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[2009] ZALCJHB 41
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Eternity Health Care (Pty) Ltd t/a Eternity Private Health v Boyce NO and Others (JR707/08) [2009] ZALCJHB 41 (3 April 2009)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE
NUMBER: JR707/08
NOT
REPORTABLE
In
the matter between:
ETERNITY
HEALTH CARE (PTY) LTD
t/a
ETERNITY PRIVATE
HEALTH
Applicant
and
COMMISSIONER
TIMOTHY BOYCE
N.O.
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
LINDA
ELSEY
Third
Respondent
JUDGMENT
LE
ROUX AJ
:
1
This is a review application in terms of
section 145 of the Labour Relations Act, 66 of 1995 ("the Act").
The applicant
seeks to have an award made by the first respondent
reviewed and set aside. It also requests the Court to substitute the
award
with an order to the effect that the third respondent's
dismissal was substantively fair.
2
The facts in this matter are largely common
cause. The applicant is a medical aid scheme that provides certain
benefits to its members.
The third respondent, Linda Elsey ("Elsey"),
was employed by the applicant as a mental wellness manager. In this
capacity
she and other employees in her department were tasked with
loading certain information regarding members onto the applicant's
computer
systems.
3
On 14 August 2007 an incident took place
between Elsey and the applicant's financial manager, a Mr Lamb
("Lamb"). The
cause of the incident was the fact that
Lamb's wife, a member of the medical aid scheme, had not been
provided with a service that
she was entitled to from the applicant.
Lamb regarded Elsey as being responsible for this failure. Lamb had
then reported the matter
to the General Manager and the required work
was done. Despite being asked to apologise to Elsey, Lamb had refused
to do so.
4
On 31 August 2007 a Ms Kerr ("Kerr"),
Elsey's immediate line manager, entered Elsey's office and requested
her to load
certain information contained in a questionnaire
completed by Lamb's wife onto the system. Elsey refused to do so. Her
reason for
refusing to do so was that she felt that she was owed an
apology by Lamb for his conduct during the incident of 14 August
2007.
Kerr tried to persuade Elsey to do the work but she continued
to refuse to do so. Kerr requested her to do the work at least five
times. A few minutes later Elsey was requested to do the work by the
General Manager, Mr Nel ("Nel"). She again
refused
to do the work, despite being asked to do so on at least two
occasions. She asked Nel to leave her office. When he left,
she
slammed her office door after him.
5
As a result of the above incidents Elsey
was charged with gross insubordination, gross insolence and
dereliction of duty. She was
found guilty. The chairperson of the
enquiry decided that summary dismissal would be too harsh a sanction
and terminated her contract
by giving notice of termination.
6
Elsey referred an unfair dismissal dispute
to the CCMA. The subsequent arbitration proceedings were conducted by
the first respondent
("the commissioner"). It was common
cause at the arbitration that the applicant had committed acts of
misconduct. The
only issue before the commissioner was whether
dismissal had been the appropriate sanction to apply.
7
The commissioner started his consideration
of this question by pointing out that the Code of Good Practice:
Dismissal states that
it is generally not appropriate to dismiss an
employee for a first offence unless the offence is so serious as to
make continued
employment intolerable. Elsey had almost five years'
service with the applicant and had a clear disciplinary record. The
question
was therefore whether her misconduct was so serious as to
justify dismissal.
8
The commissioner found that Elsey was at
the end of her tether when she "snapped" on 31 August 2007.
She had been running
her department single handedly and performing
the jobs of three people. She had been working extremely hard for the
whole of August.
This intolerable situation, together with the
refusal of Lamb to apologise, had caused the employee to reach
breaking point. The
applicant had taken no steps to address this
intolerable situation. It was unfair to dismiss an employee who had
"imploded"
because of employer inaction.
9
The commissioner pointed out that the
fairness of a sanction of dismissal must
inevitably
entail a thorough consideration of all other sanctions to be imposed.
In this case the chairperson of the disciplinary
hearing had not
considered any lesser sanction. If she had done so she would have
come to the view that a less severe sanction
such as a final written
warning would have been a fair sanction. Save for the slamming of her
office door, Elsey's misconduct had
not been witnessed by any staff
other than Nel and Kerr. The commissioner came to the conclusion
that, on a "total conspectus
of the evidence" the sanction
of dismissal had been unfair. Elsey had not sought reinstatement and
the commissioner ordered
the payment of 3 months remuneration as
compensation for the unfair dismissal. The procedural fairness of the
dismissal had not
been in dispute.
10
In its founding affidavit the applicant
sets out a lengthy list of reasons why this award should be set
aside. These are supplemented
in the supplementary affidavit. Its
attack on the award is two-pronged. The first is encompassed in its
supplementary affidavit
where it is stated that the "fundamental
complaint" is that the commissioner subordinated the applicant's
right to determine
acceptable standards of behaviour by placing
unreasonable emphasis on peripheral matters such as the work pressure
placed on Elsey,
the fact that no staff had witnessed the misconduct
(with the exception of the slamming of the office door) and the
incident involving
Lamb some two weeks earlier.
11
Despite an initial reference to section 145
of the Act, the founding affidavit makes no attempt to link the
grounds for review to
any specific provision of this section. The
supplementary affidavit does refer to a gross irregularity. The
applicant's heads of
argument simply refer to the reasonableness test
formulated in
Sidumo and Another v
Rustenburg Platinum Mines and Others (2007) 28 ILJ 2405 (CC)
12
In my view the award does not have the
effect of undermining or limiting the right of the employer to set
the standards it requires
of employees in the workplace. The
commissioner accepts the reasonableness and
legitimacy of the rule against insolent or insubordinate conduct. He
accepts that Elsey
is guilty of misconduct. The issue is rather
whether the sanction of dismissal is justified for contravening this
rule in the circumstances.
13
The applicant argues that undue weight was
given to certain factors at the expense of other more important
factors. In coming to
the conclusion that dismissal was not justified
the commissioner took into account Elsey's clean record (linked to
her length of
service) the fact that she was under pressure at work,
and the fact that the applicant had not assisted her in her work
situation.
The unresolved incident on 14 August 2007 as well as the
fact that the acts of insubordination had taken place in Elsey's
office
out of the view of staff (with the exception of the slamming
of the door) were also taken into account. In my view these are all
factors that could have been taken into account by the commissioner.
Mr Crafford, who appeared for the applicant, referred to factors
such
as seniority and the serious and repetitive nature of Elsey's conduct
in support of the view that dismissal was justified.
He also argued
that the reliance placed by the commissioner on the fact that most of
the events took place in Elsey's office and
not in the view of other
employees is misplaced and ignored the fact that one of the charges
was that of insolence. Whilst I would
probably have given greater
weight to these factors and would perhaps not have come to the same
conclusion, this is not the test
on review. In line with the decision
of NAVSA AJ in
Sidumo
(at paragraph 110) one must consider whether the decision is not one
to which a reasonable commissioner could have come. On this
basis I
cannot overturn the decision of the commissioner.
To
paraphrase the decision (at paragraph 119), when I take into account
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. If
I adopt the approach adopted by
Ngcobo J
(at paragraphs 265 to 268) in the same decision and enquire whether a
gross irregularity has been committed, I come to
the same conclusion.
14
However, this is not the end of the matter.
The applicant argues that in coming to his conclusion the
Commissioner disregarded,
or misconstrued, certain evidence. In
certain respects his reasoning was also flawed.
15
A lengthy and often repetitive number of
examples is provided:
15.1
the commissioner erred in finding that the
reason for Elsey's conduct was work pressure. The applicant argued
that the evidence
established that her department was coping. The
reason for the refusal to obey the instruction was that she was
annoyed by the
fact that Mr Lamb had not apologised and that she was
annoyed and irritated by Lamb and Nel. Her refusal to obey the
instruction
was an attempt to hold the applicant to ransom;
15.2
the fact that Elsey was undergoing medical
treatment was a "red herring";
15.3
the commissioner had erred in finding that
the applicant was at fault in not assisting Elsey. The applicant
argued that the evidence
established that she had been offered
assistance. Linked to his was the argument that the applicant had
been held responsible for
Lamb not apologising;
15.4
the commissioner had failed to take into
account an incident of insolence that had occurred a month earlier;
16
As I understand it, Mr Crafford's argument
is that the commissioner erred in assessing the relevant evidence. He
disregarded certain
evidence that should have been considered and
considered certain evidence that should have been disregarded. He had
regard to facts
that were not, or should not, have been "properly
before him".
17
I accept that in coming to a decision as to
the appropriateness of the sanction
imposed
by the employer a commissioner must only consider facts that are
properly before him and must not disregard relevant evidence.
This is
clear from
Sidumo
.
See also
Karen Beef (Pty) Ltd v Bovane
And Others[2008]
[2008] ZALC 50
;
8 BLLR 766
(LC)
where
it was stated that a decision which is not supported by any evidence
or by evidence that is insufficient to reasonably justify
a decision
is reviewable.
18
The often expressed warning that a court
should be careful not to blur the distinction between a review and an
appeal seems to be
relevant to at least some of the arguments made on
behalf of the applicant.
19
I have gone through the record of the
arbitration proceedings with the assistance of the arguments
proffered the parties and have
come to the conclusion that there is
sufficient evidence to reasonably justify the commissioner's factual
findings that lead to
the conclusions he made. In so far as he
accepted the evidence of Elsey in preference to that of other
witnesses he can perhaps
be criticized for not motivating his views
in this regard but awards are not required to be "impeccable".
See the comments
by Davis JA in
Ellerine
Group Holdings v Commission for Conciliation, Mediation and
Arbitration
(2008) 28 ILJ1899
(LAC).
The contention that the
arbitrator took into account evidence of Elsey that had not been put
to the applicant's witnesses is also
of less importance. It is clear
from the question put to the witnesses what the essence of her case
would be.
20
The Commissioner did not ignore relevant
evidence. Much was made of the fact that the commissioner accepted
that Elsey had a clean
disciplinary record when the evidence
established that there had been an incident approximately a month
earlier. The evidence shows,
however, that although the issue had
been addressed with Elsey, no formal steps had been taken against
her.
21
Two further points made by Mr Crafford
should also be addressed.
22
He criticised the commissioner for taking
the view that Elsey's request that the managing director should leave
her office before
she did something that she would regret, excused
her behaviour was incorrect. This was in fact a further act of
defiance rather
than an attempt to defuse the situation. I can find
no indication that this view was expressed by the commissioner when
he analysed
the facts and motivated his award.
23
He argued that the reasoning adopted by the
commissioner in effect means that an employer in the position of the
applicant is placed
in an intolerable position because an employer
cannot dismiss an employee simply because she is allegedly stressed
at work. In
my view this inference cannot be drawn from the award.
Firstly, the award is not based on a mere allegation. It is based on
a finding
that she was in fact under stress. Secondly such an
argument ignores that other factors taken into account by the
commissioner
in coming to its decision.
24
For the above reasons I find that the
applicant has not made out a case that the award be set aside and
reviewed.
ORDER
I
therefore find that the application should be dismissed with costs.
_____________________________
LE
ROUX AJ
On
behalf of the Applicant: Mr Crafford
On
behalf of the Respondents: Advocate Fourie
Date:
3 April 2009