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[2010] ZALCJHB 40
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NPCC Cleaning Contractors v Commission for Conciliation Mediation And Arbitration, Bloemfontein and Others (JR965/08) [2010] ZALCJHB 40 (23 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO: JR965.08
In
the matter
between:
NPCC
CLEANING
CONTRACTORS
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION,
BLOEMFONTEIN
First
Respondent
COMMISSIONER
MPE NGCOSANE
N.O.
Second
Respondent
HOTELICCA
obo M C
NTSALLA
Third
Respondent
JUDGMENT
TIP AJ:
[1]
This is an application which came before me
on an unopposed basis to review and set aside an award made by the
second respondent
(“the Commissioner”) dated 19 March
2008. The award dealt with the dismissal of the third
respondent employee
(“Ms Ntsalla”) who had been employed
as a cleaner and was dismissed for unauthorised absenteeism and for
disregarding
a lawful and reasonable instruction, namely that she was
not to depart on leave, pending further processing of her
application.
[2]
After the dismissal, Ms Ntsalla lodged an
appeal, which was not concluded. She then referred a dispute to
the first respondent,
being the CCMA Bloemfontein. The
Commissioner held that the dismissal was substantively unfair and
ordered the employee’s
reinstatement together with compensation
of R4,996--.
[3]
The applicant provides cleaning services
and has a number of long term contracts with banks to provide such
services. One
of the banks is First National Bank, which has
strict requirements in respect of the checking and approval of
cleaning personnel.
There are obvious security reasons for
this. This entails that all the applicant’s employees
undergo thorough security
checks including fingerprint vetting with
any previous convictions being investigated. Checks of this
nature take some time
and it is for that reason that the applicant
requires as a general rule that applications for leave must be made a
month in advance
in order that replacement employees for the leave
period can be checked in the same way. Evidence outlining this
background
was placed before the Commissioner who, as set out below,
did not accept that this process had been communicated to Ms Ntsalla.
[4]
Mr Coetzee is the applicant’s area
manager. He gave evidence that he and the national manager, Mr
Prinsloo, had on 25
October 2007 gone to the bank branch where Ms
Ntsalla was working for a meeting. Ms Ntsalla then advised them
that she wished
to take leave from the next day, but was told that
she hadn’t applied for leave in time and that she couldn’t
go as
from the next day. Instead, they said to her that they’d
come back on Tuesday 30 October and see what could be done.
Ms
Ntsalla was instructed to bring with her on the Tuesday a replacement
worker so that police clearance could be sought on an
urgent basis.
However, when the two managers went to the bank on that Tuesday the
applicant had already gone on leave and
a casual worker, who had
undergone no clearance, was found working in her place. Ms
Ntsalla had gone away on 26 October and
returned to work on 5
November 2010. Enquiries showed that the casual worker in
question was a second level replacement,
in the sense that Ms Ntsalla
had arranged for a substitute who had in turn requested another
casual to do the work. The applicant
was able to ameliorate the
security position by obtaining urgent police clearance for the casual
worker and by satisfying the bank
that this had been done.
[5]
According to Mr Coetzee, Ms Ntsalla was
well aware of the procedures. In particular, she was well aware
of the importance
of police clearance. Indeed, during the
meeting with Ms Ntsalla at the bank on 25 October, one of the bank
managers (“Lucky”)
had joined them and had also
underlined this aspect. Ms Ntsalla had been reminded that if
she went on leave without authorisation
she would be disciplined and
could lose her job.
[6]
In her evidence, Ms Ntsalla said that she
had obtained approval for her leave from Mr Coetzee five days before
she went away.
This was denied. Moreover, this had not
been put to Mr Coetzee during cross-examination and was objected to
when tendered
in evidence. That difficulty aside, it is in my
view inherently improbable that Ms Ntsalla would have approached her
managers
about leave on 25 October 2010 if that leave had already
been approved.
[7]
Ms Ntsalla testified also that a copy of
the ID document of the replacement casual worker had been given to Mr
Coetzee. This
too had not put. It was denied and should
not have been entertained as admissible. In further testimony,
Ms Ntsalla
said that she had explained that she needed the leave
because her child was ill. This, similarly, had not been put
and was
denied. The applicant added that, if Ms Ntsalla had
done so, the company’s family responsibility leave policy would
have been applied. There was also evidence from Mr Loudon,
whose involvement is dealt with more fully below, that Ms Ntsalla
had
testified at the disciplinary enquiry that she had made no mention of
her child being ill because the company had never asked
about that.
[8]
Significantly, Ms Ntsalla confirmed that
she knew that banks were very strict about who was employed there for
cleaning work.
She also confirmed that Mr Coetzee had told her
that she must arrange for a replacement to come in on Tuesday 30
October.
At its lowest, this evidence provides corroboration
for the applicant’s version that she had been clearly told that
she was
not to go on leave with effect from Friday 26 October and
that the position would be taken further on the following Tuesday.
[9]
The record shows that the Commissioner was
concerned from time to time to offer prompts to Ms Ntsalla,
notwithstanding that she
was represented by a union official.
The Commissioner was also not content to apply the ordinary rules
regarding testimony
that had not been put to the company’s
witness. Instead, the Commissioner insisted that Mr Coetzee
should be recalled
after Ms Ntsalla had completed her evidence.
This was done and Mr Coetzee then confirmed his denial of the
contested portions
of Ms Ntsalla’s evidence, aspects of which I
have outlined above. The record shows that the Commissioner
raised no
further queries about this with Mr Coetzee. If
anything, it appeared that he accepted this clarificatory testimony.
[10]
Mr Coetzee was not the only company
witness. Its first witness was Mr Loudon, who has played a
multi-faceted role in this
matter. He is an official of an
employer’s organisation of which the applicant is a member.
In that capacity,
he was brought in to chair the initial disciplinary
enquiry and, hence, it is he who found Ms Ntsalla guilty of the
charges against
her and recommended that she be dismissed.
Then, in the arbitration proceedings, Mr Loudon appeared for the
applicant.
He gave an opening statement. He gave
evidence. He led the evidence of Mr Coetzee. He conducted
the cross-examination
of Ms Ntsalla. He presented the closing
argument.
[11]
There was at no stage any objection to the
performance by him of these various functions. Notwithstanding
that, it is patently
most undesirable that this approach should have
been adopted. It is essential that the chairperson of a
disciplinary process
should not only be independent but that he
should also be seen to be independent. It is his role to weigh
up and decide rival
contentions as presented by the employer and by
the employee and do so impartially. That need for independence
does not come
to an end once the enquiry has been concluded and
demonstrations of partiality after the event may well taint the
enquiry
per se
.
To appear for the employer in a subsequent process, as has happened
in this instance, can do nothing to promote a sense
of confidence
that the requisite independence was present.
[12]
However, the core evidence in this case
does not in any material way depend on the position of Mr Loudon.
The direct account
of events does not come from him, but from Mr
Coetzee and Ms Ntsalla. Mr Loudon’s testimony in the
arbitration was
confined to an account of the proceedings in the
initial enquiry. The Commissioner chose to disregard all his
evidence, but
on the basis that it was hearsay. That was an
incorrect approach and shows a lack of appreciation of the nature and
evaluation
of evidence. However, nothing much turns on this
aspect of the matter.
[13]
Of more moment is the manner in which the
Commissioner dealt with the direct evidence, the key elements of
which are as follows:
[13.1]
In the first place, it was accepted by him
that there was a rule governing applications for leave, as described
by the applicant.
This correctly reflected the undisputed
evidence of Mr Coetzee and the documentary material.
[13.2]
The Commissioner then addressed the
question whether Ms Ntsalla was aware of the rule and concluded that
she was not. In doing
so, he apparently had no regard to the
clear statement of this requirement in the applicant’s ‘leave
procedure’
policy, which forms part of the terms and conditions
of employment. Instead, he held that the company was obliged to
have
presented a previous leave application form signed by Ms Ntsalla
as proof that she knew of the rule. No such form had been
submitted in evidence and, essentially on this basis, the
Commissioner found that Ms Ntsalla was not thus aware. That was
an irregular approach on the part of the Commissioner. The
notion of a previous signed form was not traversed at all in the
proceedings. It surfaced for the first time in the award.
[13.3]
Not only did the Commissioner ignore the
policy document, he also gave no weight to the explicit oral evidence
of Mr Coetzee that
Ms Ntsalla knew of the requirement. He
preferred her version that it was the practice merely to ask five
days in advance.
No sound reason is to be found in the award
for this assessment of the evidence. A further feature of the
evidence which
it ignores is that the company’s evidence that
Ms Ntsalla was aware of the procedure was not challenged during
cross-examination.
[13.4]
It seems that the Commissioner was a good
deal influenced by his view that Ms Ntsalla had been granted leave
for 26 October 2007,
but that view did not fully reflect the
evidence. It is so that Mr Coetzee testified that Ms Ntsalla
had, on 25 October,
initially asked to be allowed off for the
following day. In the belief that this was for the purpose of
regular medical treatments
which he knew Ms Ntsalla had to receive,
he responded that this could be done and that he would arrange for a
replacement.
It then became apparent that Ms Ntsalla wanted
leave for the whole of the following week as well (and that her
request for leave
on the following day was not for treatment but was
simply the first day of that leave period). Once that became
clear, her
request was refused, subject to it being further addressed
on the following Tuesday. Properly construed, in my view, this
evidence does not amount to a ground for preferring the evidence of
Ms Ntsalla and for holding that she was not aware of the rule
relating to leave applications. It certainly cannot amount to
support for the conclusion that leave could be taken without
approval.
[13.5]
On the basis of his reasoning as outlined
above, the Commissioner correspondingly held that because Ms Ntsalla
was unaware of the
rule, she couldn’t have broken it. On
the facts, that is an unsound result. In logic, it is a
non
sequitur
.
[13.6]
The Commissioner further posed the question
whether the rule was consistently applied. In addressing that
question he did
not meaningfully deal with issues of consistency.
Rather, he held that Mr Coetzee had reneged from his usual practice
not
to require application forms or ‘pretended’ not to
know about the practice, apparently because he was in the presence
of
his national manager. These are conclusions based on an
unwarranted evaluation of the evidence, in the course of which
the
Commissioner at one stage plainly indicated that he considered Mr
Coetzee to be a reliable witness, but in his evaluation treated
him
as a person willing to give false testimony.
[13.7]
A final question which the Commissioner
examined was whether dismissal was a fair sanction in the
circumstances. He concluded
that it was not, because it had not
been shown by the company that Ms Ntsalla knew of the rule, that she
had broken it and that
it was in any case not consistently applied.
This was a curious question to pose. It should only have arisen
if the
finding of guilt on the first or second charges had been
upheld by him. But the conclusions reached by the Commissioner
point
to there being no finding of guilt – although the award
does not squarely state as much. The analysis, it must be
observed,
falls well short of being precise.
[13.8]
Finally, the Commissioner turned to the
second charge, being the one of gross insubordination in that Ms
Ntsalla proceeded to go
on leave despite two senior managers having
expressly instructed her that she could not do so at that stage.
He dealt with
it in these terms: “
Due
to the fact that the [company] had failed to discharge the onus on
the first charge, the second charge fell away based on the
inferences
I have drawn on the first charge.
”
[13.9]
This reasoning on the relationship between
the two charges is slender. The inferences drawn by the
Commissioner on the first
charge were that it had not been proved
that Ms Ntsalla was aware of the rule on leave applications and that
she could therefore
not have broken that rule. The second
charge, however, presents no scope for inferences of that sort.
It is a charge
that turns on an unqualifiedly factual issue, namely
whether or not Ms Ntsalla disobeyed an instruction not to go on leave
until
that matter had been further processed. In these
circumstances, the Commissioner entirely misdirected himself in
concluding
that the second charge had fallen away. It had not
and it required a determination, which task the Commissioner omitted
to
perform.
[14]
Having regard to the considerations
outlined above, I am satisfied that the applicant has made out a
sufficient case for the review
and setting aside of the
Commissioner’s award, albeit that it is not an impeccable case
and was in part based on a transcription
record which was far from
exemplary. Ultimately, though, the decision I must make is
whether or not the Commissioner’s
reasoning and determination
have been shown not to be within the zone of being reasonable and
acceptable. In my judgment,
for the reasons given, the
applicant has demonstrated that case. The application succeeds
and the award must be set aside.
[15]
In the interests of finality, costs and
convenience, I agree with the applicant’s submission that it
would be to the advantage
of none of the parties for this dispute to
be referred back to the first respondent for a fresh round of
arbitration. There
are decisive features in the record and no
good purpose would be served by having them recycled yet again.
Accordingly, in
the exercise of the discretion which I enjoy, I am of
the view that I should substitute my own conclusions for those of the
Commissioner.
They are that the charges against Ms Ntsalla were
established, that the operational requirements of the applicant are
of such a
nature as to justify a consequential dismissal, and that
the initial disciplinary outcome should therefore have been upheld.
[16]
I accordingly make the following order:
[1]
The award made by the second respondent on
19 March 2008 under CCMA
case number FS6066-07 is hereby reviewed and set aside.
[2]
The following determination is substituted
for that made by the
second respondent: “The dismissal of the applicant is
determined to have been substantively fair and
is accordingly
upheld.”
[3]
There is no order as to costs.
______________________________
KS
TIP
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
28 September 2010
DATE
OF JUDGMENT:
23 November 2010
FOR
APPLICANT:
Mr C J Geldenhuys
of
Geldenhuys C J @ Law Inc