About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2008
>>
[2008] ZALCJHB 17
|
|
Equity Aviation Services (Pty) Ltd v Awuza obo Kruger and Others (JR1350/06) [2008] ZALCJHB 17 (28 March 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO: JR1350/06
In
the matter between:
EQUITY
AVIATION SERVICES (PTY)
LTD
Applicant
and
AWUZA
obo KRUGER L
First
Respondent
COMMISSSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second
Respondent
COMMISSIONER
JOHNSTON N
NO
Third
Respondent
REASONS
MOSHOANA
AJ
Introduction
[1]
On the 19
th
March 2008, I made an order in the following terms:-
1.
The application for
review is dismissed with costs.
[2]
Hereunder shall follow the reasons for such an order.
Background
facts
[3]
The employee, Mr. Kruger was dismissed on the 20
th
of August 2004 for failing to follow a reasonable instruction. The
employee was aggrieved by such a dismissal and then referred
a
dispute to the second respondent for the purposes of
determining the fairness of his dismissal. After hearing evidence
the
third respondent issued an award wherein he found that the dismissal
was unfair procedurally and substantively and ordered
reinstatement
without any loss of remuneration and benefit with effect from the
date of dismissal. Further he ordered the employee
to be paid as
backpay an amount equivalent to 20 (twenty) months compensation in
the amount of
R229 160.00 (Two Hundred
and Twenty Nine Thousand One Hundred and Sixty Rand)
.
The said reinstatement was to occur within 14 (fourteen) days of the
date of award and he made no order as to costs. The applicant
aggrieved by the award of the third respondent launched an
application for review in terms of the provisions of Section
145 of the Labour Relations Act. Such an application was opposed.
The
attack
[4]
In its founding papers the Applicant states that the applicable
grounds of review were those set out in section 145 and as expanded
by the Labour Appeal Court in the
Carephone
decision. The applicant challenged the finding, to a point of its
correctness, of the procedural unfairness. The grounds raised
were to
the effect that there was no complaint at the disciplinary enquiry
and accordingly the employee was afforded an opportunity
to prepare
for her case. The Applicant further challenged the finding by the
Third Respondent to the effect that the notification
to attend
hearing was vague as it refers to a failure to obey a reasonable
instruction but not specify which instructions
it refers to.
[5]
On the findings of substantive fairness, the submission was to the
effect that same is irrational and unjustifiable and reference
was
made to definition of insubordination dealt with by various
authorities. The applicant with reference to the evidence that
was
before the third applicant concluded that he misdirected himself and
such a misdirection resulted in a failure of justice,
alternatively
the finding is irrational and unjustifiable. Edmonds appearing for
the first respondent, submitted that the award
is reasonable and in
so far the applicant seeks to attack the relief of reinstatement such
was not pleaded as a ground in the applicant’s
papers. Such
issue was only brought to light in the supplementary heads of
argument filed days before the hearing of this matter.
Analysis
[6]
In this matter, the applicant sought to rely on the provision of
section 145(2) as
expanded
in the
Carephone
decision. It does appear that effectively the applicant suggested
that the third respondent exceeded her powers. However with proper
consideration of the grounds and submissions made in
court, it was clear that the applicant was attempting to appeal
as
opposed to reviewing the award. Insofar as the challenge for
procedural unfairness, it is apparent that the contention of the
applicant is that that finding effectively is wrong since the
employee had received a fair hearing. In dealing with procedural
fairness, the third respondent in his award, said the following:
“
In
terms of item 2(1), Schedule 8 of the Labour Relations Act, a
dismissal is unfair if it is not effected for a fair reason and
in
accordance with a fair procedure... Item 4 (1) of Schedule 8
lays out the basis for a fair procedure. The notification
to attend
a hearing is vague in that it refers to a failure to obey a
reasonable instruction but does not specify which instructions
it
refers to. Given that the applicant testified that she had been
threatened with disciplinary action over her refusal to work
shifts,
I believe it is reasonable that she might have been unsure as to
which offence she was been charged with. Mr Dawson denied
that he had
threatened the applicant with disciplinary action if she refused to
work shifts, but was contrasted by Mr. Roman’s
testimony in
this regard. It is difficult to see how she might adequately prepare
to defend herself when she was not sure of the
basis of the alleged
misconduct. The appeal hearing was, in terms of the company policy,
to have been held within ten (10) days
of the date of dismissal, on
20 August 2004. Despite this the appeal was postponed three times and
the applicant notified by telegram.
The final date proposed was 19
September, a full month after the date of dismissal. However, the
applicant had, by this stage,
already referred the matter to the CCMA
on 15 September 2004. The respondent referred to an undated and
unsigned letter purportedly
sent to the applicant after 19 September,
informing her that as she had not attended the appeal hearing, the
company deemed the
matter to be closed. Interestingly, this document
was not sent by registered letter and there is no proof that it was
ever served
on the applicant. It also seems odd that the respondent
would send the applicant a letter when it had previously communicated
with
her by telegram. I am not satisfied that the dismissal was
procedurally fair”.
[7]
From the body of the award as quoted, it is apparent that the third
respondent made a finding of procedural unfairness and supported
that
finding with what was before him. Surely the third respondent cannot
be faulted. Although the court sitting in the position
of the third
respondent could have arrived at a different conclusion, probably the
one contended by the applicant before it, but
that is not the test in
review proceedings. Accordingly I find no basis upon which this
finding should be disturbed. To the extent
that it was argued that
such amounted to a gross irregularity in the proceedings. I refer to
the decision of
Sidumo v Rustenburg
Platinum Mines Ltd
[2007] ZACC 22
;
2008 (2) BCLR 158
CC
at
paragraph
262
where
Ngcobo J said the following:
“
The
basic principle was laid down in the often quoted passage from
Ellis
v Morgan
where the court said:-
But
an irregularity in proceedings does not mean an incorrect judgement,
it refers not to the results but to the methods of a trial
such as
for example some high handed or mistaken action which has prevented
the aggrieved party from having his case fully and
fairly
determined”.
[8]
Indeed if one has regard to the charge itself, the charge simply read
as follows:
“
Insubordination
in that you failed to obey a reasonable instruction given to you on
the 13
th
August 2004 by the Assistant Station Manager”.
[9]
Indeed it does not state what the instruction was, it only gives the
date which the instruction was given. In view of the evidence
that
was before the third respondent, although disputed, there is a basis
to find that the charge sheet was vague. In as far as
the days within
which to lodge an appeal, again the third respondent states that in
terms of the company policy the appeal ought
to have been launched
within a certain period of time and any non-compliance with own
policy does in appropriate circumstances
amount to an irregularity
procedurally to the extent that the subsequent dismissal may be
viewed as being procedurally unfair.
Accordingly the finding of
procedural unfairness could not be interfered with. It does appear
that the applicant relied, probably
correctly so before the
Sidumo
judgement, to the test in the
Carephone
decision. The test in the Carephone decision has been jettisoned by
the
Sidumo
judgement and indeed replaced with the test developed in the
Bato
star
decision, which is, the decision
by a decision maker should be one that a reasonable decision maker
would arrive at. The applicant
in its supplementary heads, mounted
various challenges onto the merits and infact made reference to
certain portion which appears
to have been incorrectly typed in the
award. In effect the applicant wished for a different decision than
the one that the third
respondent arrived at.
[10]
The applicant further mounted attacks that the third respondent in
assessing the evidence did not apply the test that would
be required
in such instances as he did not evaluate the credibility of the
witnesses. Clearly a commissioner
in an arbitration process is guided
by the provisions of section 138 of the LRA.
[11]
In dealing with the substantive issues the third respondent had the
following to say:-
“
I
am not satisfied that the applicant contravened the rule against
insubordination. An employee who fails to complete a task to
a
manager’s entire satisfaction is not automatically
insubordinate. If all employees performed their task hundred percent
(100%) satisfactory, hundred percent (100%) of the time there would
be no need for managers. Mr. Dawson stated that he did not
see this
as a case of poor work performance, but one of insubordination
because the applicant had “an attitude problem”.
He
also went on to say that her failure to follow his instruction was
deliberate act to undermine his position. Quite why
manager in such a
senior position would feel so threatened by a relatively low level
employee is not clear. The respondent failed
to introduce any other
evidence to backup this assertion regarding the Applicant’s
attitude, and had infact just months prior
to this incident given her
an award for loyalty to the company and for going an extra mile
during the strike. Mr. Dawson testified
that the applicant had
refused to follow out his instructions during a period of a week, and
during this period he had received
complaints from the client saying
that they had not dealt with her. His credibility in this regard was
undermined because as the
evidence unfolded it emerged that this
incident infact occurred over just two days, the Thursday on which
the instruction was given
and the Friday when another meeting was
held”.
[12]
I do not find any basis upon which I can interfere with that finding
of substantive unfairness. In the
Sidumo
judgement paragraph
118
Navsa J said the following:
“
CCMA
figures reveal that each year between seventy thousand (70 000) to
eighty thousand (80 000) cases are referred to the CCMA
for
conciliation in respect of dismissals. Given the pressures under
which commissioners operate and the relatively informal manner
in
which proceedings are conducted, and the further fact that employees
are usually not legally represented, it is to be expected
that awards
will not be impeccable.
To
my mind having regard to the reasoning of the commissioner, based on
the material before him, it cannot be said that his conclusion
was
one that a reasonable decision maker could not reach. This is one of
those cases where the decision makers acting reasonably
may reach
different conclusions. The Labour Relations Act has given that
decision making power to a commissioner.”
The
issue of costs
[13]
Both parties submitted that there is no reason why costs should not
follow the results. I had no reason not to sanction the
submission
that costs should follow the results.
[14]
For the reasons set out above, the order made on 19
th
March 2008 stands.
__________________
Moshoana
AJ
Acting
Judge of the Labour Court
Johannesburg
Appearances
For
the applicant : Adv Tiry
Instructed
by
: Hofmeyer Herbstein & Ginwala Inc
For
the respondent : AUSA obo L. Kruger
Date
of hearing
: 19 March 2008
Date
of reasons
28 March 2008