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[2008] ZALCJHB 3
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Cash Paymaster Services Northwest (Pty) Ltd v Commission For Conciliation Mediation And Arbitration and Others (JR1609/06) [2008] ZALCJHB 3 (28 November 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: JR 1609/06
In
the matter between:
CASH
PAYMASTER SERVICES
NORTHWEST
(PTY) LTD
APPLICANT
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION 1
ST
RESPONDENT
BUYELWA
VIVIENNE TLHAPI N.O.
2
ND
RESPONDENT
COENRAAD
JOHANNES LAMPRECHT
3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review and set
aside the award of the second respondent (the commissioner) under
case number NW3703/05
and dated 13 June 2006. In terms of the
arbitration award the commissioner found that the dismissal of the
third respondent (the
respondent) for misconduct was too harsh.
Background facts
[2]
The respondent who was employed by the
applicant on a fixed term contract as a support supervisor at the
Vryburg branch was charged
and disciplined with a number of offences.
The respondent pleaded guilty to charges 3 (three) and 4 (four) and
was found guilty
by the chairperson of the disciplinary hearing for
charges 1 (one) and 2 (two).
[3]
The first charge related to failure to obey
instructions in that the respondent was alleged to have failed to
submit a compact disc
with assignments in it. The second charge which
is related to the charge 1 (one) concerns the allegation that the
respondent submitted
a compact disc with the full knowledge that it
did not contain any of the assignments.
[4]
Mr Van der Merwe, technical manager for the
Northwest branch of the applicant, testified that the respondent was
one of the trainees
who attended a management course which was
conducted by Miss Sukhdeo, the training manager. According to her the
trainee employees
were required at the completion of the course to
submit assignments which had to be copied into a compact disc.
[5]
After submitting his disc which purportedly
contained the assignment, the respondent was informed that it was
blank. The respondent
then indicated that the problem may have arisen
from the applicant’s computers and then undertook to copy the
information
on to the disc through his home computer. He also
promised to email the assignment to the training manager. The
respondent failed
to carry out these undertakings.
[6]
After being requested to intervene and
assist by the training manager, Mr Van der Merwe enquired from the
respondent whether he
has in deed done the assignments. The
respondent insisted that he had completed the assignment.
[7]
Immediately after this conversation with Mr
Van der Merwe where he insisted that he had done the assignment, the
respondent contacted
another employee, Mr Bonzaaier and requested a
copy of his assignment. When Bonzaaier refused to avail his
assignment to him the
respondent approached another employee Mr
Boshoff with the same request.
[8]
During the arbitration hearing Mr Van der
Merwe testified that he could no longer trust the respondent because
of the incident involving
submission of his assignment.
Review and award
[9]
The grounds for review upon which the
applicant relies on are set out in the founding affidavit as follows:
“
9.1
Failed to apply her mind to the evidence led at the arbitration
proceedings;
9.2
Exceeded her powers confined by the Act;
9.3
Committed a gross irregularity in the conduct of the proceedings;
9.4
Reached unjustified and irrational conclusion.”
[10]
In her award the commissioner found the
respondent guilty of charges 2 (two), 3 (three) and 4 (four). She
found him not guilty of
charge 1 (one). In finding the respondent not
guilty of charge 1 (one) the commissioner reasoned that there was no
evidence both
at the disciplinary hearing and during the arbitration
proceedings that failure by the respondent to execute a legitimate
and fair
instruction was deliberate or intentional.
[11]
In finding that that the sanction of
dismissal was inappropriate in the circumstances of this case the
commissioner reasoned as
follows:
“
In
as much as I have found that the Applicant’s conduct was
dishonest I do not find that it is of such a serious nature that
it
is deemed to have affected the trust relationship between him and the
Respondent beyond repair. Whilst I may not prescribe to
the
Respondent the type of sanctions to give to employees I believe that
the procedures should act as a guideline as correctly
submitted by Mr
Grudlingh, in this instance the Applicant was untruthful in handing
in an assignment, which related to a training
programme organised by
the Respondent. He should have been put on terms and advised of the
consequences of him not fulfilling the
training modules designed for
his advancement. It is unfortunate that this was clouded with him not
opening the [deport] timeously.
An appropriate sanction would be a
written warning.”
[12]
In essence the commissioner’s finding
is that the offence for which the respondent was found guilty of was
not serious enough
to warrant a dismissal. There are several
authorities to support this view, namely that it is not every act of
dishonesty that
will lead to automatic dismissal. In
Toyota
SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC)
,
the Court found that it is not an invariable rule that offences
involving dishonesty necessarily attract the sanction of dismissal.
The Court went further in that case and held that:
“
I
am saying that there can be no sufficient mitigating factors in cases
of dishonesty …”
[13]
The Court then qualified the above
statement by indicating that it was not saying that dismissal would
always be appropriate in
cases of dishonesty. However, where the
dishonesty is found to be gross it is almost given that the dismissal
should follow. See
also
De
Beers Consolidated Mines Ltd v
Commission Conciliation, Mediation and Arbitration & (2000) 21
ILJ 1051 (LAC)
,
Toyota
SA Manufacturing (Pty) Ltd v Radebe & Others (1998) 19 ILJ 1610
(LC)
,
Standard
Bank of SA Ltd v Commission for Conciliation, Mediation and
Arbitration (1998) 19 ILJ 903 (LC)
, and
Orange Toyota (Kimberly) v Van der Walt
& Others (2000) 21 ILJ 2294 (LC)
.
[14]
In relation to the above approach the
central question in the present instance does not relate to the
substance of the offence,
the commissioner having found the respond
guilty of the offence, but whether the commissioner performed her
duties properly in
the assessment of the fairness of the dismissal.
[15]
The approach to be adopted by commissioners
in performing their duties of assessing whether or not the sanction
of dismissal in
the circumstances of a given case is fair, was stated
in
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Other
2008 (2) SA 24
(CC)
as follows:
“
[75]
…Ultimately, the commissioner’s sense of fairness is
what must prevail and not the employer’s view.”
[16]
The Labour Appeal Court in the case of
Fidelity Cash Management Service v CCMA
& Others
(2008) 3 BLLR 197
(LAC)
,
in confirming the above approach adopted in
Sidumo
held that:
“…
When
a commissioner of the CCMA is called upon to decide whether dismissal
as a sanction is fair in a particular case he or she
must not apply
the reasonable employer test, must not in any way differ to the
employer and must decide at issue on the basis of
his or her sense of
fairness.”
[17]
On the facts of the present case I see no
reason why this Court should interfere with the conclusion reached by
commissioner in
as far as the finding that the sanction was too
harsh, regard being had to the fact that in arriving at this
conclusion the
commissioner applied her mind and based her decision
on her sense of fairness. It is apparent from the reading of the
award that
the commissioner in arriving at her decision took into
account the seriousness of the failure by respondent to submit his
assignment.
This in her view did not affect the core of the trust
relationship between the parties. The same seem to apply to the other
charges
where the commissioner directed that warnings be issued
against the respondent rather than a dismissal.
[18]
I know proceed to deal with the nature of
the contract of employment.
[19]
It is common cause that the respondent was
employed on a fixed term contract which was about to expire at the
time of the arbitration
hearing. It is not disputed that the
commissioner had sight of the contract of employment during the
arbitration hearing. However,
despite having seen the contract of
employment which at the time of the award was one month away from
expiry the commissioner ordered
the reinstatement of the respondent.
[20]
In my view argument of Mr Balanco for the
respondent that the decision of the commissioner was reasonable
because there was legitimate
expectation that the contract would be
extended is unsustainable.
[21]
The issue concerning legitimate expectation
is dealt with in terms of section 186(1)(b) of the Labour Relations
Act 66 of 1995 (the
Act) which read as follows:
“
(1)
“dismissal” means that -
(a)
…
(b)
employee reasonably expected the
employer to renew a fixed term contract of employment on the same or
similar terms but the employer
offered to renew it on less favourable
terms or did not renew it:”
[22]
There was no claim in the applicant’s
referral of the dispute to the CCMA for conciliation or his evidence
at the arbitration
proceedings that he had a legitimate expectation
for the renewal of the contract of employment which as stated earlier
was about
to expire at that time.
[23]
In the light of this the commissioner had a
duty to establish the nature of the contract and its terms in
considering the appropriate
remedy. It is clear that the commissioner
failed to apply her mind in this regard and accordingly committed a
gross irregularity
by ordering reinstatement of the respondent and
thereby extended the contract of employment beyond the terms agreed
to by the parties.
The commissioner in extending the contract through
ordering the reinstatement of the respondent exercised powers she did
not have
and accordingly committed a gross irregularity.
Conclusion
[24]
In my view there is no basis upon which
this Court can fault the commissioner in arriving at the conclusion
that the sanction of
dismissal was unfair. However, the powers and
authority of the commissioner in the circumstances of the present
case was limited
to the terms of the contract of employment agreed to
by the parties. By extending the contract of employment beyond the
fixed term
agreed to by the parties, the commissioner exceeded her
powers.
[25]
In the circumstances the commissioner’s
award stands to be reviewed to the extent that she exceeded her
powers by extending
the terms of the fixed term contract beyond the
period described in the employment contract. It would not in the
circumstances
of this case be fair to allow the costs to follow the
results.
[26]
In the premises I make the following order.
(i)
Arbitration award of the commissioner
issued under case number NW3703/05 is reviewed and corrected as
follows:
“
The
respondent is ordered to compensate the applicant Mr Coenraad
Johannes Lamprecht, in the amount equivalent to the unexpired
portion
of the fixed term contract.”
(ii)
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
17
th
June 2008
Date
of Judgment :
28
th
November 2008
Appearances
For
the Applicant :
Adv W J Hutchinson
Instructed
by :
Fluxmans Incorporated
For
the Respondent: Adv Balanco
Instructed
by :
Thompson Attorneys