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[2010] ZALCJHB 56
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Fairy Tales Boutique t/a Baby City Centurion v Commission for Conciliation Mediation And Arbitration and Others (JR469/09) [2010] ZALCJHB 56 (20 August 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(Held
at Johannesburg)
REPORTABLE
CASE NUMBER: JR469/09
In
the matter between:
FAIRY
TALES BOUTIQUE t/a BABY CITY
CENTURION
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
L DREYER (cited in her
capacity
as Commissioner of the Commission
for
Conciliation Mediation and Arbitration)
Second
Respondent
WINNIE
SITHOLE
Third
Respondent
JUDGMENT
BHOOLA
J:
Introduction
[1]
The applicant seeks an order
a.
Reviewing and setting aside, in terms of
section 158(1)(g) of the Labour Relations Act 66 of 1995 (“the
LRA”), the rescission
ruling of the second respondent (“the
commissioner”) under case number GATW 1604/08 dated 31 January
2009.
b.
Reviewing and setting aside or correcting,
in terms of section 145 of the LRA, an arbitration award dated 31
January 2009, issued
by the commissioner under case number GATW
1604-08, and in terms of which she found that the third respondent
had been unfairly
dismissed and ordered the applicant to compensate
her in the sum of R35 400-00, which is equivalent to 12 month’s
salary.
[2]
After hearing the parties on 5 August 2010 I made an
ex
tempore
order dismissing the review
with costs. These are my reasons.
Background
facts
[3]
The third respondent commenced employment with the applicant on 17
March 2001 as a cashier. At the date of her dismissal she
earned
R2950-00 per month. On 5 February 2008 she received news that her
mother-in-law had passed away and approached her immediate
superior,
Ragani Chetty (“Chetty”) for leave in order to arrange
the funeral. She was denied leave on the basis that
she had exhausted
all her family responsibility leave and was required her to be
present for stock-taking at the applicant that
weekend. The
applicant’s further reason for denying her family
responsibility leave was that, in its view, the provision
for such
leave in the Basic Conditions of Employment Act 75 of 1996 (“the
BCEA”), did not extend to a parent-in-law.
The third respondent
informed Chetty that she would nevertheless not be at work for the
next few days. She was responsible for
the care of her mother-in-law
and proceeded to make the arrangements for the funeral (which took
place on Saturday 9 February)
and also conducted the post-funeral
rituals on the Sunday. She returned to work on Monday 11 February and
was issued with a notice
to attend a disciplinary enquiry. At the
enquiry on 13 February 2008 she was dismissed on a charge of gross
insubordination.
[4]
The third respondent’s disciplinary record reflects eight
written warnings for
inter alia
,
late coming and till mistakes, the final warning having been issued
on 21 September 2007.
[5]
The third respondent referred a dispute to the first respondent and a
conciliation was conducted on 4 March 2008. Thereafter
an arbitration
was held and a default award was granted by Commissioner Siavhe
ordering the applicant to pay the third respondent
the sum of
R17820-00, being 6 months’ salary as compensation for her
unfair dismissal.
[6]
On 27 June 2008 the applicant received the default arbitration award
and brought a rescission application on the grounds that
the award
had been erroneously made in its absence since it had not been
advised of the set down of the arbitration. On 17 November
2008
Commissioner Maree rescinded the award and proceeded to hear the
merits. Since the third respondent was not present Commissioner
Maree
dismissed her claim and issued a ruling to this effect (“the
dismissal ruling”).
[7]
The third respondent, unaware of the dismissal ruling, approached the
first respondent to enquire about the progress of her
matter. She was
advised of the dismissal ruling and since she had no knowledge of the
set down of the arbitration, she approached
a senior commissioner at
the first respondent (Commissioner Mohala) to seek re-enrolment of
the matter. Commissioner Mohala appears
to have investigated the
matter and concluded that no notice of set down was sent to the third
respondent.
[8]
The matter was then re-enrolled for arbitration before the second
respondent. At the commencement of the matter she rescinded
the
dismissal ruling and proceeded to hear the merits of the claim.
Grounds
for review
[9] Mr Levin, appearing
for the applicant, submitted as follows in respect of the grounds for
reviewing the decision to rescind
the dismissal ruling:
(a)
The commissioner committed a gross
irregularity in her conduct of the proceedings when she failed to
inform the third respondent
that no formal application for rescission
had been made to her in compliance with rule 31 (2) of the Rules for
the Conduct of Proceedings
before the CCMA;
(b)
The commissioner failed to provide a
reasonable explanation for not requiring a formal rescission
application from the third respondent;
(c)
The commissioner exceeded her powers in
that she did not allow parties to make formal representations at the
arbitration on the
basis for rescission and merely rescinded the
award thereby disregarding the applicant’s right to oppose such
application;
(d)
The third respondent had not proven that
she had a reasonable explanation for not attending the previous
arbitration and that she
had good prospects of success. The failure
by the second respondent to take this into consideration constitutes
a gross irregularity.
[10] On the merits Mr
Levin made the following submissions in amplification of the grounds
for review:
(a)
The commissioner unjustifiably
and/incorrectly implied and/or committed a gross irregularity when
she found that “
the applicant was
indeed dismissed for attending her mother-in-law’s funeral. Any
employee is entitled to disobey an unreasonable
instruction”.
This disregards the fact that the third
respondent was clearly instructed to attend work in preparation for
stock take and she failed
to obey such instruction. Gross
insubordination is regarded as a serious offence and should not be
dealt with in such a light manner
as the commissioner had done.
Furthermore, it was submitted that an employee is only entitled to
disobey an unlawful instruction
and one she is not qualified to
perform. Under the circumstances it was not unlawful or unreasonable
to instruct her to attend
to her normal duties. Stock-taking is
an annual event at the applicant and all employees are aware that it
is compulsory
to attend. Not only had the third respondent exhausted
her family responsibility leave but she was told that it was not
permitted
to take leave for the death of her mother-in-law. Moreover
although the funeral was held on the Saturday she failed to attend
work
on the Sunday without a valid reason.
(b)
The commissioner unjustifiably and /
incorrectly implied and / or committed a gross irregularity when she
found that “
[i]t was entirely
unreasonable to reject her request especially after her husband
phoned and further explained the situation”.
In
this regard it was submitted that the commissioner was biased towards
the third respondent in that the evidence was that the
third
respondent’s husband had called merely to inform Chetty that
she would be going to the bank to sign documents. He did
not explain
that she would be attending the funeral despite the applicant’s
instructions and would only return to work on
the Monday after the
funeral.
(c)
The commissioner unjustifiably and / or
incorrectly implied and / or committed a gross irregularity when she
found the dismissal
to have been substantively unfair. The same
standard of discipline needs to be applied to all employees and other
employees who
fail to attend work and carry out lawful instructions
are similarly disciplined by the applicant.
(d)
The commissioner unjustifiably and / or
incorrectly implied and / or committed a gross irregularity when she
found that the dismissal
was procedurally unfair in that her
reasoning was that the third respondent had been prevented by Chetty
from calling a representative
to the enquiry. The chair of the
enquiry had asked her whether she would require assistance to which
she responded in the negative.
Moreover, the third respondent had
never raised a procedural concern and Commissioner Siavhe (in the
rescinded award) had found
the dismissal, in the absence of the
applicant, to be procedurally fair but awarded only 6 months’
compensation. The commissioner’s
finding is therefore based on
incorrect facts.
(e)
The commissioner unjustifiably and / or
incorrectly implied and / or committed a gross irregularity when she
found that the maximum
compensation was justified. It was submitted
that such an award is excessive under the circumstances and she
moreover failed to
furnish reasons for it.
[11]
Mr Levin therefore submitted that the commissioner had grossly
misconducted herself in making such an inappropriate award.
She had
not judiciously applied her mind in coming to her findings and did
not take the seriousness of the offence into consideration,
thereby
arriving at a decision that a reasonable decision maker could not
reach in terms of the
Sidumo
test
(see
Sidumo & Another v Rustenburg
Platinum Mines Ltd & Others
(2007)
28 ILJ 2405 (CC)) as applied by the Labour Appeal Court in
Phalaborwa
Mining Co Ltd v Cheetham and others
(2008) 29
ILJ
306
(LAC).
The
arbitration award
[12] The award sets out a
comprehensive summary of the evidence before the commissioner. In
essence the evidence presented to the
commissioner was as follows:
(a)
The respondent’s National Operations
Manager, Grant Caminsky, testified that the applicant was denied
family responsibility
leave as she had exhausted her family
responsibility leave and that in any event the BCEA did not provide
for leave in respect
of parents-in-law. The applicant would not have
denied her leave for the day of the funeral, which was on Saturday 9
February 2008,
and she had only been dismissed for taking leave from
7 to 10 February, which was the annual stock-taking weekend and was a
critical
time for the applicant.
(b)
The chair of the disciplinary enquiry,
Clifford Levin (who is also the applicant’s attorney of record
in casu
),
testified that a proper disciplinary enquiry was held. The third
respondent did not have a representative but assured him that
she
“
could stand for herself
”.
Attendance was vital at the stock-taking and extra staff had been
brought in from other branches to assist. The Sunday
of the
stock-taking weekend was the most crucial day. The third respondent
had apologised for her conduct but the trust relationship
had
irretrievably broken down and he considered no sanction other than
dismissal to have been justified. The applicant had applied
its rules
consistently and fairly and had considered the third respondent’s
conduct to constitute gross insubordination.
He also took into
account the fact that the third respondent had numerous previous
warnings on her record.
(c)
Chetty had been the third respondent’s
manager for about 3 or 4 years. She testified that when the third
respondent requested
leave on 6 February she discussed the matter
with Caminsky and then advised her that family responsibility leave
did not apply
to in-laws and moreover that her attendance at the
stock-taking weekend was important. The following day the third
respondent’s
husband called to advise that she had to go to the
bank to sign papers. The third respondent only returned to work on
Monday and
brought a copy of the death certificate. Attendance of all
staff at the stock-taking and the preceding days of preparation was
compulsory. She had brought in 10 staff from other branches to assist
her on the Sunday. The third respondent was disrespectful
towards her
and she would not be able to work with her again. She admitted that
she had not permitted the third respondent’s
representative
(Frieda) to attend the enquiry because she had assumed that she would
only be required at a later stage.
(d)
The applicant’s case was that when
she informed Chetty of the funeral the latter undertook to contact
Caminsky and revert
to her. When she enquired again later that day
Chetty informed her that her request for leave had been denied on the
grounds that
she had no family responsibility leave due to her. She
requested annual leave or unpaid leave as she had 23 days’
annual
leave to her credit, but this too was refused. She went home
and informed her husband who undertook to call Chetty to explain the
situation. She took care of her mother in law and was the primary
householder, and as such had to attend to all the funeral
arrangements
as well as the post-funeral rituals, which included
feeding mourners and cleaning the house. When she handed in a copy of
the death
certificate on the Monday she was given notice to attend a
disciplinary enquiry. She had arranged with Frieda to assist her, and
when she was called in to the enquiry she asked Chetty to call Frieda
but Chetty informed her that Frieda was busy. The enquiry
proceeded
and she explained the tradition of funerals in her community and what
her duties as a daughter were. Chetty’s evidence
was that she
could no longer trust her as she did not respect her. She was
informed of her dismissal at the end of the enquiry
but was never
issued with a notice of dismissal. This was her first disciplinary
enquiry and she had been made to feel like a thief.
It was put to her
in cross examination that the applicant’s policy required her
to inform them personally if she was not
coming to work, and that she
had not complied with the policy when she arranged for her husband to
call her employer. Her evidence
was that he had offered to call
Chetty to explain the nature of the funeral and the obligations that
she was required to perform.
She explained the type of rituals that
followed the funeral and which had to be performed on the Sunday. She
also testified that
when Chetty had refused her request for leave she
had informed Chetty that she would not be coming to work. Under the
circumstances
she was afraid of returning to work and sought
compensation instead of reinstatement as a remedy for her unfair
dismissal.
[13]
The commissioner then proceeded to set out her findings. She rejected
the applicant’s version that the third respondent
had been
dismissed for disobeying an instruction, but held that in any event
an employee is entitled to disobey an unreasonable
instruction. This
was particularly so in circumstances where “
there
was a family emergency and the applicant was needed, according to her
custom, to make the myriad of arrangements associated
with an African
funeral
.
She accordingly concluded that the third respondent had not been
dismissed for gross insubordination, but for taking (unauthorised)
leave to attend the funeral. This conduct was justified given that
the primary responsibility for making all the arrangements fell
to
her. The commissioner found that whilst it may be that the third
respondent was not eligible for family responsibility leave,
this did
not prevent the applicant from permitting her to take annual leave or
unpaid leave (or offering this if she had not asked
for it herself).
In the circumstances it had been entirely unreasonable to reject her
request especially after her husband phoned
and further explained the
situation
[1]
. She found further
that the applicant had not been unduly inconvenienced by the third
respondent’s failure to attend the
stock-taking that weekend as
it was common practice that employees from other stores would be
brought in to assist. Indeed the
applicant’s evidence was that
12 employees had been brought in from other stores to assist.
Moreover, Chetty would have been
aware as from the Wednesday
preceding the stock-taking that the third respondent would not be
present for the weekend and she had
sufficient time to arrange for
further assistance if this had been necessary.
[14]
The commissioner therefore found that the applicant’s conduct
displayed “
a callous disregard for
the cultural practices of black employees and the family
circumstances of the applicant”.
She also rejected the evidence of Levin that he took her disciplinary
record into account, finding that the warnings were irrelevant
to the
current offence with which she had been charged, and all but one
would have expired and should have been expunged from her
record.
Moreover, even if the third respondent had a current warning for
absence without leave, in the circumstances her dismissal
would still
have been unfair. There was no evidence that mitigating circumstances
(including that she was the sole breadwinner
of a family of four) had
been considered by Levin, and she found the dismissal to be
substantively unfair.
[15]
In regard to procedural fairness the commissioner found, based on
Chetty’s admission and Levin’s failure to ensure
that the
third respondent was represented, that the decision to dismiss was
procedurally unfair. Levin’s testimony was that
“[i
]
did put to Winnie does she require somebody to represent her and I
made it in simple English or do you want to represent yourself,
stand
for yourself, she indicated that she wanted to represent herself as
she is doing today”.
[16]
The commissioner then proceeded to award the third respondent maximum
compensation of 12 months’ remuneration, commenting
as she did
that the applicant should have regard to the Code of Good Practice:
Dismissal as well as
Sidumo
in
which the Constitutional Court clearly set out the requirements for a
fair dismissal.
Analysis
of evidence and submissions
[17]
On the first ground of review it would appear that the second
respondent exercised her discretion under s 144 of the LRA, as
Mr
Chaane correctly submitted on behalf of the third respondent, to
rescind the dismissal ruling. She would have been entitled
to
do so of her own accord even in the absence of submissions from the
parties. Her decision to proceed with the arbitration
de
novo
cannot be said to have been
prejudicial or to constitute an irregularity given that both parties
were present.
[18]
In regard to the review of the procedural fairness finding it is
incontrovertible that the third respondent was denied the
right to
representation at her disciplinary enquiry. Chetty’s concession
in this regard would on its own have been dispositive
of the matter,
although it is further self evident from the fact that the enquiry
was chaired by the applicant’s attorney
and the applicant was
represented by a senior manager. In his submissions
in
casu
Mr Levin sought to persuade the
court that the third respondent had refused representation in that
when he had asked her if she
wanted to be represented she had
answered “
no”.
This is a somewhat disingenuous submission and is not borne out by
the record, and which he correctly retracted.
[19]
In regard to substantive fairness neither the approach adopted by the
commissioner nor her conclusion can be faulted. She was
justified in
finding that in the circumstances an attempt should have been made by
the applicant to accommodate the needs of the
third respondent. In my
view the evidence presented established that the applicant had
displayed a callous disregard for the third
respondent’s
personal circumstances. There was no insinuation that the request for
leave was not genuine or that the third
respondent had abused the
applicant’s leave policy. The submission that she was
indispensible to the stock-taking and that
her absence caused
prejudice to the applicant was further correctly held to be
unsustainable on the evidence. The commissioner
accordingly
complied with the obligations of a decision-maker post-
Sidumo
in respect of both the conduct of the
proceedings and the outcome.
[20]
The commissioner’s award reflects a circumspect and analytical
approach to the evidence, and her conclusion is justified
and
reasonable. It is based on a careful consideration of all the
evidence and submissions presented, and the submission
that it was
tainted by misconduct or gross irregularity in her having regard to
extraneous evidence or failing to apply her mind
to relevant evidence
cannot be sustained. Moreover there is no factual substantiation for
the submission that the commissioner
was biased, and insofar as the
applicant sought to rely on the finding of Commissioner Siavhe as a
benchmark, his award and the
proceedings before him have no relevance
in casu
.
In considering the arbitration proceedings and the award in the light
of the
Sidumo
test
therefore, it is my view that the review is manifestly without merit
and must fail.
[
21] In the premises, I make the following order:
The
application for review is dismissed, with costs
______________
Bhoola
J
Judge
of the Labour Court of South Africa
Date
of hearing and ex tempore order: 5 August 2010
Date
of reasons: 20 August 2010
Appearance:
For
the Applicant: Mr C Levin, Clifford Levin Attorneys
For
the Third Respondent: Mr H Chaane, Gildenhuys Lessing Malatji Inc.
[1]
Insofar
as the applicant alleges that there was no evidence before the
commissioner that he had provided an explanation for the
third
respondent’s absence, it would appear that the commissioner
rejected Chetty’s evidence that the husband simply
said she
was going to the bank to sign papers, and accepted the third
respondent’s version that he offered to explain why
her
presence at home for the entire weekend was necessary.