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[2008] ZALCJHB 35
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Maifo v Myhill NO and Others (JR922/05) [2008] ZALCJHB 35 (22 July 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR922/05
In the matter between:
SOPH
MAIFO
Applicant
And
E L E MYHILL N
O
1
ST
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
2
nd
Respondent
SOUTH AFRICAN EXPRESS
AIRWAYS (PTY) LTD
3
RD
Respondent
JUDGMENT
MOLAHLEHI J
Introduction
[1]
This is an application to review and set
aside the award issued under case number GA 5116/03 dated 31
st
January 2005. In terms of the ward the first respondent (the
commissioner) found that the dismissal of the applicant was
both
procedurally and substantively fair.
The background
facts
[2]
The applicant was prior to his dismissal on
the 2
nd
of October 2002 employed as an executive human resource manager for a
period of about 7 years.
[3]
The applicant was charged with
insubordination and gross negligence of which he was found guilty and
dismissed. The charges were
formulated and set out in a letter dated
12 April 2002, wherein the applicant was notified to attend the
disciplinary hearing.
The case of the
third respondent
[4]
The first witness of the third respondent
Mr Modise an independent Attorney who checked the disciplinary
hearing denied that he
was biased in the manner he conducted the
disciplinary hearing and that he was a close friend of the legal
adviser of the third
respondent Ms Tshiqi.
[5]
According to Mr Modise the applicant had
initially no problem with him chairing the disciplinary hearing until
when findings of
guilt against him was made. The applicant’s
attitude detoriated further during presentation of mitigation.
[6]
Modise testified further that the applicant
was properly charged with misconduct and not incapacity and that at
the end of the hearing
he was satisfied that the third respondent had
proved its case and after considering the charges cumulatively he
came to the conclusion
that an appropriate sanction was a dismissal.
[7]
The other accusation against Modise was
that he denied the applicant the opportunity to present his case
without interruption and
that the comment he made about settlement
was a threat intended to the applicant. Modise denied this and
indicated that his style
whenever he conducts disciplinary hearings
is to enquire at the beginning of the proceedings if there were any
prospects of settlement
negotiations.
[8]
As concerning the issue of Mr Vermeeleun
testifying through the telephone conference, Modise testified that
the arrangement was
made only after both parties had agreed to it.
[9]
The first charge against the applicant
related to the allegation that he failed and neglected to submit a
staff optimization plan
as it was required by Ms Dibate the Chief
Executive Officer (the CEO).
[10]
In order to develop an optimization
plan the applicant needed information on bench making of the
aircraft. He informed the
CEO that he did not have information
on bench making of the aircraft. The applicant submitted to the
CEO the optimization
plan only when he was asked about it by the
CEO. The plan was seen by the CEO as below standard and as
nothing but the regurgitation
of the provisions of S189 of the LRA 65
of 1995.
[11]
The CEO expressed satisfaction of the plan
in an email dated the 3
rd
of March 2002. The CEO demanded an amended or improved plan from the
applicant on the 4
th
March 2002. The plan was not ready and the applicant requested
for an extension.
[12]
The version of the third respondent was
that because the plan, as a matter of urgency due to the financial
difficulty the third
respondent found itself, the applicant was put
on special leave and the task was given to someone else.
[13]
As concerning the second charge of refusing
or neglecting to initiate and manage the score card process the CEO
testified that the
score card was suppose, to be implemented as a
matter of urgency. She had advised the applicant in a meeting
where this issue
was discussed that he was speaking to a wrong
person, Mr Nozipho Ndaba at the Esselen Park about the information
relating to the
score card. She informed the applicant that the
person should be speaking to at Esselen Park was Mr Johan Vermeulen.
In this regard the applicant was told by the CEO to meet with
Vermeulen who had given 3 (three) days where he could be available
to
meet and discuss the matter.
[14]
At the management meeting on the 29
th
February 2002, when asked why he did not meet with Vermeulen the
applicant became aggressive according to the CEO. The CEO
then
instructed him to make sure that he meet with Vermeulen as soon as
possible otherwise he could be disciplined.
[15]
Vermeulen in the testimony he gave over the
telephone, after it was so agreed between the parties, blamed the
applicant for failure
of progress on the issue of score card.
He accused the applicant of failing to co-ordinate meetings properly.
[16]
The CEO testified that despite having told
to prioritise the score card the applicant had done nothing on this
issue by the end
of February 2002. the CEO addressed a letter
to the applicant on the 1
st
of March 2002, informing him that she noted that he had not at that
stage confirmed meeting with people who are supposed to be
part of
the process and that as it was already Friday, some of them could
have already filled in their diaries.
[17]
The applicant was not found guilty on
charge against him regarding failure or neglect to attend to the
employee’s grievances.
The case of the
applicant
[18]
The applicant testified that the issue of
the optimization plan was first discussed at the meeting of the board
on the 11
th
December 2001. He discussed the matter first with Mr Sam
Pretorius before consulting with other people in other operations.
He in this regard sent an email requiring information from various
people regarding the score card. He contended that the
first
time he received a formal instruction regarding a bench make on the
staff optimization was on the 27
th
February 2002, in an email from the CEO.
[19]
The applicant further testified that, he
informed the CEO on the difficulty he was encountering on obtaining
information regarding
the score card, because the CEO insisted the
plan was to be given to her on the same day.
[20]
The applicant received an email on the 4
th
March 2002 from the CEO and as a result thereof the applicant sought
a meeting with her but was told that she was only available
the
following day. The applicant managed to meet with the CEO at
17H00 and during that meeting the CEO demanded the optimization
plan. It was after this meeting that he received a letter that
he was placed on a special leave.
[21]
The applicant denied the accusation by
Vermeulen that he failed to honour scheduled meetings.
Grounds of review
[22]
The applicant challenged the decision of
the commissioner on the basis that he did not base his decision or
conclusion on the evidentiary
material that was placed before him and
also on the general legal principles of the law. In this regard
the applicant contended
that the conclusion reached by the
commissioner was so fundamentally floored that it amounted to both
gross irregularity on the
part of the commissioner.
[23]
The award was also challenged on the basis
that the commissioner failed to properly construe and make a proper
analysis of the evidence,
facts and arguments before him.
The arbitration
award
[24]
The commissioner agreed with the findings
of the chairperson of the disciplinary hearing that the applicant
should as HR Executive
Manager, have acted speedily and with the
sense of urgency given the precarious financial situation that the
third respondent was
faced with. It was for this reason that
the commissioner found the applicant of gross negligent. The
commissioner also
agreed with Modise regarding the applicant’s
conduct concerning the implementation of the balance of the score
card system.
[25]
As concerning the appropriateness of the
sanction the commissioner, reasoned that the good record that the
applicant had with the
third respondent did not mitigate the
seriousness of the offence and that the appropriate sanction was that
of dismissal.
Evaluation of the
award
[26]
The assessment whether or not to review an
arbitration award is not based on the correctness of the outcome of
the award but on
its reasonableness. The fundamental
requirement in this regard is that the relevant evidence must be
taken into account and
be objectively assessed in the determination
of whether or not the commissioner’s decision is reasonable.
[27]
It is now firmly established since
Z
Sidumo v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405
(CC)
that the test to apply in
evaluating and considering whether or not to review the decision of
the CCMA commissioners is that of
a reasonable decision-maker.
The test entails conducting an enquiry into whether the decision of
the commissioner is one
which a reasonable decision-maker could not
have reached. In other words the decision of the commissioner
would be reasonable
and immune from interference by the Court if it
is one which a reasonable decision-maker could have reached.
The function
of the Court in this regard is not to determine the
correctness of the decision but its reasonableness.
[28]
In enunciating further on the reasonable
decision-maker test set out in Sidumo, Labour Appeal Court went
further to caution in
Fidelity Cash
Management Service v Commissioner for Conciliation Mediation and
Arbitration 2008 (29) ILJ 964 (LAC)
at
paragraph 98 to 100 as follows:
“
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA commissioner,
the
Court feels that it would have arrived at a different decision or
finding to that reached by the commissioner. When that
happens,
the Court will need to remind itself that the task of determining
fairness or otherwise of such a dismissal is in terms
of the Act
primarily given to the commissioner and that the system would never
work if the court would interfere with every decision
or arbitration
award of the CCMA simply because it, that is the court, would have
dealt with the matter differently. Obviously,
this does not in
any way mean that decisions or arbitration awards of the CCMA are
shielded from the legitimate scrutiny of the
Labour Court on review.
In my view Sidumo
attempts to strike a balance between, two extremes, namely, between,
on the other hand, interfering too much or
two easily with decisions
or arbitration awards of the CCMA and, on the other refraining too
much from interfering with CCMA’s
awards or
decisions.
That
is not a balance that is easy to strike the aforesaid said balance,
it may be said that, while on the one hand, Sidumo does
not allow
that a CCMA arbitration award or decision be set aside said simply
because the Court would have arrived at a different
decision to that
of the commissioner, it also does not require that a CCMA’s
commissioner’s arbitration award or decision
be grossly
unreasonable before it can be interfered with on review- it only
requires it to be unreasonable. This demonstrates
the balance
that is sought to be made. The court will need to remind itself
that it is dealing with the matter on review
and the test on review
is not whether or not the dismissal is fair or unfair but whether or
not the commissioner’s decision
one way or another is not that
a reasonable decision-maker could not reach in all of the
circumstances. The test enunciated
by the Constitutional Court in
Sidumo for determining whether a decision or arbitration award of a
CCMA commissioner is reasonable,
is a stringent test that will ensure
that such awards are not lightly interfered with. It will ensure
that, more than before, and
in line with the objective of the Act and
particular the primary objective of the effective resolution of
disputes, awards of the
CCMA will be final and binding as long as it
cannot be said that such a decision or award is one that a reasonable
decision-maker
could not have made in the circumstances of the case.
It will not be often that an arbitration award is found to be one
which a
reasonable decision-maker could not have made but I also do
not think that it will be rare that an arbitration award of the CCMA
is found to be one that a reasonable decision-maker could not, in all
the circumstances, have reached”.
[29]
An award would be unreasonable when there
is a glaring discrepancy between the evidence presented and the
conclusion reached by
the commissioner. In other words an award
would be unreasonable if the commissioner completely misconstrued the
evidence
before him or her.
[30]
In my view, in the present instance, the
award of the commissioner is reasonable because he considered and
applied his mind to the
evidence and other material which were placed
before him. However I did agonise about whether indeed the employee
was guilty of
insubordination or poor performance. I had to caution
myself that my function was that of determining the reasonableness of
the
award and not its correctness. It may well be that court may have
found the decision of the commissioner to be incorrect had it
been
enjoined to do so.
[31]
The award would however, still stands even
if it was found that the commissioner’s decision in as far as
insubordination is
concerned is unsustainable. The award would
stand on the finding of gross negligence.
[32]
It is on the basis of the above reasons
that I concluded that the review application stands to dismissed. The
dictates of law and
fairness do not call for costs to be issued in
this case.
[33]
The Order
1.
The review application is dismissed.
2.
There is no ordered as to costs.
____________
Molahlehi
J
Date
of Hearing: 30 May 2008
Date
of Judgement: 22 July 2008
APPEARANCES
For
the Applicant: ADV W HUTCHINSON
Instructed
by: LEBEA & ASSOCIATES
For
the Respondent: ADV T MOTAU
Instructed
by: THSIGI ZEBEDIELA INC