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[2008] ZALCD 8
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Rennies Distribution Services (Pty) Ltd v Bierman NO and Others (D875/06) [2008] ZALCD 8 (5 March 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT DURBAN)
Case
No: D875/06
In
the matter between:
RENNIES
DISTRIBUTION SERVICES (PTY)
LTD
APPLICANT
AND
DIETER
BIERMAN
N.O.
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
2
ND
RESPONDENT
SEWANARTHAN
GOVENDER
3
RD
RESPONDENT
JUDGMENT
AC
BASSON, J
[1]
This is an application for the review of an arbitration award issued
by the First Respondent (hereinafter referred to as “the
Commissioner”) in terms of which the dismissal of the Third
Respondent (hereinafter referred to as “Govender”)
was
found to be substantively unfair but procedurally fair. Govender was
awarded compensation in the amount of R 76 717.12 which
is equal to 8
months’ salary. The Applicant filed an application to review
and set aside the award by the Commissioner and
for an order
substituting the Commissioner’s award with an order that the
dismissal of Govender was substantively and procedurally
fair.
Brief
Background
[2]
The Applicant - Rennies Distribution Services (Pty) Ltd (hereinafter
referred to as “
the Applicant”
or “
the
Employer”
) carries on the business of a warehouser and
distributor of goods.
[3]
The business of the Applicant operates on a 24 hour basis and
employees are required to work on a shift basis as determined
by
their employer. Govender was employed as a superintendent at the
Applicant’s warehouse in Gauteng. This position is a
responsible position and is at junior management level.
[4]
It is common cause that Govender had stayed away from work on 21 and
22 August 2006 and that he was also again absent on 6 September
2006.
On 21 August 2002 Govender was served with a written memorandum
urging him to use his sick leave sparingly and only when
it was
really necessary. In this memorandum Govender was also cautioned that
he had already taken up 29 of his sick leave allocation.
The
memorandum also points out that an employee must notify the company
of any anticipated absence before 12H00 on the day an absence
occurs.
In addition hereto Govender was also formally counseled in respect of
the sick leave policy. Govender acknowledged that
he understood the
procedure and stated that he will not stay away unnecessarily and
only when he was really sick. During the period
March 2006 to 18
August 2006 Govender took thirteen days sick leave.
Disciplinary
charge
[5]
On 7 September 2006 Ms Tracey Mcleod (of the Applicant) instituted
the following disciplinary charges against Govender. Govender
was
instructed to appear before a disciplinary hearing on 11 September
2006:
(i)
Unauthorized absence from work for three days: Monday 21 August
2006,
Tuesday 22 August 2006 and Wednesday 6 September 2006.
(ii)
Gross insolence in that he had changed the current compressed shift
system
to a purely day and night shift operation without
authorization from management. It was the evidence on behalf of the
Applicant
that a major company was then unable to deliver goods to
the Applicant’s warehouse as a result of this change.
[6]
The chairperson found Govender guilty and imposed the penalty of a
final written warning
valid for 12 months.
[7]
It is important to point out what the Applicant’s disciplinary
code provides. It reads as follows:
“
1.10
Unauthorised and/or uncommunicated absenteeism where such absence is
longer than three (3) successive working days, unless
the employee
offers a reasonable and legitimate excuse for his absence, the onus
in this case being on the employee to justify
his unauthorized and/or
uncommunicated absence”
The
proposed action in respect of a first offence is indicated as
“
dismissal
”. It shoud be pounted out that it
was common cause that Govender was
not
absent for three
successive working days.
Appeal
[8]
It is common cause that Govender then appealed against the decision
made by the chairperson. After the appeal hearing the chairperson
(of
the appeal hearing) changed the penalty of a final written warning in
respect of the first charge and substituted it with a
penalty of a
dismissal
. In respect of the second charge the chairperson
confirmed the penalty of a final written warning. In the founding
affidavit is
it stated that the appeal hearing amounted to a
re-hearing. A reading of the transcript of the appeal hearing does
not, however,
indicate that Govender was warned that the chairperson
may impose a harsher penalty nor is it the Applicant’s
contention
in the papers that the disciplinary code allowd for the
imposition of a harsher sanction on appeal. It was also not the case
for
the Applicant that Govender was or should have been aware that
should he appeal against the findings of the disciplinary hearing
that there is a possibility that the chairperson of the appeal
hearing may impose a harsher sanction. I have also perused the
transcript of the appeal hearing and it does not appear from the
transcript that the chairperson had warned Govender that the appeal
hearing was a re-hearing of the charges and that he may impose a
harsher sanction. I will return to this aspect herein below.
The
Award
[9]
It is not necessary to give a recount of the evidence that was led
before the Commissioner. Suffice to point out that the Commissioner
evaluated in some detail the evidence that was led by the witnesses.
Because Govender was dismissed (by the chairperson of the
appel
hearing) in respect of charge 1 only, the Commissioner found it not
necessary to deal with the second charge in respect of
the changing
of the shift system. In respect of the first charge, the Commissioner
noted the Respondent’s submission that
the Applicant had a
severe history of staying away from work. The Commissioner also noted
Govender’s evidence to the effect
that he had not exceeded his
sick leave and that he was last reprimanded in 2002. The
Commissioner, however, rejected Govender’s
evidence that he had
tried to contract the terminal manager to inform her that he was ill
on 21 August 2006 but that he was unable
to do so as he experienced
problems with his cell phone battery.
Evidence
in respect of dishonesty
[10]
It is common cause that the Applicant had led evidence during the
arbitration hearing to the effect that Govender was dishonest
when he
had requested a receptionist (a certain Ms Narain) to lie to
Govender’s manager. The evidence was that Govender had
requested Narain to tell the manager that his (Govender’s) wife
had called the switchboard on 6 September 2006 and that she
had
requested Govender to come home because she felt ill. During the
arbitration the receptionist Narain for the first time gave
evidence
that Govender’s wife had never phoned the switchboard and that
she was asked to lie by Govender.
[11]
With regard to the evidence in respect of dishonesty, the
Commissioner found that there was clear evidence of dishonesty
on the
part of Govender in that he,
inter alia
, tried to persuade the
Applicant’s receptionist to lie on his behalf by fabricating an
excuse for his absence in September.
The Commissioner also found that
his dishonesty had caused a serious breach of the employment
relationship. The Commissioner, however,
emphasised that Govender
was, not charged with dishonesty and that he was only charged with
misconduct in respect of unauthorized
leave and within changing the
shift system. The Commissioner therefore disregarded the evidence in
respect of the dishonesty and
concluded that if the Applicant had
wished to rely on his dishonest conduct relating to his absence, the
Applicant should have
charged him with dishonesty and should have
afforded him an opportunity to state his case in respect of a charge
of dishonesty.
[12]
Is this an unreasonable conclusion? Put differently, is an employer
allowed to introduce new evidence in respect of, for example
a charge
of dishonesty, in circumstances where an employee was not initially
charged with dishonesty and therefore not dismissed
by his or her
employer on a charge of dishonesty? In the present case the
Commissioner decided not to place any reliance on the
further
evidence in respect of the dishonesty allegations and decided that he
will only considered whether or not it was fair to
have dismissed
Govender for absence without permission (the original charge).
Review
test
[13]
Before I turn to the merits of this review application, a few
preliminary remarks should be made in respect of review applications
in general. The Constitutional Court in
Sidumo & Another v
Rusternburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405
(CC) sets out the test of review in respect of review applications in
terms of section 145 of the LRA as that
of a “
reasonable
decision maker
”. The question that must therefore be asked
by the review court is whether or not a reasonable decision-maker
could reach
the decision that the Commissioner has arrived at. The
question is therefore not whether or not this court agrees with the
decision,
but whether it is one that a reasonable decision could
reach. It is important to emphasis that the question is not whether
this
court would have come to a different conclusion. In
Fidelity
Cash Management Services v CCMA & Others
[2008] JOL 21211
(LAC);
2008 (2) BLLR 197
(LAC) the Court said the following in
respect of reviews:
“
[98]
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 the 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.
[99]
In my view Sidumo attempts to strike a balance between, two extremes,
namely, between, on the
one 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.
Indeed, articulating
it may be difficult in itself but applying it in
a particular case may tend to even be more difficult. In support of
the statement
that Sidumo seeks to strike the aforesaid balance, it
may be said that, while on the one hand, Sidumo does not allow that a
CCMA
arbitration award or decision be set 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 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 one that a reasonable decision-maker
could not reach in all of the circumstances.
[100]
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 objectives of the Act and
particularly 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.
[14]
With this test in mind, the decision reached by the Commissioner will
now briefly be considered. I will first consider whether
it was
reasonable to have disregarded the evidence in respect of Govender’s
dishonesty. Thereafter I will briefly consider
whether the conclusion
that the dismissal was substantively unfair in light of the fact that
the company had acted contrary to
its own disciplinary code in
respect of the absenteeism charge, is one which a reasonable decision
maker could not have arrived
at.
Evidence
in respect of dishonesty
[15]
I am of the view that the Commissioner’s conclusion that
it is unfair to find an employee guilty of dishonestly when he was
never charged with dishonesty, is not unreasonable particularly in
light of the fact that the disciplinary code allows for a charge
of
dishonesty - and rightly so – to be instituted against an
employee suspected of dishonesty. An employer has the right
to expect
a high standard of honesty and loyalty from an employee and an
employee who commits an act of dishonesty may be charged
and may, if
found guilty, be dismissed. However, where an employer does not
charge an employee with dishonesty it cannot seek to
introduce a new
charge or a different charge at the arbitration hearing. I have
already pointed out that Govender was not charged
with dishonestly
despite the fact that the receptionist had sent an e-mail to Mcleod
on 8 September 2006 informing management of
the fact that Govender
had told her to tell a lie about having phoned the switchboard. On 11
September 2006 (the very day upon
which the disciplinary hearing had
commenced) Mcleod had asked the receptionist to clarify her
allegations. It is common cause
that Narain did so on that very same
day. Govender’s disciplinary hearing commenced on 11 September
2006. The Applicant cannot
therefore argued that it was not aware of
the dishonest act. The Applicant had ample opportunity to
charge Govender with
dishonesty but had failed to do so. What makes
matters worse for the Applicant is the fact that Mcleaod was the
initiator at Govender’s
disciplinary hearing. In fact she had
given the charges to Govender on 7 September 2006. She was also the
one who received the
e-mail a day after the charge sheet was handed
to Govender and she was the one who asked for a clarification of the
allegations
about Govender’s dishonesty. As already
pointed out, it cannot therefore be said that the Applicant was
unaware of
the complaint at the time of the disciplinary hearing.
This is clearly not a case where it can be said that the evidence
about
an act of dishonesty only came to the attention of the Employer
after
the employee was charged. What is also important to note
is the fact that Mcleod was also present as the initiator at the
appeal
hearing of Govender which was held on 21 September 2006. If
the Applicant’s contention is to be accepted that the appeal
hearing amounted to a re-hearing of the charges, then nothing would
have prevented the Applicant to have introduced further charges
against Govender even at that late stage. The Applicant, however,
elected not to do so. I can therefore find no basis upon which
to
conclude that the Commissioner’s finding or reasoning in
respect of the dishonesty allegation is unreasonable. It is certainly
not an unreasonable finding to the extent that a reasonable decision
maker could not have arrived at this conclusion. There is
also clear
authority to the effect that employers cannot justify a dismissal on
grounds other than those which formed part of the
initial decision to
dismiss an employee. See in this regard
Fidelity Cash Management
Services v CCMA & Others
(supra). In that case the
appellant
sought to justify the third respondent’s dismissal on alleged
acts of misconduct which did not form part of the
allegations of
misconduct of which he was found guilty in the disciplinary inquiry
and for which he was dismissed. The Court held
as follows:
“
[32]
It is an elementary principle of not only our labour law in this
country but also of labour law in many other countries that
the
fairness or otherwise of the dismissal of an employee must be
determined on the basis of the reasons for dismissal which the
employer gave at the time of the dismissal. The exception to this
general rule is where at the time of the dismissal the employer
gave
a particular reason as the reason for dismissal in order to hide the
true reason such as union membership. In such a case
the court or
tribunal dealing with the matter can decide the fairness or validity
of the dismissal not on the basis of the reason
that the employer
gave for the dismissal but on the basis of the true reason for
dismissal.
[63]
Much oral evidence was led on behalf of the appellant in the
arbitration proceedings in an attempt to show what the third
respondent did, what he did not do and what his duties which, he had
allegedly failed to fulfil on the day of the robbery. In so
far as
such evidence related to conduct which did not form part of the
allegations of misconduct for which the third respondent
was
dismissed, such evidence cannot help the appellant’s case in
the determination of the fairness or otherwise of the dismissal.
The
evidence had to relate to the reasons for dismissal. The oral
evidence that should have been led is evidence that could show
that
the third respondent was guilty of the allegations of misconduct for
which he was dismissed. However, I am of the opinion
that oral
evidence to prove that the duty under consideration was one of the
third respondent’s duties was inadmissible on
the basis that it
offended the parole evidence rule as the contract of employment
between the appellant and the third respondent
– which set out
the parties’ contractual duties – was in writing. Indeed,
it specifically provided that it was
the entire contract between the
parties.“
Absenteeism
[16]
Is the conclusion reached by the Commissioner that a dismissal is
substantively unfair in circumstances where an employee is
charged
with unauthorized absence from work for 3 consecutive days but the
facts show that he was merely absent for two consecutive
days,
unreasonable (see also paragraph [7]
supra
)? The Commissioner
concluded that the Applicant had acted contrary to its own
disciplinary code and that the dismissal was therefore
substantively
unfair. I am of the view that this is not an unreasonable conclusion.
One of the principles of a substantively fair
dismissal is that the
employee must have known or could reasonably be expected to have been
aware of a rule as well as of the sanction
which may be imposed in
the event of a breach of the rule. The rationale for this rule is
evident. In fairness, an employee must
know that a transgression of a
certain rule may lead to his dismissal even where the rule is
transgressed for the first time. This
creates certainty in the
workplace and also ensures the consistent and fair application of
discipline in the workplace. Knowledge
of a rule may be inferred from
the fact that there is a written disciplinary code (which may either
be imposed by the employer
or be the product of collective bargaining
and part of a collective agreement) or from the fact that the
employer had issued written
notices. The disciplinary code in the
present matter does not provide for the sanction of dismissal for
(unauthorized) absenteeism
for less than 3 consecutive days and it
would, in my view, be unfair for an employer to dismiss an employee
contrary to its own
disciplinary code particularly. In the context of
this review application it is, in my view, not unreasonable for the
Commissioner
to have concluded that an employer is expected to comply
with its own disciplinary code.
[17]
On behalf of the Applicant is was,
inter alia
, argued that the
disciplinary code only provides a guideline and that each case should
be taken into consideration. More in particular,
reference was made
to the following clause in the disciplinary code which clearly states
in respect of the “
proposed [disciplinary] action
”
that: “
The proposed action should not automatically be
imposed. The nature and circumstances of each individual case should
be taken into
consideration, prior to making a decision. Therefore,
the proposed code serves only as a guideline”.
I agree with
the Applicant’s submission to the extent that the Applicant’s
disciplinary code does not prescribe a rigid
application or
imposition of the proposed sanctions prescribed by the Code once an
act of misconduct has been committed and that
the code only serves as
a guideline. This clause is in accordance with fair labour practices
and general principles of fairness
which require that due
consideration should be given to all relevant considerations before a
sanction of dismissal (or for that
matter any other sanction) is
imposed. The imposition of a fair and appropriate sanction forms an
important component of the general
fairness requirement of a
dismissal and requires the chairperson to consider all factors,
including but not limited to, the nature
and circumstances of the
offence that was committed, the impact of the misconduct on the
workplace and any other relevant mitigating
circumstances before
imposing a sanction. The mere fact that the disciplinary code
prescribes, for example, the sanction of dismissal,
does not imply
that the chairperson should not consider a lesser sanction. The
Applicant’s disciplinary code does not provide
for a sanction
of dismissal where absenteeism is less than three consecutive days
and it would be unfair to allow an employer without
prior warning;
notice or consultation to dismiss an employees for such an offence
where the code itself only provides for the sanction
of dismissal
where the absenteeism is longer than three successive days.
[18]
In light of the afoaregoing I am of the view that the Commissioner’s
award is not unreasonable. In the event, the review
application is
dismissed with costs. I can find no reason in law and fairness why
costs should not follow the result.
Is
it fair to increase a sanction on appeal?
[19]
Although I am satisfied for the reasons set out in the aforegoing
paragraphs that the review should be dismissed, there is
one further
point raised in Govender’s papers and that relates to the fact
that the chairperson of the appeal hearing set
aside the final
written warning imposed by the chairperson of the disciplinary
hearing and replaced it with a harsher sanction
of dismissal.
The Commissioner did not rule on this point but I am of the view that
this is an additional important point upon
which the dismissal of
Govender was substantively unfair.
Broad
principles:
[20]
In criminal
cases a court of appeal has the right to interfere with a sanction
imposed by the court
a
quo
and
replace it with an appropriate sanction (provided that an appeal was
lodged against the sanction). The Court derives this power
from the
express provisions of section 322(6) of the Criminal Procedures Act
51 of 1977 which sets out the powers of the court
(sitting as a court
of appeal) in detail.
[1]
It would appear that a court on appeal has this power only because it
is specifically empowered by the legislature in terms of
section
322(6) of the Criminal Procedures Act.
[2]
[21]
It would, in my view, be unfair to allow a chairperson in an appeal
hearing (as part of a disciplinary process) to simply increase
a
disciplinary sanction except in circumstances where the disciplinary
code expressly allows for such a power.
[22]
Moreover,
notwithstanding the provisions of section 322(6) of the Criminal
Procedures Act which allows for the power to increase
the sanction,
courts on appeal are, in any event, reluctant to increase sanctions
on appeal in light of the prejudice that an accused
(in a criminal
case) may suffer as a result. Moreover, even where the court of
appeal may be open to the argument to increase the
sanction on
appeal, the affected accused must be afforded an opportunity to
present argument to the court of appeal to persuade
the court as to
why the sanction should not be increased.
[3]
The
audi
alteram partem
rule is thus fundamental even in circumstances where a court of
appeal (in a criminal case) has the right to increase a sanction.
A
similar rule, should, in my view, apply in cases where the
chairperson in an appeal hearing (as part of an employer’s
disciplinary procedures) is empowered to increase a sanction on
appeal. An employee should be warned that the chairperson is
contemplating
increasing the sanction imposed by the chairperson of
the disciplinary hearing and the employer should be granted the
opportunity
either to withdraw the appeal and accept the sanction
imposed by the disciplinary hearing or present argument to the appeal
hearing
why the sanction should not be increased.
[23]
I am, of course, mindful of the fact that a disciplinary enquiry
should not be equated with a criminal trail. The Court in
Avril
Elizabeth Home
for the Mentally Handicapped v CCMA &
Others
2006 (27)
ILJ
1644 (LC) correctly cautioned against
such approached. However, the rationale underlying the reasons why a
criminal court on appeal
should caution against increasing a sanction
is equally valid in respect of disciplinary enquiries. Just as the
court on appeal
should ensure that a sentenced individual receives a
just and fair trail, so must the Labour Court ensure that an employee
receives
a fair hearing (albeit less formalistic than a criminal
trial). There is some authority which supports the principle namely
that
a chairperson on appeal should not have an unfettered power to
increase a sanction except in circumstances where the disciplinary
code provides for such a power. See in this regard
UASA obo
Melville and SA Airways Technical (Pty) Ltd
(2002) 11 AMSSA
1.11.1 at paragraph 21 where the CCMA rejected the argument that a
chairperson on appeal has the right to
increase a sanction on appeal
in the absence of an express provision to that effect:
“
21.
A collective agreement is one legal constraint on the power of an
employer that obliges the employer not to act in conflict
with the
provisions of that agreement. Beyond those constraints, the employer
may act within a particular sphere subject to any
constraints imposed
by statute or the common law of employment.
22.
In discerning the extent of the powers of an appeal chairperson I
should, so it was argued by the employer, have regard to the
"common
law" relating to appeal enquiries. I am inclined to agree with
the respondent that one can have regard to those
incidental powers a
chairperson requires to perform the function of appeal hearing
chairperson. But I do not believe the very ambit
of that
chairperson’s decision making power in respect of the decision
appealed against can be established in this way. Moreover,
I was not
referred to any specific common law authority on this issue.”
[24]
In summary: Firstly, except where express provision is made for such
a power, a chairperson on appeal does not have the necessary
power to
consider imposing a harsher sanction. Secondly, even if it has such a
power the chairperson must adhere to the fundamental
principles of
natural justice which require that the
audi alteram partem
must be afforded to the employee who may be prejudiced by the
imposition of a more severe sanction.
The
order
[25] In the event the
following order is made:
1.
The application to review and set aside the award by the First
Respondent under case number GAJB21618-06 is
dismissed.
2.
The Applicant is ordered to pay the costs.
_______________________
AC
BASSON, J
Date
of hearing:
5 March 2008
Date
of judgement:
24 June 2008
For
the Applicant:
Adv M D Csmithers
Instructed
by:
Deneys Reitz Attorneys
For
the Respondent:
Dean Caro & Associates
[1]
“
(6)
The powers conferred by this section upon the court of appeal in
relation to the imposition of punishments, shall
include the power
to impose a punishment more severe than that imposed by the court
below or to impose another punishment in
lieu of or in addition to
such punishment.”
[2]
See: Hiemstra
Suid-Afrikaanse
Strafproses
6
th
edition page 899” “
Magte
van appèlhof – Wat ookal histories die posisie mag
gewees het, behoort daar nou eenstemmigheid te wees dat
die magte
van die hof van appèl beperk is tot wat in hierdie en
verwante artikels van hierdie wet voorgeskryf is (Sefatsa
and Others
v Attorney-General, Transvaal and Another 1989 (1) SA 821 (A).)”
[3]
See:
S
v Morgan and Others
(1993)
2 SACR 134
(A).