to review and set
aside the arbitration award issued by the first respondent under case
number JAJB20879-06
dated 8 February 2007. In terms of the
arbitration award the commissioner found the dismissal of the third
respondent, Mr
Sithole (Sithole) by the applicant to be substantively
unfair. It was for this reason that the commissioner ordered the
reinstatement
and compensation of Sithole in the amount of
R2857 39.
Background
facts
[2]
Sithole was employed by the applicant as a
sales consultant during May 2002 and was dismissed during September
2006. The duties
of Sithole were inter alia serving customers,
merchandising and administration and this included doing cash up.
[3]
The version of the applicant is that
Sithole refused to carry out instructions given by Mr Van Wyk.
When Sithole refused to
obey the instruction Van Wyk reported the
matter to the branch manager Mr Kotze.
[4]
Kotze then repeated the instructions to
Sithole that he should do the cash up. He gain refused to
carry out the instruction.
[5]
Sithole on the other hand, testified that
his primary duty was to service customers and cashing up was his
secondary duty.
According to him there is a monthly roster
which determines who of the employees would be responsible for
cashing up and on what
particular day.
[6]
The reason for refusing to obey the
instruction to do the cash up on that particular day was according to
Sithole not because it
was not his duty to do cash up on that day but
because he was busy serving a customer.
[7]
After informing Kotze that he was unable to
carry out his instructions because he was busy with a customer,
Sithole was approached
by Jan van Wyk who said to him:
“
You
must go and do the cash up now.”
Sithole
testified that van Wyk appeared to be furious when he instructed him
to do the cash up.
[8]
Sithole testified that he did not heed the
instructions of van Wyk but continued to attend to the customer and
after completing
the invoice he handed it to the floor staff to pick
up the stock for the customer.
[9]
In relation to the process of cash up
Sithole testified that normally cash up starts at 15H30 or 15H45 but
on that day he was informed
to do the cash up at 16H00. Sithole
also testified that he knew about the rule against insubordination
and that he was aware
of the charge brought against him at the
disciplinary hearing.
[10]
Mr Ntsibande, the employee who testified on
behalf of Sithole, testified that he received an invoice from Sithole
at 16H00 to collect
the stock for the client. The invoice
contained a request from the client that the tiles be cut.
Grounds for review and
the award
[11]
The applicant contended that the
commissioner ignored the crucial evidence which formed the crux of
the case and thus prevented
her from arriving at a reasonable and
justifiable decision. The award was also criticized because the
findings made did not
correspond with the evidence and the document
which were properly placed before the commissioner.
[12]
In her award the commissioner found that
the instruction given to Sithole was unreasonable because at the time
it was given he was
busy with a client. The commissioner found
the explanation by Sithole that at the time he was busy with a client
was corroborated
by the applicant’s own witness van Wyk. She
also found that there was no evidence that a relationship between
Sithole and
the applicant had broken down.
Evaluation
[13]
The test for review as developed in
Z
Sidumo & Another v Rustenburg Platinum Mines & Others
(2007)
12 BLLR 1097
is that of “
a
reasonable decision-maker”
.
In terms of this test the labour court is entitled to interfere with
an arbitration award only if the arbitrator makes a
decision that a
reasonable decision -maker could not reach. In
Edcon
Ltd v Pillemer N. O & Other (unreported case number DA4/06)
the Labour Appeal Court in interpreting the reasonable decision
–maker test said in order for it be said that the decision
is
reasonable:
“
Meaningful
strides are taken to refocus attention on the suppose impartiality of
the commissioner as a decision-maker at the arbitration
whose
function it is to weigh all the relevant factors and circumstances of
each case in order to come with a reasonable decision.
It is
infact the relevant factors and circumstances of each case,
objectively viewed, that should inform the element of reasonable
or
lack thereof
”
.
[14]
I understand the approach adopted by the
Constitutional Court in
Sidumo
and in the subsequent decisions of the Labour Appeal Court in cases
like
Edcon (Supra) and Fidelity Cash
Management Services v CCMA and &Other)
2008 3 BLLR 197
(LAC
)
to mean that this court is required in determining whether or not the
decision of the arbitrator is reasonable to have regard to
the
reasons given for the decision. The function of the court in
this regard is as was held in the unreported case of
Sil
Farming CC t/a Wigwan (JR3347/05
) to
ensure that the decision made by the commissioner in exercising their
functions as the arbitrator fall within the bounds of
reasonableness
whilst at the same time remaining alive to the distinction between
appeals and review. See also
Ladubi
Ato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004
(
4)
SA
4902
(CC)
[15]
The important aspect of a reasonable
decision-maker test is that the emphasis is on the range of
reasonable outcome and not on the
correctness of the outcome.
See
Gimini Indent Agencies CC t/a SNA
Marketing v CCMA 1999 20 ILJ 28752 (LC) And Coetzee v Lebea N.O &
Another 1999 20 ILJ 129.
[16]
In terms of this test a decision
unsupported by any evidence or supported by insufficient evidence or
where the decision-maker ignores
uncontradicted evidence which is
material to the determination that decision will be unreasonable and
stands to be set aside.
See
Sil
Farming (supra) at para (16).
A decision could also be unreasonable if there is a glaring
inconsistency between the facts found by the commissioner and
the
final conclusion arrive at. See
Morningside
Farm v Van Staden N.O & Another (1998) 19 ILJ 1204 (LC).
[17]
In
Standard
Ban
k
of SA
limited v Commission for Conciliation Mediation and Arbitration &
Others
1998 6 BLLR 622
(LC) at 627
the
court held that :
“
Where
a commissioner sitting as an arbitrator has misconstrued oral or
documentary evidence or has ignore or misapplied legal principle
to
an extent that it is inappropriate or unreasonable , then such
commissioner has failed the task under the Act”.
[18]
Turning to the facts of this case it is
common cause that Sithole was given instructions to cash up. He
refused and the explanation
given which the commissioner accepted and
formed the basis of her conclusion is that Sithole was attending to a
customer.
In my view the commissioner adopted a piece meal
approach in dealing with the matter resulting in her failing to apply
her mind
to the totality of the evidence and circumstances of the
case before her.
[19]
It is undisputed that the instructions were
given by two people at different points in time and in all instances
Sithole refused
to do what he was asked to do. The instructions
were very clear particularly at the stage they were issued by van
Wyk.
In this regard van Wyk testified during the arbitration
proceeding (at page 89 line 4-10 of the transcribed record) as
follows:
“
John,
you must do cash up because Dominique is busy.
When
Sithole responded by saying that he was busy with a customer van Wyk
said to him the following
:
“
John,
as soon as you finished with your customer you must do cash up”.
[20]
Van Wyk further testified on the same issue
(at page 89 line 13 as follows:
“
I
saw him standing at the door with no customer around him. I
approached John, I ordered him to cash up and his reply was
he wont
do it and there was nothing I can do about it”
.
[21]
It was also undisputed that despite the
instruction been given 3 (three) times, Sithole, in a disrespectful
and insubordinate manner
and in the presence of other refused to
comply. I agree with the applicant that this evidence was not
seriously challenged
or discredited. The commissioner did not
reject this evidence and therefore there was no basis in arriving at
a conclusion
unsupported by this evidence.
[22]
The reading of the award and the objective
assessment of the circumstances of this case reveal very clearly that
Sithole had committed
a misconduct. Regard being had to this and the
fact that Sithole presented a different version at the disciplinary
hearing stating
that it was not his turn to do the cash up that he
had not been given enough notice and that he had admitted that he was
not aware
that cash up falls within the ambit of his duty as a sales
consulted it is not clear from the reasoning of the commissioner
exactly
why she found in his favour. It is also not clear how the
commissioner could have arrived at this conclusion when on Sithole’s
own version he was instructed at 16h00 to the cash up. Sithole
testified that at 16h00 he handed the invoice to Sibande to collect
the tiles. This means that at the time he received that instruction
he had just finished with the client. There is also no
evidence
assuming that he finished late with the customer that he went to
enquire as to whether by that time cash up had already
been done.
[23]
The explanation for the conclusion of the
commissioner in my view can only be found from the analysis of the
award which reveals
that the commissioner failed to appreciate the
task before her, misconstrued the oral evidence which was presented
and failed to
apply the rules of evidence in her assessment as to
which version to reject and which to accept.
[24]
In my view the commissioner
misdirected herself in the evaluation of the evidence before her and
failed to accord the proper weight
to such evidence. She accorded
undue weight to the evidence of Sithole and more particularly that of
Ntsibande. Ntsibande’s
evidence was simply that he had helped
Sithole with a customer. He took the invoice to collect the
customer’s tiles
which he had to cut to specification before
handing them to the customer.
[25]
In my view it is perfectly clear on the
basis of evidence and the circumstances of this case that the
commissioner failed to appreciate
and decide the true issue of
whether or not the conduct of Sithole amounted to gross
insubordination. The approach adopted
by the commissioner in
concluding that the dismissal was unfair is a misdirection and a
gross irregularity. Accordingly the
arbitration award of the
commissioner stands to be reviewed. It is clear from the record
that had the commissioner applied
her mind she could have come to the
conclusion that Sithole was guilty of gross insubordination.
The next issue she would
have had to consider was whether the
dismissal sanction imposed by the applicant was fair.
[26]
There is authority that refusal to obey a
lawful command should be viewed in a serious light and may justify a
dismissal provided
it is wilful and deliberate. In this regard
Humphries & Jewel (Pty) Ltd v
Federal Council of Retail & Allied Union (1991) 12 ILJ 1032.
[27]
The facts and circumstances of this case
shows very clearly that Sithole refused to obey the lawful and
reasonable instruction which
means he was guilty of a serious
misconduct. Sithole’s conduct and attitude was not just a
mere disregard of the applicant’s
authority but posed a serious
challenge to the applicant’s authority. The question that
then arises relates to the
appropriateness of the dismissal sanction.
[28]
Thus in my view a reasonable decision-maker
faced with the facts and circumstance of this case would have found
Sithole guilty of
insubordination and in the light of his failure to
show remorse the appropriate sanction was a dismissal.
Conclusion
[29]
For the above reasons the arbitration award
stands to be reviewed and set aside. The circumstances of this case
do not dictate that
an order of cost be made.
[30]
In the premises I make the following order
:
“
1.
The arbitration award issued by the
second respondent under case JAJB20879-06 dated 08 February
2007 is reviewed and set aside”.
2.
The award is substituted with the following
award:
“
1.
The applicant (Mr
Sithole) is guilty of gross insubordination.
2.
The dismissal of the applicant (Mr Sithole) was fair.”.
2.
There is no order as to costs.
________________
Molahlehi
J
Date
of Hearing: 29 April 2008
Dated
of Judgement: 26 February 2008
APPEARANCES:
For
the Applicant: SNYMAN ATTORNEYS
Instructed
by:
For
the Respondent: SACCAWU
Instructed
by: