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[2009] ZALCJHB 29
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Itt Flygt (Pty) Ltd v Odgers and Others (JR948/07) [2009] ZALCJHB 29 (30 July 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR948/07
In
the matter between:
ITT
FLYGT (PTY) LTD
APPLICANT
and
VAUGHAN
ANTHONY
ODGERS
1
ST
RESPONDENT
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
2
ND
RESPONDENT
BONISWA
MBOVANE
N.O.
3
RD
RESPONDENT
JUDGMENT
Molahlehi J
Introduction
[1]
This is an application to review and set
aside the arbitration award issued by the third respondent acting in
her capacity as commissioner
of the CCMA, under case number GAJB
7269-06. In terms of the award the commissioner found that the
dismissal of the first respondent
(the employee), was both
procedurally and substantively unfair and ordered that the applicant
to compensate him for the unfairness
of the dismissal.
Background facts
[2]
At the time of his dismissal the employee
was employed by the applicant as a sales representative. The employee
was dismissed subsequent
to a disciplinary enquiry which was held on
3
rd
March 2006. The charges which the applicant proffered against the
employee which also led to his dismissal were as follows:
“
Dishonesty
and breach of the trust relationship in that you:
1.
falsified your call report schedule when you visited Witbank on 23
and 24 January 2006;
2.
on that same day, 24 January 2006, when your call report schedule
showed you as visiting
clients in Witbank, you were in fact during
working hours at the home of Chris Munnick, an ex-employee who is
currently in dispute
with the Company and whom the Company has reason
to believe is maliciously interfering with its business;
3.
during an interview when the Company was seeking to establish whether
or not the said Munnick
was in contact with employees, you denied
that there had been any contact with him during working hours.”
[3]
The employee was found guilty of all but
one of the charges. In the notice of dismissal the applicant noted
that the employee pleaded
guilty to one of the charges which were
proffered against him, namely that he falsified his activity report
by indicating that
he visited one of the applicant’s clients,
Sky Enterprises on a particular day when he did not.
[4]
Following his dismissal the employee
referred an alleged unfair dismissal dispute for conciliation to the
CCMA and upon failure
thereof referred the matter to arbitration. As
indicated above the commissioner found the dismissal to have
been both substantively
and procedurally unfair and ordered the
applicant to compensate the employee in the sum of R88 500-00, being
the equivalent of
five month’s salary, calculated at the rate
of R17 700-00 per month.
[5]
It is common cause that the employee was
informed of the additional charges concerning falsification of his
report about what he
did on 24
th
January 2006 at the disciplinary hearing. The charge in this respect
concerned the allegation that the employee attended at Mr
Munnick’s
house during working hours and failed to report this fact on his call
report schedule. The employee was accused
of having been at the house
of Mr Munnick between the hours 15h53 and 16h10 on the 24
th
January 2006 and he had also contacted Mr Munnick on his cell phone
during working hours.
[6]
The case of the applicant during the
arbitration hearing was that contrary to the recordal of the employee
that he had done a full
day’s work on the 23
rd
January 2006, he had in fact done less than that. According to the
applicant the employee had a 10 (ten) minutes meeting at 08h00
with
Mr Pelser and thereafter proceeded to Witbank where he attended
another 10 (ten) minutes meeting when he delivered spare parts
and
that was the end of his working day.
[7]
As concerning the accusation about the 24
th
January 2006, the case of the applicant was that the employee had
falsified his report by recording that he attended at Witbank
Municipality and spoke to Mr Ngumbu of the municipality about time
frames for a representation. It was also alleged that the employee
had claimed to have attended on the same day at Sky Enterprise and
discussed with a certain Kay what was happening with the quotes
that
had been sent to the power stations. Mr Pelser who testified for the
applicant indicated that he had visited the Witbank Municipality
during February and was told that Mr Ngubu was on leave during the
period that the employee claimed to have visited the municipality
and
therefore he could not have had any discussion with him on that day.
[8]
The third charge against the employee was
that he breached a rule prohibiting employees from contacting Mr
Munich, a former employee
of the applicant. The rule was introduced
and communicated verbally to all the employees by Mr Tring, the
managing director of
the applicant. Mr Munich was prior to his
dismissal the supervisor of the employee and a personal friend. The
employee was accused
of having contacted Mr Munich during working
hours through either visiting him at his house or through the phone
or cell phone
sms messages.
[9]
In challenging his dismissal during the
arbitration hearing the employee contended that his dismissal was
procedurally unfair because
he was not afforded an opportunity to
have a representative during the proceedings. He complaint that the
chairperson of the disciplinary
hearing denied him a postponement
when he requested one after being told that he could not have a
representative from Port Elizabeth
because the applicant was not
prepared to pay the traveling costs of the representative. He
testified that when he was told he
could not have the representative
from Port Elizabeth he requested a postponement so that he could find
some one in Johannesburg
to represent him. The matter proceeded on
the 3
rd
March 2006, and when he was asked whether he had a representative he
indicated that he did not and again requested a postponement
to
afford him the opportunity to look for one. The matter was adjourned
for an hour for him to look for a representative but could
not find
one as those he approached declined for various reasons. He further
indicated that he requested another postponement to
afford him an
opportunity to find a representation but was denied.
[10]
The second complaint of the employee is
that the charges were amended on the day of the hearing without
affording him an opportunity
to prepare for the newly introduced
charge. He testified in this respect that the second charge was added
on the 7
th
March 2006, and when that happened he requested a postponement as he
needed more time to prepare.
[11]
The third complaint of the employee is that
he was denied the right to appeal against the outcome of the
disciplinary hearing. This
complaint is based on the fact that the
applicant or the chairperson of the disciplinary hearing did not at
the end of the hearing
advice him of the right to appeal against his
dismissal.
Grounds for review
and the arbitration award
[12]
The applicant in its founding affidavit
contends that the commissioner committed a gross irregularity in that
“
she made a material finding which
cannot be substantiated by the evidence presented before her . . .”
The applicant further contends that the commissioner made a mistake
of law, and/or her award is not rational or justifiable. The
applicant contends that the commissioner made a mistake of law or her
award is unjustifiable because the evidence presented during
the
arbitration hearing does not support the commissioner’s
conclusion that the employee had been informed of the right to
representation during his disciplinary enquiry but had not been
afforded the opportunity to utilize this right. In support of this
argument the applicant argued that the employee had initially
requested that a fellow sales representative from Port Elizabeth
represent him during at the disciplinary enquiry but this failed
because the employee expected the applicant to pay the travelling
costs of the representative. The disciplinary hearing was held in
Johannesburg.
[13]
As concerning the refusal for the
postponement of the hearing to afford the employee an opportunity to
prepare for the newly introduced
charge the applicant contended that
the conclusion of the commissioner in respect of this issue was
irrational because the employee
had pleaded guilty to the charge when
it was introduced. The charge was that he falsified his call report
for 24 January 2006.
In this respect the applicant contended that the
employee did not dispute having visited the home of Mr Munnick on 24
January 2006.
During argument the legal representative of the
applicant argued that there was no change in the essence no new
charge was added
but what was added was the date when the offence
took place.
[14]
The applicant argued that the conclusion of
the commissioner that the employee was not informed of his right to
appeal was not supported
by evidence which was led during the
arbitration hearing. In this respect the applicant relied on the
evidence of the Ms Scheepers,
the then applicant’s human
resource manager, who testified that immediately after the
disciplinary enquiry, she had accompanied
the employee to his car and
had advised him that he was entitled to appeal against the outcome of
the disciplinary enquiry. It
was submitted during argument that the
employee was not prejudiced by not being advised of the right to
appeal because he was informed
in the notice of termination of his
employment that he had a right to refer the matter to the CCMA if he
was unhappy.
[15]
The commissioner in her analysis of the
evidence which had been presented before her by the parties commences
by identifying the
issues before her as concerning both the
procedural and substantive fairness of the dismissal of the employee.
She also confirms
that the burden to show that the dismissal was fair
in terms of
section 192
(2) of the
Labour Relations Act 66 of 1995
,
rested with the applicant.
[16]
As concerning procedural fairness the
commissioner accepted that the employee was informed about his right
to representation but
found that he was not afforded the opportunity
to exercise the right in that the employee’s request that he be
represented
by some one from Port Elizabeth but was denied without
establishing who would be responsible to paying the travelling costs.
[17]
The commissioner further found the
dismissal to be procedurally unfair in that the applicant failed to
inform the employee about
his right to appeal against the outcome of
the disciplinary hearing. The commissioner reasoned in this respect
that it was the
duty of the chairperson of the disciplinary hearing
or person who was issuing the letter to inform the employee about the
right
to appeal.
[18]
Turning to substantive fairness the
commissioner considered the facts concerning the employee’s
reports of both the 23
rd
and 24
th
January 2006. As concerning the 23
rd
January, the commissioner found that the employee visited one of the
applicant’s clients, Lectro Power.
[19]
Whilst accepting that the correspondence
from the client indicated that the employee spent only 10 (ten)
minutes, at their premises,
the commissioner took into account the
fact that the employee would have spent the other part of the day
traveling between Johannesburg
and Witbank. With regard to the 24
th
January, the commissioner found that whilst the applicant’s
version was that the correspondence confirming the visit to Sky
Enterprise was not signed by Mr Govinder, it was not denied that it
was however signed by someone on his behalf.
[20]
The commissioner found that it was common
cause that the applicant had given its employees instruction not to
visit Mr Munich its
former employee. However, the commissioner states
that the applicant failed to prove that the employee visited Mr
Munich during
working hours. The commissioner also found in this
respect that the employee was not office bound and that it could
therefore not
be said that he worked normal working hours.
[21]
In considering the relief the commissioner
found that the trust relationship between the parties had broken down
because of the
relationship between the employee and Mr Munich. The
commissioner also took into account the fact that the employee had
been in
the employ of the applicant just over a year. It was for
these reasons that the commissioner awarded compensation equivalent
to
five months salary.
Evaluation
[22]
The Constitutional Court in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12
BLLR 1097
(CC),
held that the
provisions of
section 145
of the
Labour Relations Act was
suffused by
the constitutional standard of reasonableness. The standard of
reasonableness is determined by answering the question
which was
formulated in
Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs & Others 2004(7) BLLR
687(CC)
as follows; “
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?”
[23]
Ngcobo J summarised in
Sidumo
(at page 1178-F)
the test for gross
irregularity as was articulated in
Gold
Fields Investment Ltd & another v City of Johannesburg &
another
1938 TPD 551
as follows:
“… “
patent
irregularities,” that is irregularities tat takes place openly
as part of the proceedings, on the one hand, and “patent
irregularities, that is irregularities that take place inside the
mind of the judicial officer which are ascertainable from the
reasons
given by the decision maker.”
[24]
The crucial enquiry in determining the
existence of gross irregularity in terms of
Sidumo
is whether the conduct of the decision
maker complained of prevented a fair trial of the issues. This
inquiry focuses on the method
or conduct of the decision-maker and
does not concern itself with the correctness of the decision reached
by the decision-marker.
It is not every irregularity that would
constitute gross-irregularity. It has however been found in a number
of cases that a commissioner
commits gross irregularity if he or she
fails to apply his or her mind to a matter material to the fairness
of the sanction. See
Sidumo at
1179
A-C and 1180 A-C).
[25]
The employee’s case in as far as
procedural fairness is concerned is that he was denied the
opportunity to have a representative
to represent him during the
disciplinary proceedings. He contended that he was denied that right
arising from the refusal to postpone
the matter to afford him the
opportunity to find another representative after the respondent’s
refusal to carry the travelling
cost of the representation he had
chosen.
[26]
The purpose of representation during the
disciplinary hearing was set out in the case of
National
Union of Mineworkers and Another v Blinkpan Colliers Ltd (1986) 7 ILJ
579 (IC),
as firstly giving the
affected employee moral support and helps balance the scales. The
second purpose is to ensure that justice
is seen to be done. The
third purpose is to ensure that the playing field between the
employer and the employee is leveled in particular
where the one
party is more knowledgeable than the other. The Court further held
that denial of the right to representation would
invariably lead to
the conclusion that the procedure is unfair.
[27]
In
Malope v
Commissioner Mbha & Others (2005) 26 ILJ 283 (LC),
the employee who was charged with misconduct, secured the services of
a regional manager to represent her at the disciplinary hearing.
However, the manager withdrew from representing the employee a night
before the hearing. The employee then contacted one of the
employer’s
representative and informed him about the withdrawal of her
representative. The employer representative advised
him to raise the
issue the following morning at the hearing and request a
postponement. At the disciplinary hearing the following
day the
chairperson refused to grant the employee a postponement. The
chairperson of the disciplinary hearing seems to have denied
the
postponement because according to him the employee did not in her
application indicate that the representative withdrew the
day before
the hearing.
[28]
The court in
Malope
held that (page 291) it is clear that one of the requirements of a
procedurally fair and just hearing embraces the entitlement
of an
employee to be represented by a co-employee or a trade union
official. The Court further held that representation is not
a matter
of discretion, nor is it tied to the exercise of a prerogative or an
indulgence.
[29]
In my view the right to representation is
so fundamental and critical to a fair hearing that an employer is
required to seriously
consider all the facts and circumstances of the
matter before denying an employee the right to representation at the
disciplinary
hearing. The fact that an employee has failed to
timeously arrange for a representation is a factor to take into
account in denying
an employee a postponement to afford him or her
the opportunity to find a representation. It is however, not the
determining factor
in the consideration whether or not to grant a
postponement to afford the employee the opportunity to secure a
representative.
I accept that postponement occasioned by the delay in
the employee choosing his or her representative is likely to have an
impact
on the speedy finalization of the disciplinary hearing.
However, a balance has to be struck between the interest of speedy
finalization
of the disciplinary hearing and right to representation.
The right to representation is so fundamental to the process of a
fair
hearing that failure to accord it the necessary weight in
balancing it against the speedy finalization of the hearing and the
costs
associated with a postponement will invariably have a bearing
on the fairness of the procedure of the hearing. In my view where
in
considering postponement a conflict arise between the two; the speedy
finalization of the hearing must give way to the right
to
representation because representation is core to the principle of
fairness.
[30]
Turning to the facts of the present case,
it is common cause that on the first day of the hearing the employee
applied for a postponement
in order for him to find a representative
in Johannesburg, the appointment of the one in Port Elizabeth having
apparently failed
because of the travelling costs issue. When the
matter resumed again he was given an hour to find another
representative and as
indicated earlier all the people he approached
declined to assist him for various reasons. It seems to me that the
reasonable inference
to draw is that the chairperson adjourned the
matter for an hour only because he wanted to finalize the matter as
speedily as possible.
This analysis suggest that the chairperson gave
more weight to the seedy finalization of the hearing over the right
to representation.
The chairperson adopted this approach despite the
fact that the respondent had added another charge at the hearing. In
my view
the chairperson failed to appreciate the importance of the
right to representation during a disciplinary hearing and as result
failed to apply his mind as to the need to grant a postponement to
afford the employee to find another representative.
[31]
Turning to the issue of the additional
charge introduced at the hearing, it is common cause that the
respondent introduced the charge
relating to the 24
th
January 2006, at the hearing. The employee was refused a postponement
to afford him the opportunity to prepare for that charge.
In my view
the unfairness did not arise from the introduction of the charge but
from the refusal to grant a postponement to afford
the employee the
opportunity to prepare his defense against that charge. It would
again appear that the chairperson placed more
value on the speedy
finalization of the hearing over the right to prepare, an approach
which in the circumstances of this case
was unreasonable.
[32]
Thus the conclusion the commissioner
reached that the dismissal was procedurally unfair is not only
reasonable but also correct.
The conclusion was reasonable because
the employee was denied the right to representation when he was
refused a postponement in
the circumstances where he had to approach
other employees after the respondent failed to pay the travelling
expenses of his first
representative. The employee required more time
to seek a representative after some of the employees he approached
for assistance
in a space of an hour indicated that they were for
various reasons not available. Fairness in the circumstances of this
case required
the chairperson to postpone the hearing. The
chairperson could have addressed the issue bringing the matter
speedily to finality
by stipulating a time frame within which the
employee was to secure a representative. It needs to be emphasized
that, it would
appear, the focus of the chairperson was more on
speedily finalizing the hearing and failed to apply his mind to
impact that that
would have on the fairness of the procedure.
[33]
The commissioner was further correct in
concluding that the dismissal was substantively unfair. In this
respect I am in agreement
with the commissioner’s reasoning,
particularly regard being had to how the rule was introduced by the
respondent. The respondent
unilaterally introduced the rule
prohibiting contact with Mr Munich. The rule was in this regard
implemented without having regard
to the fact that the employee and
Mr Munich were not only co-workers but were also close friends. In
fact one of the incident that
the respondent relied on related to the
time the employee visited Mr Munich to deliver his house key after he
had looked after
his house whilst he was away on leave.
[34]
The commissioner reasoned with regard to
the substantive fairness of the dismissal firstly, as concerning the
allegation that the
employee had falsified the reports that there was
no substance to those allegations. As concerning the ten minutes
reflected on
the report which the respondent relied on in showing
that the employee did not work a full day, the commissioner found
that the
other part of the day was spent traveling between
Johannesburg and Witbank. I find nothing unreasonable with this
reasoning. In
relation to the incident of the 24
th
the commissioner rejected the version of the applicant that the
employee did not visit Sky Enterprise. The commissioner reasoned
that
even though the correspondence from Sky Enterprise was signed by Mr
Govinder it was signed someone from his office.
[35]
The reasoning of the commissioner with
regard to the instruction that the employee was not to visit Mr
Munich cannot in my view
be faulted for unreasonable. She applied her
mind to the evidence which was before her and took into account the
circumstances
surrounding the instruction. She stated that there was
no time limit for the instruction and further the applicant failed to
prove
that the employee visited Mr Munich during working hours.
[36]
The award of compensation is also based on
sound reasoning and can therefore not be regarded as unreasonable or
as gross irregular.
Accordingly the applicant’s application to
have the award of the commissioner reviewed and set aside stand to be
dismissed.
There is also no reason why in law and fairness the costs
should not follow the results.
[37]
In the premises the applicant’s
application to have the award issued under the auspices of the CCMA
and under case number
GAJB 7269-06, is dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
25
th
February 2009
Date
of Judgment :
30
th
July 2009
Appearances
For
the Applicant :
Adv C B Garvey
Instructed
by :
Matjila, Hertzberg
& Dewey Attorneys
For
the Respondent: Adv A Dukhi
Instructed
by :
Mchunu Koikanyang
Incorporated