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[2008] ZALCJHB 38
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South African Post Office v Jansen and Others (JR832/07) [2008] ZALCJHB 38 (22 March 2008)
IN
THE LABOUR COURT OF SOUTHN AFRICA
HELD AT JOHANNESBURG
In the matter between:
CASE NO JR 832/07
SOUTH AFRICAN POST
OFFICE
APPLICANT
LIMITED
And
G S JANSEN
VAN VUUREN
N.O
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION 2
ND
RESPONDENT
PIETER STEPHANUS
BURGER 3
RD
RESPONDENT
JUDGEMENT
Molahlehi J
Introduction
[1] This is an
application in terms of which the applicant seeks an order to review
and correct or set aside an award issued under
case number GAPT
2030-6, dated 31 January 2007.
[2] The award was
received by the applicant on the 6
th
February 2007 and the
review papers were filed on the 12 April 2007. It is in this
regard that the applicant has also filed
an application for
condonation for the late filing of its review application.
[3] Whilst the
explanation proffered by the applicant is not satisfactory the period
of delay which is 22 (twenty two) days is
not excessive. I have
for this reason decided to grant condonation for the late referral of
the applicant’s review
application.
Background
facts
[4] At the time the
unfair labour practice dispute arose the third respondent, Mr Burger
(the employee) was employed as a senior
systems programmer by the
applicant and was responsible for the installation and maintenance of
server level computers.
[5] On the 1
st
December 2005, the applicants experienced an electricity outage in
the server room. The applicant contended that the employee
was
the only person last seen in the server room prior to the outage.
It was because of this that the employee was called
upon to provide
an explanation as to what happened. The employee was suspended on the
8 December 2006, as he was found by the applicant
to have provided an
unsatisfactory explanation for the outage. The employee was
suspended because it was suspected that he
had made unauthorised
changes in the production environment.
[6] The employee was
charged with the following:
“
Gross
negligence and dishonest working or making changes in Production
environment on 1 December 2005 between 11:15 and 12:15 without
proper
authorisation. This action resulted in a loss of about twenty one
transactions. In spite of having several meetings
with
management trying to find a cause of the outage you fail to come
forward with the explanation”.
[7] Following the
disciplinary enquiry the employee was issued with a final written
warning which provided as follows:
“
Transgression
of the company’s disciplinary code: Negligence- Working or
making changes in the production environment on the
1st December 2005
between 11:15 and 12:15 am without proper authorisation”.
[8] The applicant
conceded that it failed to properly adhere to its own disciplinary
code and procedures but contended that the
employee
was the
only person in the server room at the time and that therefore the
only inference it could draw was that he had caused the
outage.
Grounds
of review
[9] The applicant
contended that the first respondent, the Commissioner, committed
misconduct in relation to his duties and exceeded
his powers by
granting compensation to the applicant for the unfair labour practice
dispute.
[10] The applicant
further contended that the Commissioner committed a gross
irregularity in issuing his ruling and comparing the
facts of this
matter with those involving sexual harassment.
[11] The applicant also
attacked the award because the Commissioner relied on the case of
Intertech Systems (PTY) LTD v/s Sowter (1997) 18 ILJ 689 (LAC)
where it was held
:
“
It
is clear to me that not every compensation has to be derived from an
actuarially calculable loss. In the present case Sowter
must be
compensated for the egregious invasion of employment security and her
dignity which the company perpetrated. That
calculation cannot
be mechanical”.
[12] The applicant
further contended that the Commissioner erred in his finding that the
suspension and the warning issued against
the employee resulted in
the invasion of the employee’s security and undermined his
dignity.
[13] The applicant also
attacked the decision of the Commissioner for granting the employee
compensation in the amount of R126827.28
on the basis that the
employee at no stage suffered any financial loss as he was paid
during his suspension. The further
submission made by the
applicant was that the written warning which was given to the
employee had elapsed at the time of the arbitration
hearing.
[14] The Commissioner was
also criticised for awarding the compensation without quantifying the
damages that the employee suffered
as result of the suspension.
[15] The final criticism
against the Commissioner is failure to take into consideration the
time of the year as well as the fact
that the employee was suspended
on the 6
th
December 2006 and his enquiry took place on the
16
th
December 2007, a period that is not unduly long.
[16] The employee did not
deny that he was in the server room on the day in question. He
testified that he was on that day
installing rails on which the
servers were to be mounted in the cabinets in the server room.
He further testified that this
was part of his job and his presence
in the server room on the day in question was authorised.
Whilst busy in the server
room the manager of operations department
Mr Paul Bosman and Network Technicians Mr Badenhorst entered the
server room and informed
the employee that there had been a loss of a
banking transaction. The applicant assisted them to investigate
the cause to
no avail. The cabinet on which the employee worked
and the network switches in that cabinet were checked by both Mr
Bosman
and Mr Badenhorst who could not find anything wrong.
[17] Apparently whilst
busy investigating the cause of the loss of the banking transaction
Ms Mosupe also entered the server room
and enquired from the employee
what he could have done that may have caused the transaction loss.
In addition to the applicant
informing her that he had not done
anything wrong, both Messrs Bosman and Badenhorst also informed her
that they could not find
anything wrong.
[18] The Commissioner
found that the applicant did not know what caused the outage on the
1
st
of December 2005, and that the employee was suspected
of being the cause simply because of his presence in the server
room.
He further found in this regard that the applicant had
placed the burden on the employee to prove that he was not
responsible for
the outage.
[19] The Commissioner
also found that the applicant expected the employee to plead to a
charge which neither the chairperson of
the disciplinary enquiry nor
the applicant could tell him what he was alleged to have done.
In these regard the Commissioner
found that the acceptance by the
chairperson of the plea of guilt by the employee in the circumstances
of the case was patently
unfair. He found the charge to have
been extremely vague and did not disclose any misconduct. In
these regard the Commissioner
also found that negligence per se
cannot constitute misconduct and the applicant should have formulated
the charge by indicating
the act of the employee which constituted
negligence or an omission.
[20] As concerning the
plea of guilty by the employee at the disciplinary hearing the
Commissioner found that the record of the
disciplinary enquiry did
not reflect an unequivocal admission of guilt by the employee and
therefore the “possibility of
negligence” by the employee
did not constitute an admission of guilt.
[21] In relation to the
issue of unauthorised presence of the employee in the server room the
Commissioner found that it was common
cause that the employee was
authorised to work in the server room.
[22]
The commissioner rejected the applicant’s contention that the
employee had caused the transaction losses. He also
rejected
the video footage as being inconclusive in that it did not show the
applicant doing anything he was accused of.
[23] It was on the basis
of the above detailed analysis of the evidence and the facts that the
Commissioner came to the conclusion
that the warning issued to the
employee constituted an unfair labour practice.
[24] In my view the
Commissioner had fully appreciated the task that was before him and
applied his mind to the dispute he was required
to consider and
resolve. The conclusion that the commissioner arrived at is
fully and well supported by not only the thinking
he embarked on but
also by the evidence and the circumstances of the case. His
decision in this regard, in my view, meet
the threshold of
reasonableness as set out in
Sidumo & Others v Rustenburg
Platinum Mine LTD (2007) 28 ILJ 2405 and
Fidelity Cash
Management Services v
CCMA
(2008) 3 BLLR 197
(LAC).
[25] Turning to the issue
of suspension the Commissioner found that the suspension constituted
a separate unfair labour practice
in that it was unwarranted and
inherently unfair from both a procedural and substantive point of
view. The commissioner found
that the employee was left in the
dark as to the nature of the offence and was not offered an
opportunity to say why he should
not be suspended or to state his
case.
[26] In arriving
at the decision that the suspension was unfair the commissioner
reasoned that the suspension usually prejudices
an alleged offender,
psychologically and in terms of future job prospects. In
support of his view the Commissioner correctly
relied on the decision
in
Muller and Other v Chairman of the Ministers’ Council
House of Representative an Others (1991) 12 ILJ 761 at 775 to 776
where the court held:
“
The
implications of being barred from going to work and pursuing one’s
chosen calling, and of being seen by the community
round one to be so
barred, are not so immediately realized by the outside observer and
appear, with respect, perhaps to have been
underestimated in the
Swart and Jacobs cases. There are indeed substantial social and
personal implications inherent in that
aspect of suspension.
These considerations weigh as heavily in South Africa as they do in
other countries.
[27] The commissioner was
also influenced by the comment made by
Prof Halton Cheadle in his
article; Regulated Flexibility Revisiting the LRA and the Blea (2006)
27 ILJ 663 at 683 to 684 where
the learned author says:
“
It
is suspension pending disciplinary action that requires considered
review. There are two abuses: arbitrary decisions and
the
inordinate periods of suspension. Suspension is the employment
equivalent of arrest. The only rationale for suspension
is the
reasonable apprehension that the employees will interfere with
investigation or repeat the misconduct. It follows
that it is
only in exceptional circumstances that an employee should be
suspended pending a disciplinary enquiry. The employee
suffers
palpable prejudice to reputation, advancement and fulfilment.
These limited reasons for suspension and this prejudice
make a
compelling case for regulation
”
[28]
Having found that the warning issued against the employee and his
suspension constituted an unfair labour practice the Commissioner
ordered the applicant to compensated the employee in the amount of
R126 827.28 (one hundred and twenty seven rand and twenty eight
cents) which is an equivalent of six month salary.
Evaluation
[30] Section 194 (4) of
the Labour Relations Act provides:
“
The
compensation awarded to an employee in respect of an unfair labour
practice must be just and equitable in all circumstances
but not more
than the required of 12 months remuneration”
[31]
In
Solidarity
obo Kers v Mudau No & Others (2007) 28 ILJ 1146 (LC),
Mokgoatlheng
AJ
in dealing with unfair labour practice
concerning demotion held that the employer had committed an unfair
labour practice and the
employee was entitled to compensation for the
period that he would have been appointed into the position in
question.
[32] The same
approach was adopted by Ravelas J in
MEC for Tourism,
Environmental & Economic Affair, Free State v Nondumo &
Others
(2005) 10 BLLR 974
(LC) at para 977 G,
where the court
held that in a matter where it was conceded that the suspension was
both procedurally and substantively unfair
that the first respondent
would be entitled to 12 months remuneration.
[33] In MEC for Transport
the employer had conceded that the employee was not paid for the 9
(nine) months period of suspension.
This meant that the
employee had suffered in terms of the actual monetary loss, of 9
(nine) months salary loss. After reviewing
the arbitration
award where the Commissioner had awarded 18 (eighteen) months
compensation for outstanding salary and 12 (twelve)
months’
compensation in terms of s 194 (4) of the LRA, the court substituted
the award and ordered compensation in an amount
equal to 12(twelve)
months remuneration. The court also awarded compensation for 9
(nine) months remuneration being for the
non payment during the
suspension.
[34] The Labour Appeal
Court in
Ferodo (Pty) Ltd v De Ruiter (1993) 14 ILJ 974 (LAC),
in dealing with the issue of compensation in an unfair labour
practice under the 1956 Labour Relations Act, formulated following
guidelines which are in my view apposite even under the current
labour regime:
(a)
[T]here must be evidence of actual financial loss suffered by the
person claiming compensation;
(b)
There must be proof that the loss was caused by the unfair labour
practice;
(c)
The loss must be foreseeable, ie not too remote or speculative;
(d)
The award must endeavour to place the applicant in monetary terms in
that position which he would have been
had the unfair labour practice
not been committed;
(e)
In making the award the court must be guided by what is reasonable
and fair in the circumstances;
(f)
There is a duty on the employee (if he is seeking compensation) to
mitigate his damages by taking all
reasonable steps to acquire
alternative employment.
[35] The decision of the
Labour Appeal Court in
Johnson & Johnson v Cwiu
(1998) 12 BLLR
1209
(LAC)
is also instructive on the approach to adopted when
dealing with the issue of compensation although the decision dealt
with section
194 prior to the 2002 amendments of the LRA. The
Court held that even if it is accepted that compensation means a sum
of
money for the loss suffered by an employee, the loss suffered is
not necessarly the actual loss suffered as a result of the procedural
unfairness. Compensation in terms of Johnson & Johnson
included payment in solace for the loss of a right.
[36] I align myself with
the Commissioner’s view in
Fourie v Capitec Bank (2005) 1
BALR 29 (CCMA)
, where it was held that:
“
The
determination of appropriate relief, therefore calls for the
balancing of the various interests that might be affected by the
remedy. The balancing must at least be guided by the objective,
first, to address the wrong occasioned by the infringement
of the
constitutional right, secondly to deter future violations, third to
make on order that can be complied with, and fourth
of fairness to
all who might be effected by the relied invariably, the nature of the
right infringed and the nature of the infringement
will provide
guidance as to the appropriate relief, “we must carefully
analyse the nature of [the] constitutional infringement
and strike
effectively of the source”.
[37]
In the present case, in awarding the compensation as he did the
commissioner ought to have weighed the unfair labour practice
by the
applicant against the loss that the employee suffered as a result,
including the extent to which the employee’s right
to a fair
labour practice was infringed. This entails looking also at the
length of period of the suspension and the procedure
that led to the
issuance of the written warning against the employee.
[38] In my view the
commissioner failed to apply his mind to what was just and equitable
compensation for the employee in the circumstance
of this case.
Whilst, the commissioner correctly found the suspension and the
warning to have been unfair, he failed to take
into account when
considering compensation that, the period thereby was not long and
the suspension was with pay. The employee
suffered no actual
financial loss as a result of the suspension. The commissioner
also ought to have taken into account the
fact that at the time of
the arbitration the warning issued against the employee had expired.
[39]
There is however a need to send a message to employers that they
should refrain from hastily resorting to suspending employees
when
there are no valid reasons to do so. Suspensions have a
detrimental impact on the affected employee and may prejudice
his or
her reputation, advancement, job security and fulfilment. It is
therefore necessary, that suspensions are based on
substantive
reasons and fair procedures are followed prior to suspending an
employee. In other words unless circumstances
dictates
otherwise, the employer should offer an employee an opportunity to be
heard before placing him or her on suspension.
[40] Turning to the facts
of this case I am of the view that a fair compensation for the unfair
labour practice committed by the
applicant which resulted in an
injustice to the employee would have been an equivalent of one month
salary.
[41] In the premises, the
following order is made:
1.
The award of the first respondent dated 31
January 2007 is reviewed and corrected as follows:
“
The
respondent should
compensate
the applicant in the amount of R21 137.88 being an equivalent of one
month salary.”
2.
There is no order as to costs.
_______________
Molahlehi J
Date of Hearing: 06
DECEMBER 2007
Date of Judgment: 22
MARCH 2008
APPEARANCES
For the Applicant:
Instructed by: NKAISENG
CHENIA BABA PIENAAR & SWART
For the Respondent:
Instructed by: DEON BRUYN
ATTORNEYS