About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2010
>>
[2010] ZALCD 23
|
|
Totalgaz Southern Africa (Pty) Ltd v Ngobese and Others (D722/09) [2010] ZALCD 23 (17 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
CASE
NO. D 722/09
Not
Reportable
In
the matter between:
TOTALGAZ
SOUTHERN AFRICA (PTY)
LTD
APPLICANT
And
THERESA
NTOMBIFIKILE NGOBESE
FIRST
RESPONDENT
B
PILLEMER
N.O
SECOND RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
& ARBITRATION
THIRD
RESPONDENT
JUDGMENT
CELE
J
Introduction
[1] In
this application it is sought to have an arbitration award dated
18 August 2009 issued by the second respondent, as
the
commissioner of the third respondent reviewed and set aside in terms
of
Section 145
of the
Labour Relations Act 66 of 1995
, hereafter
referred to as the Act. In the event of the order sought being
granted, the applicant simultaneously seeks to be granted
an order
that the dismissal of the first respondent by the applicant was both
substantively and procedurally unfair. The first
respondent opposed
this application in her capacity as the erstwhile employee of the
applicant in whose favour the arbitration
award sought to be assailed
was issued.
Background facts
[2]
The first respondent, Miss Ngobese, commenced her employment with the
applicant on 1 October 2005 as a sales representative
in a gas
selling business of the applicant. Her job was essentially that
of finding new customers to whom gas would be sold.
There were two
types of customers. There were those that were on contract,
contracted customers and those that were buying
from the shelf
without a contract. Once customers were found, they then had to
be maintained by sales representatives.
Miss Ngobese used her
motor vehicle in the performance of her functions and had thereafter
to fill a claim form so that she could
be compensated for such use.
[3]
Miss Ngobese reported to Mr Gerrit Booysen who was a manager of the
applicant. She also worked with a lady by the name
of Miss
Xoliswe Ntse who was the applicant’s human capital manager.
There are sales targets that were set by the applicant
for its sales
representatives to meet.
[4] On
27 March 2008, Mr Booysen issued an email message instructing Miss
Ngobese to spend all her time with L P Gas to investigate
why the
applicant’s sales volumes had declined, that is they were very
low. She had then to spend time with sales representatives
of
the applicant to determine why they were losing sales volumes.
[5] On 9 May 2006, Miss
Ngobese was subjected to a disciplinary hearing, facing charges of
misconduct described as:
1.
Non-performance/non-achieved objectives.
2.
Excessive traffic fines/non-conformant with
company policy, and
3.
Non-adherence to submission of reports.
[6]
was found guilty of the charges and issued with a final written
warning for the first two offences, and a written warning for
the
third offence.
[7] 5 June 2006, the
sales representatives of the applicant had a staff meeting.
Minutes were captured for the meeting that
was held. From that
meeting a further instruction was issued by Mr Booysen, which is
encapsulated in these proceedings in
the following expression:
"The
way forward: assist clients with added effort. Do not
sign any new client with the current problem we are
having with the
shortage of LPG and cylinders
.”
[8] 28 July 2006, Mr
Booysen issued a further instruction through an email message which
is encapsulated in the following manner:
"With
expected shortages we will look after our contracted clients and see
to it that they get product. We will not deliver
to
uncontracted clients and neglect the committed ones
.”(sic)
[9]
The applicant was subsequently charged with acts of misconduct and
she was placed on suspension and was subjected to a disciplinary
hearing. This was on or about 18 September 2006. She was
found to have committed those acts of misconduct with which
she had
been charged.
[10]
the commencement of these proceedings, I enquired from the
representative of the applicant, Mr Bikwani, as to what period was
covered for that misconduct, and the charges themselves, what charges
they were. Initially he informed Court that the period
for
which she had been charged stretched from October 2005 to August
2006, October 2005 being the date on which she commenced her
employment. I pointed out to him that it could not be because
there was then another charge of Miss Ngobese which is the
subject
matter of paragraph 3.3 of the arbitration award. He
subsequently indicated to me that the first charge, therefore,
as
contained in 3.3 of the award, covered the period October 2005 to May
2006, and that the misconduct for which we are here, stretched
then
from May 2006 to September 2006.
[11] It was my concern,
as I raised it, to know what periods were covered because I could not
find a charge sheet, as is normally
the case, that would have been
served onto Miss Ngobese. It has been conceded in these
proceedings by Mr Bituane that no
formal charge sheet was drawn.
He then referred me to page 36 of the record Volume 1, that contains
the notice of suspension.
Paragraph 2 of that notice reads:
"You must at all
times be available for the disciplinary enquiry that will be
confirmed with you in writing. Reasons
for suspension:
non-performance, fraudulent kilometre report (company vehicle).”
And
then what appears after that is, “suspension issued by.”
[12]
this file I was unable to find a charge sheet as is commonly done
which would inform the employee of the full allegations in
the form
of the dates during which the act complained of took place, the
description or full descriptions to the best that one
can of the acts
of misconduct that are complained of, and the manner in which such
misconduct was perpetrated. It would appear,
therefore, that no
formal charge sheet was drawn. Unfortunately this appears not
to have been picked up by the second respondent
as she did not even
really list or identify the charges, as one would normally find it
being done. But that is not her fault.
She had to proceed
with the matter as it was presented to her.
[13]
As I have indicated Miss Ngobese was then found guilty of the charges
which it would seem would, therefore, be those of non-performance,
fraudulent kilometre report, as appear in the notice of suspension.
It does not appear that any document was furnished to
her which fully
described charges. She was found guilty of these charges and
was dismissed by the applicant. She was
aggrieved by the
dismissal and then she referred an unfair dismissal dispute for
conciliation. Conciliation failed to resolve the
dispute. She
then referred the dispute to arbitration in which instance the third
respondent, Commissioner Vis Perumal, was
appointed to arbitrate the
dispute.
The
chief findings by the third respondent
[14] It is apposite to
read the paragraph entitled “Analysis and Argument” which
begins at paragraph 8 of the award,
and it reads:
"During 2006
there was a gas and cylinder shortage. Booysen had given an
instruction to applicant not to pursue new clients
and had given
applicant alternative duties. There was no evidence that
Booysen changed his instruction. Applicant testified
that he
had not done so. In the absence of Booysen’s evidence to
negate applicant’s evidence, I accept the applicant’s
evidence and reasons she has given for not achieving targets during
May 2006.
A disciplinary hearing
was held on 9 May 2006 and applicant, amongst other charges, was
found guilty of non-performance/non-achieved
objectives. She
was given a final written warning.
During June and July
2006, applicant was instructed not to recruit further clients and
yet, as early as September 2006, she was
again charged for not
achieving her targets. This appears to be unfair to charge her
so soon after the first hearing when
there had been an instruction in
between not to find further customers.
I accept applicant’s
version that she may have made some mistakes while using the
computer. She said that she paid for
any excessive mileage.
There would be no reason for her to deliberately provide incorrect
information.
In the circumstances
the respondent has not proved misconduct. It follows that the
dismissal of the applicant was substantively
unfair.
The
applicant asked for reinstatement, and in the circumstances is
entitled to that remedy. The date of the dismissal was
18
September 2006. The applicant earned R8 000 per month at
the time of her dismissal. She is entitled to arrear
salary in
the amount of R280 000, being R8 000 x 35 months’
salary from 18 September 2006, the date of dismissal,
until 18 August
2009, the date of the award.”
[15]
The third respondent then found or declared the dismissal to be
substantively unfair and ordered the applicant to compensate
the
first respondent in an amount of R280 000 within 21 days of
being notified of the award. The applicant was directed
to
report to work within three days of being notified of the award. The
applicant came to know of the
award and was
aggrieved thereby. It then initiated the present application.
Submissions
[16]
Essentially this application is based on an averment that the third
respondent misdirected herself by relying incorrectly upon
evidence
submitted by the first respondent, stating that she had allegedly
received an instruction from her superior, in terms
of which she was
not to secure new customers, whilst ignoring or taking inadequate
consideration of the applicant’s evidence
that such
instruction, had it been stated, was qualified in duration and was
not applicable for the entire duration of the first
respondent’s
employment with the applicant, which would have been approximately 12
months, to which the charge of non-performance
related, and hence
that first respondent’s evidence was challenged in this regard,
and should thus not have been accepted
nor relied upon by the third
respondent.
[17]
It was further submitted that the third respondent committed an
irregularity while claiming that there was no evidence to the
effect
that Booysen changed the instruction. Evidence was led, under
cross-examination, that it would have been improper to have
charged
the first respondent if instruction endured until August 2008, and
deponent testified that the instruction lasted for two
weeks only.
It is further submitted in these proceedings that at application
hearing, the version was put to deponent that
it was the first
respondent’s version that instruction endured up to August
2006. The deponent, who was
the witness,
disputed that version, and under re-examination the witness confirmed
that the instruction was lifted by 16 May
2006.
[18]
It is further submitted by the applicant that the applicant was able
to prove that the first respondent’s misconduct
provided the
three examples of the first respondent’s absence at work that
were undisputed by the first respondent, but which
third respondent
failed to apply her mind to in arriving at a conclusion. And
three instances in this regard were identified.
Firstly, the
first respondent went to run a marathon in Cape Town without taking
authorised leave, and when asked, she told her
manager that she had
de-stressesed– she de-stresses through road running.
Secondly, she claimed to have gone to see
a doctor, and when asked
for a sick note, she told her manager that the doctor did not want to
give her a sick note, but she claimed
to have had a breakdown with
the company car and called the dealership to tow her car away, but
when asked to produce documentation
to prove the breakdown, she
claimed that the documents were lost in her car.
[19] A
further submission is that the third respondent, by her own
statement, found that the third respondent’s evidence was
difficult to follow, notwithstanding the aforementioned, she accepted
all of the evidence of the third respondent as unchallenged,
including, but not limited to the third respondent’s statements
that she was not aware of the format of reporting or had
difficulties
with her computer, where there was no documentary evidence provided
by the third respondent to corroborate same.
[20]
There
is a plea in the alternative, it relates to the sanction in the event
it is found that there was proof that the dismissal
was substantively
and procedurally unfair, the submission being that the third
respondent committed a gross irregularity in failing
to appreciate
that the remedy of reinstatement would not be the appropriate
sanction where there are compelling reasons, as the
first respondent
was dismissed some three years previously, and it would thus be
untenable for her to commence employment with
the applicant where
that position has been filled and is currently occupied, and that the
applicant has no further positions available
in the area. So
much for the grounds of review, basically.
[21]
The first respondent opposed the application to review the award.
Essentially, in opposing this application, it is suggested
that the
third respondent properly approached this matter and properly
assessed the evidential material that was before her.
The case
of the first respondent was that there was a shortage of the product
and as a result the manager issued an instruction
that they should
not get any new clients as shown in the minutes of the staff of 5
June 2006. The instruction was reiterated
in the email of 28
July sent by Mr Booysen.
Evaluation
[22]
The Court is then referred to the record and the exchanges that took
place. The Court has taken particular note of that.
I
return then to the submissions and the analysis. The first
concern I raised at the beginning of this enquiry with Mr Bikwani
is
that an employee who is alleged to be failing to perform as is
required by the employer is normally subjected to an incapacity
hearing. This appears not to have been the case, on the
contrary she was subjected to a disciplinary enquiry.
[23]
An incapacity hearing takes a formal hearing where the line manager
or the person in charge sits down with the employee, identifies
the
problems, put timeframes for compliance; where it is necessary, the
employee is then subjected to training and re-training
depending on a
need and the position of the employee. There would be further
sessions of counselling or of sitting down with
an employee,
identifying progress, if any, that has been made; where none has been
made, such is indicated to the employee and
warnings are then issued
of the likely drastic steps that might be taken.
[24]
Various remedies are applicable when it comes to incapacity
hearings. For instance, an employer might decide to place
the
employee in another position where one is suitable. It might
even be necessary, where it is applicable, for instance,
to demote
the employee or to put certain conditions under which the employee
has to work and perform.
[25]
All of these have not been followed, or as has been suggested by Mr
Bikwani, it is suggested that there were times when Mr
Booysen sat
down with that respondent, but as I have indicated these are formal
sessions, there would be minutes kept for such
sessions as
counselling sessions, and progressively, from one meeting to another,
one refers, or makes a cross-reference to what
happened before, as a
means of checking whether there was progress or not. That was
not followed.
[26]
Instead the third respondent was charged with an act of misconduct,
to the extent that there is a suggestion that she was charged
for a
period of about a year, as I have just read in the founding affidavit
containing the grounds for review. That would
have been an
anomaly because she had already been charged as appears in the
arbitration award, paragraph 3.3 thereof. Normally,
she could
not be charged twice for acts of misconduct for which she had been
charged, found guilty and punished.
[27]
It must, therefore, be clear that she could only be charged for any
acts of misconduct that would happen subsequent to the
charging, that
would, therefore, in this instance be from May up to a period of
August. That period coincides with the time
when Mr Booysen
issued instructions to scale down on recruiting new customers.
[28]
Now the version of the applicant is that that instruction was meant
to last for two weeks and was thereafter withdrawn.
It is
regrettable that Mr Booysen was not available to testify.
Miss Ntse testified. I do not know in what position
she
features in an instruction that would have been issued by Mr Booysen
to be carried out by the sales representatives, whether
she had
personal knowledge of what transpired, I do not know. However,
it was incumbent on the applicant to produce proof,
even at this
stage of the withdrawal of the instruction.
[29]
Miss Ntse’s evidence was a mere bold statement made when she
testified. One has to take note of the fact that the
third
respondent did not just speak of the issue of instruction for her to
stop recruiting new customers, she produced documentary
proof.
It suggests from that document which is not contested, that the
applicant wanted to conduct its affairs through written
instructions. One, therefore, would have expected that the
withdrawal of a written instruction would have been in writing,
or
even if verbal, it could have been captured in a meeting, such as was
the case in the minutes that were captured in this case
in the
meeting held on 5 June 2006.
[30]
The evidence of Miss Ntse is unclear as to how the applicant went
about withdrawing the instruction that was issued, firstly.
Secondly, that evidence is unclear as to why she said the instruction
was to last for two weeks, because the instruction does not
say so.
The basis on which she made this statement is just unfounded.
[31] I
have entered the area of looking at the evidential material, not
because I want to substitute the decision of the third respondent,
but I did so with a view to investige whether or not there was any
defect in the award when the reasons for the award are seen
against
the evidence that was tendered during the arbitration hearing.
[32]
The third respondent has also looked at the aspect of the recording
of the claims and the … [indistinct], she dealt
with that.
She applied her mind to it. This appears in paragraph 8.4 of
the award.
[33] I
am unable to find any defect as is alleged in these paper before me,
having been committed by the third respondent.
On the contrary,
and within the ambit of
Section 138
of the Act, she issued an award
in a simple way that gave brief reasons, as expected of her.
This award shows that she applied
her mind to the evidential material
that was before her. She did look at the evidence of Miss Ntse
and she found it wanting,
and as I have also looked at it and found
it wanting. It must be remembered that making a bold statement
without any support
for it, when testifying, is a risk that a witness
takes that that version may be found wanting in credence or in
evidential weight,
as was the case presently.
[34]
This then brings me to the conclusion that, indeed, the applicant
failed to prove that the dismissal of Miss Ngobese was substantively
fair.
[35] The next aspect to
look at relates to the sanction. I must remind myself that Miss
Ngobese had been found to have been
dismissed without any sound
reasons, there was no substantive reason. The next question
then relates to the remedy that was
available to her.
Section
193
of the Act then kicks in. It reads, to the extent that it
is relevant in these proceedings, 193(2):
"The Labour Court or
the Arbitrator must require the employer to reinstate or re-employ
the employee unless
(a) The employee
does not with to be reinstated or reemployed.
(b) The circumstances
surrounding the dismissal are such that a continued employment
relationship would be intolerable.
(c)
It
is not reasonably practicable for the employer to reinstate or
re-employ the employee, or
(d)
The
dismissal is unfair only because the employer did not follow a fair
procedure.”
[36] Very briefly, about
this provision, one finds the decision in
Kroukamp v SA Link
(Pty) Ltd
by ZONDO, JP, as he then was,
[2005] 12 BLLR 1172
(LAC)
at paragraph 116, the following appears:
"The
absence of a discretion on the part of the Labour Court or an
Arbitrator to deny reinstatement to an unfairly dismissed
employee,
in the absence of any one of the situations set out in
Section
193(2)
must be understood against the background that reinstatement
was made a statutory primary remedy in unfair dismissal disputes, in
return for Organised Labours agreement that there should be a capping
of compensation that could be ordered to unfairly dismissed
employees.”
[37]
It is, therefore, clear that when the third respondent ordered
reinstatement, she was giving Miss Ngobese a primary remedy
available
to her in terms of the Act. She had to check on whether or not
anything stood in the way for the reinstatement
of the
employee. Miss Ngobese had not said that she did not want to be
re-employed. On the contrary, she wanted
that remedy.
[38]
There was no evidence at the hearing that a continued employment
relationship would be intolerable. It must be remembered
that
for that finding to be made, there had to be evidence led at the
hearing. As to the question whether or not it was reasonably
practicable for the employer to reinstate or re-employ, again, there
had to be evidence led during the hearing of this matter.
Such
was not led. At the moment, and even in review proceedings, I
have the power to revisit that.
[39]
The only submission made in this regard is that the post occupied by
Miss Ngobese has now been filled. Now that is not
a good enough
reason. If it were a good enough reason, it would simply mean
that each time an employer dismisses an employee,
the post had to be
filled quickly, so that even if the employee finds an order in his or
her favour, already the post is filled.
That is not good
enough.
[40]
The filling of a post when the employer knows very well that the
dismissal is being challenged should, therefore, not be used
as a
tool in favour of the employer. It would mean that the employer
is allowed to benefit from its own mistake.
[41] I
consider the fact that the dismissal took place quite some years ago,
the dismissal took place in 2006, we are now in 2010.
This is
the primary remedy. I see no reason why the employer should not
welcome Miss Ngobese back. There are ways and
means of dealing
with a situation, for instance when an employer finds that it has
excess employees. The Act is available,
it must be complied
with.
[42] In my view:
1.
The application to have an arbitration award dated 18 August
2009 issued
by the second respondent, reviewed and set aside, is
dismissed.
2.
The applicant to pay costs thereof.
______________
CELE
J
DATE OF
HEARING
: 17
November 2010
DATE OF
JUDGMENT
: 17
November 2010
APPEARANCES
FOR
APPLICANT
: Mr. M
BIKWANI of TOTALGAZ
SOUTHERN
AFRICA (PTY) LTD
FOR
RESPONDENT
: Mr. P.O
Jafta of JAFTA INC.