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[2011] ZALCJHB 143
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Coin Security Group (Pty) Ltd v Makola and Others (JR 910/06) [2011] ZALCJHB 143 (22 July 2011)
COIN
SECURITY GROUP (PTY) LTD V FRANK MAKOLA, SMANGA TOLI N.O. & CCMA
– CASE NO.: JR 910/06 – Simultaneous hearing
of
application in terms of Rule 11 & a Review application
IN THE LABOUR
COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.: JR 910/06
Not
Reportable
In the matter between:
COIN SECURITY GROUP (PTY) LTD
..................................................
Applicant
and
FRANK MAKOLA
...............................................................................
1
ST
Respondent
SMANGA TOLI N.O.
...............................................................
2
ND
Respondent
CCMA
.......................................................................................................
3
RD
Respondent
JUDGMENT
CAWE
AJ:
Introduction
[1] The present application was brought for the
simultaneous hearing of:
a)
An application in terms of Rule 11 brought by First Respondent
and
b)
a review application brought by the Applicant
[2]
Both matters had previously been removed from the roll as there had
been no action on the part of the Applicant in pursuing
the review
application.
[3]
After hearing presentations on the Rule 11 application I proceeded to
hear the review application in order to curtail proceedings
and to
deal with both when I deal with the merits of the review.
[4]
The review application is to set aside the award rendered by the
Second Respondent (the Commissioner) under case number GAJB
25309/05.
The application is opposed by the First Respondent.
The Facts
[5]
The First Respondent was employed by the Applicant as a Project
Manager. Before he commenced employment with the Applicant,
he was
employed by Chubb Security. He worked at Chubb Security as a Project
Manager. First Respondent worked for approximately
8 years for Chubb
Security.
[6]
On or about the 18
th
July 2005, he was suspended by
Johannes Frederick Myburgh, the General Manager: Mid-East Area,
Gauteng. This was pending an investigation.
The investigation was
conducted by the Branch Manager, Mr Dick.
[7]
At the conclusion of the investigation, he was notified to appear at
a disciplinary enquiry for purpose of answering to allegations
of:
dereliction
of duty;
disobeying
a lawful and reasonable instructions;
contravention
of the Armed and Ammunitions Act, Act 75 of 1996;
deviation
from standing operating procedures;
poor
work performance;
fraud
and falsification of standard operational documentation;
un-communicated
and un-authorised absenteeism on 20 July 2005.
[8]
Mr Myburgh, in his affidavit (paragraph 6.1) avers that
“
The disciplinary enquiry
was postponed on at least two occasions due to complaints by the
First Respondent that he did not understand
the charges. The
chairperson of the disciplinary enquiry, Mr Marinus Wagemaker,
Applicant’s General Manager Armed Reaction
Pretoria, made a
ruling that all documentation, including statements by all possible
witnesses, be provided to the First Respondent
before the
disciplinary enquiry could proceed. This duly happened. The First
Respondent therefore, prior to commencement of the
disciplinary
enquiry, was fully aware of the details of all of the allegations
against him”
[9]
This is vehemently denied by the First Respondent in his papers.
[10]
Mr Wagemaker found the First Respondent guilty and dismissed him with
immediate effect. The First Respondent appealed the dismissal.
The
appeal was dismissed.
[11]
He referred his unfair dismissal dispute to the Third Respondent. The
dispute was not resolved at conciliation. It was then
referred to
arbitration and was arbitrated by the Commissioner who is cited as
the Second Respondent in the proceedings before
Court.
[12]
At the arbitration hearing Mr Myburgh represented the Applicant
company. The First Respondent was represented by Audi Mehl
and later
by Joshua Jabangwe, both SAHCTU officials.
[13]
The Applicant called Robert Dick, its Bedfordview Branch Manager,
Keith Lester, a Barloworld principle dealer and Willem Van
De Venter,
the liason officer and security head as its witnesses.
[14]
I shall not deal with the testimonies of the witnesses individually
but as and when the need arises in my analysis of the grounds
for
review.
[15]
The First Respondent did not call any witnesses. His testimony is
summarized as follows by the Commissioner in the award:
His version was that he was suspended on the 19
th
July 2005 and as charges were ambiguous, he
requested clarity on same but none was given. He attended a hearing
and still repeated
clarity sought, which was postponed to allow the
Respondent to respond but failed to.
He was later dismissed and he appealed and the appeal chairperson
also said that he did not comprehend the charges put.
He said
that complaints referred to were only lodged after his suspension,
which was clear fabrication.
He stated
that the Respondent’s standards did not allow implementation or
compliance with Arms & Ammunition Act No. 75
of 1996 and that a
firearm got lost on a site which had no safe.
The Respondent’s witness testifies before these proceedings
that they never lodged any complaints against him. The General
Manager started to victimise him henceforth and also presided over
the altercation between Zelda and him. The same General Manager
recruited him from Chubb where he was the Area Manager for eight
years. He worked well and a year later due to argument with Zelda,
he
was suddenly told of incompetence. He had a clean record until his
argument with Zelda.
No
performance standard was set or known to him.
He said an
employee cannot be suspended and expected to report for duty during
the currency of that suspension. Suspension means
one stays away from
work.
He said
that clients normally tell one of ratings and they only sign. No
prior complaint by any client was brought to his attention.
Responding
to questions he said that it was not usual to bring clients to
hearings. He said Willemse’s statement confirmed
that clients
would sign without ratings provided.
He
acknowledged to have discussed two complaints with the G.M. in 2004
and nothing in 2005.
He reiterated that delivery of quoted, monthly tax forms and meeting
clients are not the Project Manager’s jobs. He confirmed
to
have never been to any Respondent’s safe on site.
[16]
The Commissioner issued an award in the matter. His findings were
that the First Respondent’s dismissal was both procedurally
and
substantively unfair. It is this award that has led to the instant
review application.
Grounds for review
[17]
The Applicant’s grounds for review are set out elaborately and
accurately in Mr Myburgh’s founding affidavit in
support of the
present application. I shall summarize them for the purposes of the
judgment.
[18]
Mr Myburgh avers that it is not true that the First Respondent did
not have the charges explained to him as there were two
postponements
to enable further particulars being given to the First Respondent and
this was done.
[19]
Mr Myburgh further denies that the charges against the First
Respondent were fabricated because of the First Respondent’s
altercation with Mrs Myburgh. According to a submission made by
Applicant’s representative in Court the said altercation
took
place six months before the disciplinary enquiry. It had absolutely
no bearing on the disciplinary hearing and the subsequent
dismissal
of the First Respondent.
[20]
Another issue that Mr Myburgh deals with in his affidavit, in support
of the review application, is the fact that the Commissioner
ignored
evidence that was placed before him at arbitration. It is Mr
Myburgh’s averment that the Commissioner did not deal
with the
evidence that the First Respondent falsified signatures of
Applicant’s client’s representatives. Mr Myburgh
feels
that this evidence should have been analyzed by the Commissioner.
This, according to Mr Myburgh, shows that the Commissioner
did not
apply his mind to the issues before him.
[21]
Concerning the First Respondent’s absence from work on the 20
th
July 2005 Mr Myburgh feels that the
Commissioner should have taken into consideration the letter of
suspension as it was part of
the arbitration bundle. The letter
stipulates that although the First Respondent has been suspended from
his normal duties, he
should report daily at the Bedfordview Head
Office of the Applicant.
[22]
The issue of the missing firearm is also cited as one that was not
analysed correctly by the Commissioner. According to Mr
Myburgh the
gist of the allegations against the First Respondent in this regard,
was not whether or not the First Respondent was
responsible for this
firearm being lost, but rather his failure to investigate the matter
after the firearm disappeared.
[23]
It is Mr Myburgh’s further submission that the Commissioner did
not refer to evidence that suggests that he and Mr Dick
were not in
“cahoots” in planning to dismiss the First Respondent.
[24]
In summary Mr Myburgh avers that the Commissioner did not apply his
mind to the matter and evidence before him.
[25]
He also submits that the evidential material which was available to
the Second Respondent, does not justify the findings which
the Second
Respondent made. The Second Respondent either misconducted himself,
or alternatively he committed a gross irregularity.
[26]
First Respondent argued that there was procedural unfairness on the
part of the Applicant as the charge sheet was not specific.
The
Applicant did not elaborate on the charges.
[27]
Another ground for opposing the review application is that it was
contradictory for the Applicant to suspend the First Respondent
but
expect him to report to the Applicant’s head office.
[28]
First Respondent takes issue with the fact that the Applicant only
called witnesses at the arbitration and none were called
at the
internal hearing. This made it difficult for the Third Respondent to
cross examine the witnesses for the first time at the
arbitration.
Analysis
[29]
The Commissioner found that there was both substantive and procedural
unfairness in the First Respondent’s dismissal.
He mainly based
his findings on what he termed fabrication of charges by the
Applicant.
[30]
In his analysis of evidence the Commissioner finds that Mr Myburgh
was so intent on dismissing the First Respondent that he
was in
“cahoots” with the Applicant’s clients to fabricate
evidence against the First Respondent. It is not clear
how he arrived
at this conclusion, as there is no direct evidence that he refers to.
[31]
In January 2005 there was already communication between J. Myburgh
and Z Myburgh, concerning complaints against the First Respondent
from clients. This is contained on page 63 of the paginated bundle.
Evidently there was no fabrication of the complaints against
the
First Respondent by the Applicant as was found by the Commissioner.
[32]
The paginated bundle contains a number of complaints against the
First Respondent that were addressed by the Applicant’s
clients
to the Applicant. These include two cancelled contracts. I do not
have to deal with these at length save to say that the
First
Respondent did not deny their content at arbitration.
[33]
The issue of the First Respondent’s absence while he was on
suspension was dealt with at length by the Commissioner.
He states in
his award, on page 8,
Suspension means “temporarily
staying away from duty for a specified or unspecified period, with or
without pay” He
was therefore unfairly charged with
uncommunicated and unauthorized absenteeism on 20 July 2005. There is
no absenteeism when an
employee is suspended.
[34]
The Commissioner ignores the fact that the letter of suspension
stated that the First Respondent had to report to work even
if he did
not carry out work as a Project Manager. The Commissioner clearly
substituted his own interpretation to the suspension
of the First
Respondent.
[35]
The same can also be said in his (the Commissioner) analysis of the
performance standards charge against the First Respondent.
In his
analysis he states that:
“
I hold a different view
from Robert’s evidence that the employer has no obligation to
retrain an employee whose performance
is regarded as low. It is not
only the employee who has to ask for help, the employer, in my
opinion, has that legal obligation
to help the employee improve his
performance.”
[36]
As it was held in
Empangeni
Transport (Pty) Ltd v Zulu ILJ 352 (LAC),
that:
“
performance standards
generally fall within the employer’s discretion, and unless the
standards are manifestly unlawful, unfair
or irrational, arbitrators
should not substitute their judgment for that of the employer.”
[37]
It is clear that the Commissioner did not enquire as to what the
employer’s standards were regarding the First Respondent’s
work performance. The First Respondent was recruited from Chubb where
he was already a senior employee. He could not therefore
be treated
as a junior recruit and steadily be shown the ropes by the Applicant.
His senior position meant he knew the ropes as
far as managing the
project assigned to him.
[38]
The other issue which the Commissioner dealt with in his award was
the altercation between the First Respondent and Mrs Myburgh.
Although the First Respondent brought it up at the arbitration there
was no proof that it had any influence on the charges that
he had to
face. In this regard thE Commissioner erred in ninding that it was
one of the reasons that led to the First Respondent’s
dismissal.
[39]
As far as substantive unfairness of the First Respofdent I find 4hat
tha Commissioner erreD in his findings that the First
Respondent was
substantivaly unfairly dismissed. He disregarded material evidence
that was begore him. His decision is not one
that a reasonable
Commissioner would make. Hys award would not pass the reasonableness
test as set out hn
Sidumo
case.
1
[40]
Regarding procedural fairness, there is absolutely no basis for the
Commissioner’s basis that thd First Respondent’s
dismissal was uofair. The"First`Respondent `ad the discipliNary
hearinf postponed three times for him to prepare his case.
[41]
The fact that the witnesses for the Applicant were called for the
first time at the arbitration does not make the procedure
at the
hearing Unfiir as the arbitration is a process
de
novo.
The First
Respondent was afforded the opportunity to cross eø!mine these
witnessds, through his representative at the arbitration.
He could
put any questions to them that he would have put at the hearing.
[42]
In the premises I find that the Commissioner’s award stands to
be reviewed and set aside for lack of reasonableness.
[43] I therefore make the following order
1. The Third Respondent’s award is reviewed and
set aside and substituted by the following:
“
The First Respondent’s
dismissal was both procedurally and substantively fair.”
2.
I make no order as to costs
__________________________
CAWE
AJ
Acting
Judge of the Labour Court of South Africa
Date
of hearing: 26 May 2011
Date
of Judgment: 22 July 2011
Appearances:
For
the Applicant: S. Lancaster
Instructed
by: G Van der Westhuizen Macrobert Inc
For
the Respondent: J Jabangwe, a union representative
1
Sidumo
and Another v Rustenburg Platinum Mines (Pty) Ltd and Others
[2007]
12 BLLR 1097
(CC)
9