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[2010] ZALCJHB 34
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South African Revenue Services v Commission for Conciliation Mediation And Arbitration and Others (JR1215/08) [2010] ZALCJHB 34 (10 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: JR 1215/08
In
the matter between
SOUTH
AFRICAN REVENUE
SERVICES 1st
Applicant
and
THE
COMMISSSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION 1st
Respondent
J
F PIENAAR
N.O. 2nd
Respondent
NDAVHELESHENI
LORDWICK
MAREDA 3rd
Respondent
JUDGMENT
LAGRANGE,
J
Introduction
1.
This is an application to set aside an arbitration award applicant
seeks to set aside an arbitration award by a CCMA commissioner,
the
second respondent, issued on 15 April 2008.
2.
The commissioner found that the third respondent’s dismissal by
the applicant (‘SARS’) on 10 April 2006 was
procedurally
and substantively unfair and reinstated him with retrospective effect
to the date of his dismissal. The third respondent
(‘Mareda’)
at the time of his dismissal was one of four Audit Managers in the
Internal Audit section of SARS reporting
to the head of department,
Ms Samuels (‘Samuels’).
3.
In April 2005 Mareda was given a final written warning that he had
repeatedly infringed the Respondent’s working hours
policy,
neglected his managerial responsibilities and, or alternatively had
failed to apply the necessary diligence. On 14 July
2005 he found
guilty of the charges similar to those he was ultimately dismissed
for. He was given another final written
warning on this
occasion and was suspended without pay for 15 days, though the
unlawful suspension without pay was later withdrawn
as part of the
sanction on appeal.
4.
When he returned to work at the end of suspension on 23 September
2005, he was presented with a further suspension notice and
notice of
the enquiry which eventually proceeded on 17 February 2006, in his
absence.
5.
Mareda was charged as follows:
“
1. You
prejudiced the administration, discipline and efficiency of Internal
Audit by:
a)
Failed to adhere to SARS working hours from 4 July to 29 July
2005
b)
Failed to complete weekly timesheets from 4 July 2005 to 29
July 2005
c)
Failed to complete weekly templates from 4 July 2005 to 29
July 2005
2. Failed to carry out
lawful and reasonable instructions regarding your management
responsibilities without just or reasonable
cause.
”
(
sic
)
6.
The last charge related to Mareda’s failure to make certain
reporting inputs using a management software program known
as
‘TeamMate’ during the period June to August 2005. The
applicant claims he was unable to sign off on the reports
of auditors
in his team using the software because of his heavy workload.
7.
On the charge of not adhering to working times Mareda claimed that
after the final warning he had done so despite living on the
south
side of Johannesburg. He also said he was too busy to complete
the weekly timesheets which enabled the department to
track the time
spent on audit projects. In respect of the weekly templates, Mareda
said these served as agendas for the standing
meeting which Samuels
had with him each Monday and he had completed them.
The
arbitator’s findings
Procedural
unfairness
8.
Mareda disputed the procedural fairness of the enquiry which took
place in his absence. Mareda did not attend the enquiry when
it
convened for the fifth time on 17 February 2006, having failed to
proceed on earlier occasions for various reasons. His
ostensible reason for not attending was that he did not know it was
scheduled for that day. The arbitrator found that SARS had
notified a
Mr W Magoswana, a representative from NEHAWU of the date of the
hearing, but he had not conveyed the date to Mareda.
9.
On 18 February 2006, the day after the scheduled date for the
hearing, Mareda phoned the initiator of the enquiry, a Mr Mabaso
(‘Mabaso’) and asked when the enquiry would be held.
Mabaso advised him it had taken place and gathered from
Mareda that
he did not know of the date. The employer maintained that the
normal practice was for it to notify the employee’s
representative of new enquiry dates once the enquiry was underway.
Mareda denied he had ever appointed Magoswana as his representative
or that he had ever been advised by him of the scheduled date of the
hearing on 17 February 2006.
10.
Neither party called the shop-steward, Magoswana to testify at the
arbitration hearing, even though was still in the applicant’s
employ. The arbitrator inferred from the fact that SARS did not
call him as a witness that he would confirm never having
advised
Mareda of the enquiry date, but accepted that Mareda ‘had
difficulties in calling him as a witness’.
11.
The arbitrator found that whatever the practice was at SARS, the
failure to give Mareda notice of the enquiry was both
unsound and
contrary to the SARS own Disciplinary Code. The arbitrator
cited these extracts from clause 10 of the Code:
“
10.
DISCIPLINARY HEARING
No employee maybe
dimissed for misconduct, without being granted a hearing as
contemplated in this disciplinary code and procedure
unless the
holding of a hearing is made impossible by the employer failing to
attend the hearing for no valid reason, or the employee
indicating,
clearly and unequivocally , that she/he is not prepared to
participate in the hearing.
10.1 Notice of
disciplinary hearing
…
.
10.1.3 The employee
must be given notice at least seven (7) working days before the
hearing.
…
10.1.7 The employee
must sign receipt of the notice. If the employee refuses to sign
receipt of the notice, this does not invalidate
the notice but the
notice must be given to the employee in the presence of a fellow
employee who shall sign in confirmation that
the notice was conveyed
to the employee and the employee refused to sign receipt of the
notice.
…
10.2.3 If the employee
fails to attend the hearing and the chair confirms that the employee
did not have a valid reason, the hearing
may continue in the
employee’s absence.
”
12.
The arbitrator noted also that the pro-forma notice of the
disciplinary meeting attached as Annexure ‘D’ to
the Code
only makes provision for the signature of the employee and not his
representative. He also dismissed the notion that the
concept of
service on an employee’s representative which might apply
in other instances had no application in the context
of a
disciplinary enquiry. The fact that fruitless attempts were made to
contact Magoswana and Mareda on the day could not remedy
the
defective notice and the fact the enquiry had been postponed on
previous occasions did not entitle the chairperson to proceed
on that
day. The arbitrator was satisfied that it could not be said Mareda
failed to attend the hearing on that day for no valid
reason or that
he had shown an unequivocal intention not to attend the enquiry.
Substantive
unfairness
13.
The arbitrator prefaces his analysis of the substantive fairness of
Mareda’s dismissal by listing a number
of factors which he
clearly identified as strongly mitigating against an adverse finding
against Mareda. He notes that he
was a competent internal
auditor and manager and none of the allegations concerned the quality
of his work but merely his tardiness
in following procedures. He was
also not physically or emotionally well in the period under
consideration and was working under
the burden of a final written
warning together with the added responsibility of the job of another
audit manager who had left SARS,
leaving the applicant in charge of
two sections. In assessing Mareda’s health the arbitrator had
regard to medical reports
contained in the bundle which dealt with
Mareda’s mental and physical condition between February and
October 2005. The arbitrator
noted that even though these documents
were not referred to in any detail in the evidence, it was ‘clear’
that Mareda
suffered from depression caused by a stressful work
environment during that time. He notes that Mareda was admitted to a
clinic
from 24 to 27 July 2005 and booked off work by a psychiatrist
from 1 to 12 December the same year. A clinical psychologist’s
report issued around July or August that year could only identify his
work environment as most likely explanation of Mareda’s
depressed condition.
14.
On the charge of late-coming, there were no time keeping records the
employer could refer to but Samuels said that she
could see Mareda’s
office from hers and he continued to arrive late despite the final
written warning and he admitted this
in a discussion with Samuels on
22 August which she confirmed in an email a couple of days later.
Mareda claimed not to have got
the email because he was away from his
office visiting other centres and did not have unrestricted access to
his email. The arbitrator
declined to try and resolve this issue but
noted that Samuels conceded that if Mareda had gone to other offices
in the building
when he arrived at work, she would not be able to
tell if he had arrived late at work when she saw him (??? Speculative
or supported).
On this basis the arbitrator concluded that the charge
of late coming had not been proven. How he dealt with the
significance of
Mareda’s alleged admission of his late coming
to Samuels is discussed below.
15.
The arbitrator accepted that completion of the time sheets was
compulsory since March 2004 and the undisputed evidence
of Samuels
that it would take 10 minutes daily to complete the time sheets and
about 20 minutes a week if done weekly. The arbitrator
then focused
on Mareda’s claim that his workload had doubled since he took
over the function of the other audit manager who
had left. In
February 2005, he initially agreed to take over the other manager’s
responsibilities, but on 31 March 2005 he
indicated to Samuels in an
email that the pressure of managing all three teams he was then
responsible for would probably lead
him to under-perform. In his
final evaluation the arbitrator found that Mareda’s failure to
complete the time sheets was
justified given his explanation that he
did not have the time to do so and that he ‘had not received
the support of Ms Samuels
in respect of his depression caused by his
working conditions’, nor was he given the assistance he
requested in managing
the other manager’s section.
16.
There was a direct conflict between the evidence of Samuels and
Mareda as to whether the weekly template schedules had
been submitted
by Mareda or not. Samuels claims she received none over four
weeks in July 2005, whereas Mareda claims they
were completed and
were placed in an electronic folder that was accessible to everyone
and therefore could have been deleted by
anyone. The arbitrator
accepts that the fact they were missing could be explained by this
possibility and accordingly SARS had
not proved he did not complete
them.
17.
There was evidence that confirming reviews of audit work done was
very important and was essential to escape criticism
from the auditor
general and to ensure compliance with the
Public Finance Management
Act 1 of 1999
. Samuels testified that it was a simple task to sign
off a review electronically, but Mareda answered that before doing
this he
had to be satisfied with the content of each report and he
had hundreds to do on the same day. He conceded that some of the
reviews
he did not forward to Samuels for this reason.
18.
The arbitrator characterised the thrust of the charges as not
concerning Mareda’s work as an internal auditor, nor his
management of those reporting to him but simply his failure to liaise
with Samuels and not adhering to working hours. He concluded
that at
some stage towards the latter part of December 2004 or early in 2005
Samuels had made up her mind to get rid of Mareda,
citing the fact
that he was suspended again at the end of his suspension in September
2005 and hauled before another disciplinary
enquiry. He found further
evidence of Samuels’s intent in her refusal to respond
sympathetically to his change of mind about
his ability take over the
work of the manager who left. Samuels explained that because internal
audit had been restructured, taking
over that manager’s work
did not entail more work for Mareda. The arbitrator was unconvinced
by this explanation because
it begged the question what that manager
had been doing if her departure did not mean additional work for the
person taking it
over and no evidence was presented by SARS to
demonstrate this.
19.
The arbitrator dismissed criticism that Mareda failed to put aspects
of his version to Samuels when she testified, namely
that it took him
four to six hours per week to complete time sheets, or that he did
not have free access to his emails when Samuels
sent her email
confirming his admission to her that his work attendance had not
improved, and that he had too many reports to sign
off on to review
the work on TeamMate. While the arbitrator says he took these factors
into consideration he did not consider them
conclusive and had to
weigh them together with the evidence presented to him.
20.
The arbitrator explains his thinking in this regard by explaining
that the mere fact that, according to Samuels’s
email, Mareda
had conceded that he was still not keeping proper working hours but
also that he had not completed any weekly reporting
templates since
the end of June 2005, did not mean he should reject Mareda’s
evidence to the contrary on the basis that he
previously made those
admissions to Samuels. The arbitrator seems to accept that,
notwithstanding Mareda’s denial he made
these admissions, he
did so but at a time when the relationship between him and Samuels
was severely strained and they could not
be relied upon taking all
the evidence into consideration.
21.
On the matter of not confirming the review of the work of others in
his team using the TeamMate system, the arbitrator
accepted that
Mareda was carrying too heavy a workload as sufficient justification
for any failings in this regard.
22.
In summary, the arbitrator found that: the charges against Mareda in
respect of his poor work attendance and submitting
the weekly
reporting templates were not proved; in so far as he did not complete
time sheets this was justified by pressures of
work and his condition
at the time; his failure to review his team’s work was
similarly a result of those pressures.
Remedy
23.
The arbitrator adjudged Mareda to be psychologically well enough to
return to work on the strength of how he performed in the
arbitration
and noted that his prospects would improve once his name was cleared.
Moreover, Samuels had left SARS and there was
a new head of internal
audit. In the circumstances he could see no reason not to reinstate
Mareda. He also added that SARS appeared
not to have shown concern
for South Africa’s dire need for skill
Merits
of the review
Review
of finding on procedural unfairness
24.
SARS argues that the commissioner unreasonably concluded that it
ought to have notified Mareda himself of the date of
scheduled date
of the enquiry. The main basis for its submission is that when
Mareda had been trying to obtain the right
to legal representation
communications regarding the dates of the hearing had been made to
his attorneys. Thereafter it simply
continued the practice with
Magoswana whom it contends Mareda chose as his representative after
his request for legal representation
in the enquiry was refused.
25.
Another point taken by SARS is that the commissioner completely
misconstrued the disciplinary code in assuming that the
procedure for
serving the initial notice of the enquiry, which is clearly what the
code deals with, had to be followed with subsequent
adjournments and
postponements. I am inclined to agree that the provisions cited
by the arbitrator tend to suggest that the
code only dealt with the
initial notice. It was also not unreasonable of SARS to assume
that when he had appointed representatives
the notice might be
conveyed to them. However, when they realized that Mareda had not
known of the new date of the hearing, it
would have been wiser to
reconvene the hearing, notwithstanding the fact that it had conducted
the hearing in absentia, rather
than insisting on strict reliance on
a practice of notifying only shop stewards as a basis for deeming
Mareda to have received
the notice. It is true that because Mareda
did not appeal this issue did not come to light until the
arbitration, but it seems
from the evidence of Mabaso, which the
arbitrator relates in his award, that Mabaso formed the view that
Mareda did not know that
the hearing had been scheduled for 17
February 2005.
26.
In support of SARS contentions, the fact that Mareda knew of the date
of the hearing on 5 and 6 December 2005, which had
only been conveyed
to Magoswana, makes it hard to avoid the conclusion that he was in
contact with him, otherwise he would not
have sent in his sick note
excusing himself from attending on those days. Similarly Magoswana
announced himself as Mareda’s
representative the day after the
ruling of the chairperson of the enquiry notifying Mareda’s
erstwhile lawyers that legal
representation in the enquiry would not
be allowed. It is unlikely that he could have been aware of what
transpired if he had not
been advised by Mareda of the ruling.
Although he initially denied speaking to Magoswana, Mareda conceded
under cross
examination that he had contacted Magoswana after the
arbitrator’s ruling barring legal representation, but then
sought to
evade the implication that the email from Magoswana to
management shortly afterwards was prompted by his conversation with
him
about the ruling on representation, and that Magoswana’s
only plausible source of the information about the ruling was
himself.
27.
It must be noted that the evidence that SARS notified Magoswana was
could not be seriously disputed by Mareda without
calling
Magoswana to rebut it. SARS did lay a
prima facie
case that
Magoswana appeared to be Mareda’s chosen representative as a
substitute for legal representation. In the light
of this evidence,
it appears the arbitrator misconstrued who ought to have called
Magoswana as a witness. In essence, if Mareda
wished to contest that
he had not asked Magoswana to represent him nor had Magoswana
notified him of the new hearing date, in the
face of
prima facie
case tending to show the opposite, he ought to have called Magoswana
in support of these contentions as the evidentiary burden
had shifted
to him and he could not personally testify on the communications of
the employer with Mogoswana. In this respect the
arbitrator appears
not to have properly considered why SARS ought to be disbelieved
because it did not subpoena Magoswana to corroborate
its version.
In this respect the arbitrator’s reasoning was impermissible
and his finding on procedural unfairness
could be set aside on this
basis. However, because I believe that there are other grounds for
arriving at the same conclusion,
on the basis of the authority in
Fidelity Cash Management Service v CCMA & others
(2008) 29
ILJ
953 (LAC);
[2008] 3 BLLR 197
(LAC)
, at par [102], I confirm the finding of procedural
unfairness, though for different reasons, with the qualification that
the failure
of procedural fairness was not so egregious as the
arbitrator appeared to think.
Review
of substantive findings
28.
SARS attacks the arbitrator’s findings about Mareda’s
medical condition, arguing that none of the medical
documents
referred to by the arbitrator were ever put to Samuels and there was
no evidence that the employer had been notified
of Mareda’s
condition when he was still employed. It is also noteworthy that
nowhere in his evidence does Mareda place reliance
on his medical
condition as a reason for his failure to perform any of the routine
functions expected of him. Likewise in the previous
hearing on
similar charges conducted at the end of June 2005, which led to him
being suspended on final warning, there is nothing
to indicate that
he raised health issues there, whereas the arbitrator accepted
without hearing evidence that they had been problem
since the end of
the previous year.
29.
Accordingly,
SARS could hardly be blamed for not taking his health into account.
Moreover, the evidence of Mareda’s
condition was not properly
introduced in evidence by means of an affidavit from a medical
expert.
[1]
30.
This was not an incidental issue, because SARS’ supposed lack
of sympathy for his condition played a big part in
the arbitrator’s
decision that SARS had failed to take this into account when it
decided to dismiss Mareda, yet it lacked
a sufficient factual
foundation in the evidence. At the very least, one would have
expected that the available evidence ought
to have been
properly canvassed and interrogated in the arbitration given that it
played such an important part in the arbitrator’s
reasoning.
31.
The arbitrator also adjudged himself capable of assessing that
Mareda’s health problems were behind him based on
what he
observed of Mareda’s conduct in the arbitration hearing,
without this even been raised in evidence. I agree that
the
arbitrator’s treatment of Mareda’s health was handled in
a wholly irregular manner by him.
32.
The arbitrator’s finding on Mareda’s health had further
ramifications because it was one of the factors on
which he excused
his failure to complete time sheets and sign off audit reports.
33.
Another factor which excused Mareda’s conduct, in the
arbitrator’s view, was that Mareda was ‘burdened’
with a final written warning. The arbitrator’s logic in this
regard is hard to credit: the implication of his reasoning is
that a
final warning ought to be construed as a mitigating factor reducing
the blameworthiness of an employee’s misconduct
rather than an
aggravating factor which suggests that if subsequent misconduct is
committed it demonstrates that previous serious
measures to correct
behavior have failed. This is not an inference that a reasonable
arbitrator would draw.
34.
The arbitrator also inferred that Samuels had decided to get rid of
Mareda and in support of this noted that he had been
charged again on
his return to work from suspension. However, the arbitrator ignores
the fact that the fresh charges stemmed from
his continued failure to
do the very things he had just received a final written warning for.
35.
The applicant argues that as Samuels would not have chaired any
enquiry she did not have the power to make good such an
intention,
but I think this misses the thrust of the arbitrator’s
reasoning. What the arbitrator appears to have been getting
at was
that Samuels had embarked on a campaign that would hopefully end in
Mareda’s dismissal. More pertinent criticism
of this
reasoning is that the arbitrator ignored Mareda’s failure to
consider Samuels’s evidence of numerous counseling
sessions
held with Mareda before formal disciplinary measures were instituted.
36.
The arbitrator also infers that the failure of Samuels to replace the
former audit manager who left supported Mareda’s
claim that his
workload was too heavy to manage. However, when Mareda was
cross-examined on why he had not raised this issue
in the preceeding
enquiry held at the end of July 2005, when it also ought to have been
a factor affecting his failure to peform
functions then, he could not
explain this inconsistency. His only answer to this was that he had
earlier complained of a work overload
in March that year. The
arbitrator appears to have given no consideration to the fact that
this did not feature as a factor in
Mareda’s defence to similar
charges only a month earlier, which was clearly relevant to the
evaluating it when it is raised
as defence for his conduct in
the following month. Samuels also testified that the number of
persons supervised by
each manager had been reduced since the
departure of the other audit manager, and that she offered to review
Mareda’s workload
if he could demonstrate he was working a
normal day. There is no evidence that Mareda pursued the matter
further. In the
circumstances, inferring that the failure to
replace the manager who left necessarily increased Mareda’s
workload was not
a reasonable inference to draw.
37.
SARS attacks the arbitrator’s conclusion that even if Mareda
had made the admissions that were contained in Samuels’s
email
to him of 26 August 2006, these could not be relied on because
of the strained relationship between him and Samuels.
Clearly,
even if there was a strained relationship between Samuels and Mareda
it does not follow that if Mareda made admissions
about his failure
to perform certain work, that such admissions are unreliable. The
inference the arbitrator drew is clearly a
non sequitur
and as
such is unreasonable. He also declined to make an
unequivocal finding on whether or not Mareda received the email,
which was obviously an important question to decide.
38.
Further, the arbitrator simply accepts Mareda’s speculative
defence as to why his weekly reporting templates were
not
electronically stored in the folder where they should have been
filed, namely that someone else could have deleted them. No
evidentiary basis was laid for why anyone would do this, yet the
arbitrator simply accepted that the probabilities favoured this
hypothetical explanation rather than the alternative which was that
Mareda never filed them in the first place.
39.
It is clear from the above that there are serious flaws in the
arbitrator’s reasoning on substantive issues which
entail
simply ignoring relevant issues, reaching conclusions without any or
alternatively without a sufficient evidentiary foundation.
Moreover in important respects the reasoning is glaringly illogical
and for this reason the award should be reviewed and set aside.
Substitution
of the award
40.
This is a case where the parties accepted that the record was
complete and that in the event it was set aside it should
be
substituted with the court’s findings. Moreover, the
applicant’s principal witness has left its employment
which
might complicate the re-hearing of the matter, though this is not
necessarily an insuperable problem. Another important
consideration is that the events leading to the dismissal took place
five years ago and further delays in finalizing the matter
by setting
it down for rehearing at this stage are undesirable.
41.
I do not intend traversing all the evidence again in the light of the
analysis above which has highlighted the failures
in the
commissioner’s reasoning, but simply to indicate why I think
different findings are justified based on the evidence.
42.
In respect of the finding of procedural unfairness, I have some
sympathy for the arbitrator’s approach. Even if
all the
evidence is considered, there is still a question whether SARS should
simply have relied exclusively on notifying Magoswana,
when Mareda
had himself asked to be notified personally of the date of the
reconvened hearing. There was no reason for the initiator
to ignore
this request simply because as a matter of practice he was relying on
the apparent representative of Mareda to convey
such information.
Had an SMS been sent to Mareda at the number he provided, there would
have been no reason to doubt he received
the notice. If SARS
had simply acted on Mabaso’s impression, gained from his
telephone conversation with Mareda after
the enquiry
in absentia
,
that Mareda had not received notice of the enquiry, there is no
reason to suppose it could not have proceeded within a month
thereafter.
43.
Although SARS may have reasonably felt there was a practice of
notifying only the employee’s representatives and
reasonably
believed Magoswana now represented Mareda, it should not have relied
rigidly on this practice when faced with a doubt
as to whether Mareda
was notified and in the light of a failure to notify him personally
as he had requested in writing. This resulted
in him not having
defending himself at an internal hearing. It is true this might have
been remedied if he had appealed on this
basis, even though he was
not obliged to exhaust internal procedures before approaching the
CCMA.
44.
On the question of the substantive fairness of his dismissal, the
following factors appear most relevant apart from the
points made in
the analysis of the arbitrator’s reasoning above:
44.1. Mareda did not
dispute his failure to complete time sheets. In fact he rationalized
his failure to do along the lines that
it was not as important in a
non-profit organization such as SARS compared with a private audit
firm where it was important for
billing purposes. The alternative
explanation offered was that it took much longer to complete these
than Samuels had claimed.
The difficulty with the latter defence is
that when Samuels testified about the time it took to complete the
reports, she was not
pertinently challenged on this under cross
examination and it was only in his evidence in chief that Mareda
offered a wholly contrary
version of the time it took. Where a
party does not test their contrary version with the appropriate
witness, they cannot
expect the adjudicator to attach equal weight to
their version.
44.2. There was no
evidence to support his claim that he did file the weekly templates
as required. The hypothetical explanation
that they must have been
deleted by some unknown person cannot be accepted in the absence of
evidence tending to show why someone
might have had a grudge against
him.
44.3. The evidence showed
that he did not sign off on audit reports on the TeamMate system.
Mareda did not dispute this but offered
in his defence that work
pressures made it difficult to do this. However, if it was a major
consideration it is inconceivable that
he would not have made an
issue of it at the hearing into the same type of alleged misconduct
in late June 2005. For this
reason I am disinclined to believe
it was in fact the reason he did not do this work.
44.4. The only charge on
which the evidence seems evenly balanced is whether his work
attendance improved. In the circumstances,
it must be accepted that
the employer did not discharge the onus of proving the charge.
45.
Accordingly, I am satisfied that Mareda was guilty of charges 1(b),
(c) and 2.
46.
As to the appropriate sanction, the fact that Mareda had received a
final written warning for the same misconduct only
a month previously
indicates that it had little impact on the performance of the duties
in question. The arbitrator felt that the
duties under consideration
did not detract from his abilities and potential as an auditor. That
may well be so, but the arbitrator
failed to appreciate the point
that Mareda was in a senior supervisory position and it cannot be
said that the various reporting
functions he was expected to perform
were not an important part of that supervisory role and he had not
addressed these shortcomings.
When an employee assumes
managerial responsibilities, their degree of accountability increases
and it should not be necessary to
repeatedly remind them of those
responsibilities. It cannot be said that the previous warning
had any demonstrable effect
on Mareda’s performance of the
function he was failing to fulfill. In the circumstances, it is
difficult to see on what basis
SARS could continue to have confidence
in him properly performing the managerial function he was tasked
with, even if he was skilled.
I do not think that the decision
to dismiss Mareda, given his disciplinary history and wasted
opportunities to rectify his performance
was unfair in all the
circumstances.
Compensation
47.
In view of the findings above, it remains only to determine what
compensation if any Mareda ought to get for SARS failure
to notify
him of the last date of the hearing, or for failing to reconvene the
enquiry when it seemed apparent to the initiator
that Mareda did not
know of the enquiry date. I accept that there was no stratagem
on the part of the employer to thwart
Mareda’s right to
representation or to attend the hearing, but equally the matter could
have been easily remedied, when SARS
was alerted to the problem.
At the same time, if Mareda had made an issue of it by lodging an
appeal in which he raised the
issue there was a better chance it
could have been remedied earlier. In the circumstances, I don’t
think that more than half
a month’s salary is justified as
compensation.
Order
48.
In the light of the analysis above, the following order is made:
48.1. The arbitration
award of the Second Respondent is reviewed and set aside .
48.2. The Second
Respondent’s finding on the substantive unfairness of the third
respondent’s dismissal is substituted
with a finding that his
dismissal was substantively fair.
48.3. The Second
Respondent’s finding that the third respondent’s
dismissal was procedurally unfair is confirmed for
the reasons stated
above.
48.4. The applicant is
ordered to pay the third respondent amount equivalent to half his
monthly remuneration calculated as half
of R 29884-00, being R
14,942-00, less any tax and statutory deductions, by 30 November
2010.
48.5. No order is made as
to costs
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 22 September 2010
Date
of judgment: 9 November 2010
Appearances:
For
the applicant: Ms F Van Rooi D Vetten, instructed by Darryl
Furman Attorneys
For
the respondent: Mr M V Sehunane instructed by Ranthako Khumalo
Attorneys
[1]
See e.g.
Mgobhozi
v Naidoo NO & Others
(2006) 27
ILJ
786 (LAC)