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[2009] ZALCJHB 35
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Landsec and Another v Commission for Conciliation Mediation And Arbitration and Others (JR819/07) [2009] ZALCJHB 35 (29 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR 819/07
In
the matter between:
LANDSEC
1
ST
APPLICANT
TORONTO
HOUSE
CC
2
ND
APPLICANT
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
1
ST
RESPONDENT
COMMISSIONER
BONGE MASOT N.O.
2
ND
RESPONDENT
THEOPHILUS
NDIMANDE
3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review and set
aside the arbitration award of the Second Respondent (the
Commissioner) made under case
number GAJB 30277-05, dated 26
th
March 2007. In terms of that arbitration award the Commissioner found
that the dismissal of the Third Respondent, Mr Ndimande (the
employee) to be both procedurally and substantively unfair and
ordered both his reinstatement and compensation.
[2]
On the 29
th
day of July 2008, this Court made an order which is quoted at the end
of this judgment. The reasons for the order are set out hereunder.
Backgrounds facts
[3]
The employee commenced his employment with
the applicants during February 2005 as a caretaker of the building
“Toronto House”.
The employee was charged with poor work
performance and having a bad attitude towards his work. The
disciplinary enquiry which
was chaired by a person who was not in the
employ of the applicants found the employee guilty and ordered his
dismissal during
November 2005.
[4]
The applicants called two witnesses, namely
Mr Ndlovu (“Ndlovu”), the security manager of “Burglar
Remedy”,
the building’s appointed security company and Mr
Mkhize (“Mkhize”), a member of the building’s
residents’
committee.
[5]
Ndlovu testified that the employee allowed
his relatives to live in a room in the basement area of the building.
Allowing relatives
to stay in the basement, according to Ndlovu,
posed a security problem for the security guards who had found it
difficult to maintain
order in that area of the building and every
time they (security guards) raised this issue they were overruled by
the employee.
Ndlovu also testified about the employee having allowed
16 (sixteen) individuals to stay in a room, in the building.
[6]
It was also Ndlovu’s testimony that
he believed that the employee did not reside on the premises as
required by his contract
and that he falsely declared that the woman
he was staying with was his wife. He believed that the employee had
merely rented the
room to the woman he claimed was his wife.
[7]
Because of the employee not staying in the
building there was nobody, according to Ndlovu, to complain to
whenever the residence
had problems. In the same vein, Ndlovu
testified that various tenants had laid complaints about the employee
not being willing
to assist them when requested to do so in his role
as caretaker.
[8]
The other part of Ndlovu’s testimony
upon which the applicants relied on in dismissing the employee
concerns the allegation
that the employee had been seen drinking
alcohol and causing a nuisance at the front gate of the premises,
which he did in front
of the security guards.
[9]
The dismissal was also based on the
testimony of Ndlovu that the employee had failed to circulate
information flyers to the tenants,
which was supposed to have
notified the tenants about the rat poison, which had been place in
the building. The flyers were according
to him found in the dustbin.
[10]
The employee denied all the allegations
levelled against him and in particular called on Ndlovu to show where
the computer system
reflected that he was regularly leaving the
building at night.
[11]
Mkhize testified that the residents
committee had received poor service from the employee in that the
building was dirty. The cleaners
could not enter the building
according to him because the employee had failed to open the security
access gate to allow the cleaners
entry into the building. The other
reason for the alleged poor performance was based on the accusation
that the employee failed
to patrol and identify problems in the
building.
[12]
The employee denied the allegations made by
Mkhize and testified that the woman with he was staying with in the
building was his
girlfriend and that is the reason she was not using
his surname.
The arbitration
award and the grounds of review
[13]
As indicated earlier the Commissioner found
the dismissal of the employee to have been both substantively and
procedurally unfair
and ordered the applicants to pay the employee an
“
arrear amount of R36,000.00
(thirty-six thousands rand) as compensation, and further ordered the
applicants to reinstate the employee
from date of dismissal 17
November 2005.”
[14]
The Commissioner in arriving at the
conclusion that the dismissal was substantively and procedurally
unfair reasoned that the charges
as formulated by the applicants were
badly formulated in that they refer to acts of capacity as opposed to
misconduct. In this
respect the Commissioner found that the evidence
presented by the applicants pointed to a case of incapacity rather
than that of
misconduct.
[15]
The Commissioner further found that even
though the employee was charged with poor work performance and a bad
attitude towards his
work the dismissal was based on other
allegations, unrelated to these charges or were not brought to his
attention prior to disciplinary
hearing. The allegations relate to
the accusations that the employee consumed alcohol while on duty,
sublet rooms in the building,
provided illegal immigrants and persons
who were not allowed into the building to be there, accommodating
people in the basement
for financial gain, failed to distribute
pamphlets warning tenants about the presence of rat poison, failed to
attend to tenants
complaints, and sublet his room to another person.
[16]
The Commissioner found the dismissal to
have been unfair because the applicants had charged the employee with
poor work performance
and thereafter lead evidence relating to
misconduct and dismissed him for that reason.
[17]
In their founding affidavit the applicants
contended that the Commissioner’s decision was reviewable in
that he:
(a)
failed to apply his mind to the matter;
(b)
was biased towards the third respondent in his findings;
(c)
misconduct himself in relation to his duties as commissioner;
(d)
committed a gross irregularity in his conduct of the proceedings;
and/or
(e)
exceeded his powers by acting unreasonably and unjustifiably under
the circumstances.
[18]
The applicants also criticized the
Commissioner’s award for being vague and embarrassing, in that
on the face of it, it lacked
clarity in that it ostensibly ordered
the applicants to pay the employee 12 (twelve) months salary as
compensation and a further
16 (sixteen) months salary as a back-pay.
The monetary value of the order amounted to 28 (twenty-eight) months
salary, i.e R84,
000.00, which amount is according to the applicants,
highly excessive under the circumstances and fell outside the
jurisdictional
ambit of the CCMA. In addition, the compensation made
was criticized for being excessive in contravention of the provisions
of
section 194 (1) of the Labour Relations Act 66 of 1995 (the LRA),
in that the compensation was not “
just
and equitable in all the circumstances”
.
This criticism was raised in the context of the employee having been
in the employ of the applicants for only 9 (nine) months
at the time
of his dismissal.
[19]
As concerning the order of reinstatement
the applicants contended that the Commissioner, failed to take into
account the fact that
the reinstatement was not reasonably
practicable and accordingly failed to comply with the provisions of
section 193(1) of the
LRA.
[20]
The award is further attacked on the
grounds that the Commissioner:
(a)
erred in finding that the charges referred
to acts of capacity as opposed to acts of misconduct.
(b)
erred in concluding that the charges were
“
badly formulated”
and ignored the testimony of the employee that he did approach the
applicants as soon as he received the notice to attend a disciplinary
hearing and sought an explanation on the charges.
(c)
failed to properly apply his mind to this
matter in that he failed to apply the code of good practice in
respect of dismissals for
poor work performance in that he should
have considered whether or not the employee failed to meet a
performance standard and if
so, whether he was aware or reasonably
should have been aware of the performance standard, and further,
whether he (the employee)
was given a fair opportunity to meet the
required performance standard.
(d)
unjustifiably erred and/or incorrectly
found and/or committed a gross irregularity in that he accorded undue
weight to the uncorroborated
evidence of the employee being a single
witness.
(e)
grossly misconducted himself in arriving at
the conclusion as he did without applying his mind.
(f)
erred in his failure to accord the
necessary weight to the evidence of the applicants’ witnesses .
Evaluation of the
award
[21]
In considering whether the dismissal of an
employee is fair or otherwise the first inquiry is to identify the
reason for the dismissal.
The duty to establish the reason for the
dismissal rests with the employer. It is the employer who has to show
why in fact the
employee was dismissed. In order to succeed in
showing that the dismissal was fair the employer has, in terms of
section 188 of
the LRA to prove:
“
(1)
A dismissal that is not automatically unfair, is unfair if the
employer fails to prove-
(a)
that the reason for dismissal is a fair reason-
(i)
related to the employee’s conduct or capacity; or
(ii)
based on the employer’s operational requirements; and
(b)
that the dismissal was effected in accordance with a fair procedure.
(2)
Any person considering whether or not the reason for dismissal is a
fair reason or whether or not the
dismissal was effected in
accordance with a fair procedure must take into account any relevant
code of good practice issued in
terms of this Act.”
[22]
In considering whether or not the reason
for the dismissal is a fair reason the Court and Commissioners are
required to take into
account the Code of Good Practice. Item 9 of
Schedule 8 of the Code of Good Practice provides:
“
Any
person determining whether a dismissal for poor work performance is
unfair should consider-
(a)
whether or not the employee failed to meet a performance standard;
and
(b)
if the employee did not meet a required performance standard, whether
or not-
(i)
the employee was aware or could reasonably be expected to have bee
aware, of the required performance
standard;
(ii)
the employee was given a fair opportunity to meet the required
performance standard; and
(iii)
dismissal was an appropriate sanction for not meeting the required
performance standard.”
[23]
In general, a reason for dismissal consists
of facts which are at the time the decision to dismiss is taken are
known to the employer.
It follows therefore that the reason for
dismissal must be the one in existence at the time the employee is
notified, of his or
her dismissal. Another fundamental and key
principle relating to fairness in dismissal cases is that the reason
for the dismissal
must be related or based on the charges which were
proferred against the employee for which he or she (the employee) had
a fair
opportunity to respond to and to challenge.
[24]
The facts to be taken into account in
considering the fairness of a dismissal in a case involving
misconduct are set out in item
7 o f the Code of Good Practice as
follows:
“
Any
person who is determining whether a dismissal for misconduct is
unfair should consider-
(a)
whether or not the employee contravened a rule or standard regulating
conduct in, or of relevance to,
the workplace; and …”
[25]
It is trite that in dismissal cases the
burden to prove that the employee was guilty of misconduct rests with
the employer and failure
to discharge it, renders the dismissal
unfair. In discharging its burden the employer has to show that the
employee breached an
existing rule which he or she knows about or
could reasonably be expected to have known of its existence.
[26]
I have already indicated that the
Commissioner found the dismissal of the employee to be both
procedurally and substantively unfair.
In dealing with procedural
fairness of the dismissal, in the present instance the Commissioner,
found that the charges proferred
against the employee related to
capacity and not conduct. In other words the unfairness arose from
the incorrect procedure chosen
by the applicant. As appears from the
above quotation the procedure to follows in both cases of misconduct
and incapacity are distinctly
different. Thus the Commissioner was
correct in that the use of the incorrect procedure resulted in the
dismissal being procedurally
unfair. The requirements and the
evidence to be adduced to show that the dismissal for misconduct was
procedurally fair is different
to what has to be shown in the case of
dismissal for incapacity.
[27]
The reasoning of the Commissioner in
relation to the substantive fairness of the dismissal is that it was:
“…
totally
unfair that the first respondent charged the applicant with poor work
performance, and thereafter led evidence on the allegation
of
misconduct, and dismissed him for that.”
[28]
In my view, the Commissioner’s
reasoning and analysis cannot be faulted. The commissioner’s
conclusion is supported
by the reasoning in the award and those that
appears on the record. The notice that was sent to the employee
stated:
“
You
committed misconduct as follows:
1. Poor work
performance.
2. Bad attitude
towards your work.”
[29]
The investigation which was conducted by Mr
Ndlovu, the manager of the applicant which led to the employee being
charged concludes
as follows:
“
It
is my conclusion therefore that the caretaker (Thio) has failed
dismally to manage Windsor Gardens. He should either be transferred
or be relieved of this position…
I sincerely regret my
recommendation of him to the position, he just cannot meet the
desired standard.”
[30]
In the founding affidavit the applicant
states:
“
[53]
The Commissioner failed to properly apply his mind to this matter in
that he failed to apply the code of good practice in respect
of
dismissals for poor work performance in that he should have
considered whether or not the Third Respondent failed to meet a
performance standard and if the Third Respondent did not meet the
performance standard, whether the Third Respondent was aware
or
reasonably should have been aware of the performance standard, and
further, whether the Third Respondent was given a fair opportunity
to
meet the required performance standard and whether the dismissal was
the appropriate sanction for not meeting the performance
standard.”
[31]
The letter of dismissal on the other hand
states that the reason for the dismissal was because the employee was
found guilty of
misconduct.
[32]
Applying the test in the
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC),
I am unable to fault the decision
of the Commissioner for unreasonableness. In my view the conclusion
arrived at on the facts of
the case by the Commissioner is one which
a reasonable decision-maker could have reached. It has to be
remembered that the function
of this Court seating on review is not
to determine the correctness of the Commissioner’s award, that
is the function of
the Court seating on appeal. See
Minister
of Justice and Another v Bosch and Others (2006) 27 ILJ 166 (LC).
[33]
I do accept the contention that the verdict
arrived by the Commissioner is inappropriate in the circumstances of
this case. The
Commissioner has not reasoned in his award how he
arrived at that conclusion. Whilst it is for this reason that I find
the award
reviewable, I do not believe that it would be appropriate
to set aside the award and refer the matter back to the CCMA for this
reason. There is enough information in the record to assist the Court
in correcting the relief granted by the Commissioner. Remitting
the
matter back to the CCMA would result in an unnecessary delay and the
Commissioner who is to consider the matter is likely to
come to the
same conclusion as the one which was reached by this Court in the
order it made on the 29
th
July 2008.
[34]
It was on the basis of the above discussion
that I made the following order:
“
1.
The arbitration award issued by the second respondent under case GAJB
30277-05 dated is reviewed and corrected
as follows:
(a)
Clauses 7.2 and 7.3 of the arbitration award are struck out;
(b)
Clauses 7.4 and 7.5 are substituted with the following award:
“
The
respondent Landsec Toronto House CC is ordered to reinstate the
applicant, Mr Ndimande, retrospectively to the position he held
before his dismissal or alternative position. The reinstatement shall
be without loss of income or any benefit.”
2.
The arbitration award is made an order of Court.
_______________
Molahlehi
J
Date
of Hearing :
29
th
July 2008
Date
of Judgment :
29
th
January 2009
Appearances
For
the Applicant :
Clifford Levin of Clifford Levin Attorneys
For
the Respondent: Wellington
Magwaza (Union Official)