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[2011] ZALCJHB 137
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Dischem Pharmacies (Pty) Ltd v Ramashela and Others (JR 978/09) [2011] ZALCJHB 137 (20 September 2011)
REDDY AJ
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
Not reportable
CASE NO. JR 978/09
In
the matter between:
DIS-CHEM
PHARMACIES (PTY) LTD
........................................................
APPLICANT
and
RAMASHELA
MEISIE
..................................................................
FIRST
RESPONDENT
NTSOANE
D N.O
....................................................................
SECOND
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION .
..............................................
THIRD
RESPONDENT
DATE OF HEARING: 6 SEPTEMBER 2011
DATE OF JUDGEMENT: 20 SEPTEMBER 2011
JUDGEMENT
This is an application:
1. for condonation for the late filing
of the review application in terms of
section 145
of the
Labour
Relations Act 66 of 1995
;
to review and set aside an arbitration
award dated 28 October 2008 issued by Commissioner D Ntsoane (the
commissioner) under the
auspices of the Commission for Conciliation,
Mediation and Arbitration under case number GATW 7899-08;
2. to substitute the award with an
award that the dismissal was substantively fair and
for
costs.
Background facts
The First Respondent (the employee)
was employed by the Applicant until her dismissal on 23 November
2007.
She was charged with:
1. gross insubordination in that on 16
November 2007 she repeatedly refused to follow an instruction to do
her duties;
2.
gross unacceptable behaviour in that poor customer service was given
on 5 November 2007;
3.
not following company procedures.
An internal hearing was held and the
employee was dismissed.
The employee referred an unfair
dismissal dispute to the CCMA where she challenged the procedural and
substantive fairness of the
dismissal.
The commissioner found the dismissal
to be substantively unfair but procedurally fair.
The employee was reinstated to the
position she held prior to the dismissal with effect from 5 November
2008. The commissioner further
directed that the employee must be
paid her earnings, on or before 15 November 2008, from the date of
dismissal (2 November 2007)
to 20 October 2008 calculated in the
amount of R 33 561.00. There was no order in respect of costs.
CONDONATION:
The delay
The application for review is four
months and three weeks late.
REASONS FOR THE DELAY
The award was served on the Applicant
on 5 November 2008. The review application was due on or before 19
December 2008. It was delivered
on 8 May 2009.
The Applicant applied, within the time
limits, for a rescission of the award mistakenly believing that it
could apply for a rescission
as the commissioner had not dealt with
the late referral of the dispute to the CCMA.
A rescission ruling dated 23 December
2008 was issued dismissing the application for rescission and
directing the applicant to review
the award.
The employee on 3 February 2009
applied for a variation of the above ruling as she mistakenly
believed that the matter was to be
re-heard. The rescission ruling
did not state this but correctly recorded that the matter ought to be
reviewed. Inexplicably the
CCMA varied the ruling and recorded that
the rescission application is dismissed and the award is upheld.
The variation ruling was received by
the applicant on 24 February 2009.
The applications for rescission and
variation cover the period from November 2008 to 24 February 2009.
The applicant thereafter
sought legal advice and the application for
review was lodged. The application for review is dated 20 April 2009
but was filed
at Court on 8 May 2009. The period from 25 February
2009 to 7 May 2009 is not explained. This constitutes approximately
two months
and two weeks of the four month and three week delay.
The applicant submitted that the
dies
only runs from the date of
receipt of the variation ruling. I disagree. The variation ruling
confirms the award and does not vary
it. The
dies
therefore runs from the date the award
was received by the applicant.
Prospects of success
The applicant submitted that it had
excellent prospects of success. The applicant attacks the
reasonableness of the award and submits
that the award is not an
award that a reasonable decision maker would have made.
For
the reasons contained below I am in agreement with the applicant.
I
will not repeat the analysis of the review grounds save to state that
the application for review has excellent prospects of success.
Prejudice
By virtue of my view on the review
application the applicant will suffer prejudice should the
condonation not be granted. It goes
without saying that the employee
will suffer prejudice should the review application be granted.
However the standard for review
applications has been satisfied by
the applicant and as a result the award stands to be set aside.
Importance of the matter
This matter is of significant
importance as it deals with repeated instructions to an employee to
perform her duties and to her
approach to customers of the applicant
in the retail sector. The matter also deals with the employee’s
disregard of and disrespect
to employees in positions of authority
over her. I am satisfied that it is in the public interest that the
application for review
be heard.
Whilst the explanation for the delay
is lacking in some
parts I
find that the explanation in respect of
the applications for rescission and variation and the applicant’s
seeking legal advice
all to be acceptable. This together with the
applicant’s prospects of success and the importance of the
matter has led me
to conclude that the application for condonation
should be granted.
The review application
Point
in limine
The employee’s representative
submitted that the applicant ought to have referred in its
supplementary affidavit to the record
in support of its grounds for
review. The representative further submitted that the failure to do
so renders the application dismissable.
Rule 7A (2)(c) of the Annotated Rules
of the Labour Court provides that the application for review must be
supported by affidavit
which sets out the factual and legal grounds
upon which the applicant relies to have the decision corrected or set
aside.
I am satisfied that the grounds of
review as recorded in the applicant’s founding and
supplementary affidavits comply with
the above rule. The record of
the proceedings read with the applicant’s affidavits make out a
case for review and allow the
employee to respond thereto. The
employee in her answering affidavit does not record that she has any
difficulty in understanding
the grounds of review for a lack of
reference to the record and she therefore cannot respond to them.
Indeed she does respond to
the various grounds of review in her
opposing affidavit.
The
point
in limine
is dismissed.
The grounds of review are that the
commissioner:
1. failed to apply his mind to the
evidence before him when he found that the employee had eventually
obeyed the instruction to
perform her duties and to stop reading a
book. He consequently erred in finding that she was not guilty of
gross insubordination;
erred in finding that the employee was
not guilty of unacceptable behaviour when she had an altercation with
a customer;
erred in reinstating the employee to
the date of her dismissal without having regard to the fact that the
employee referral of the
dispute was 273 days late;
erred in not finding in favour of the
applicant;
2. misconstrued the inherent
probabilities of the matter and made findings without a rational
objective basis;
3. failed to apply his mind to all the
documentary and oral evidence of the applicant and ignored and
misapplied his mind to all
the relevant facts to the extant that it
is inappropriate and unreasonable.
Summary and analysis of the
evidence before the commissioner
No evidence was led by the applicant
in the arbitration hearing in respect of charge three. The
commissioner correctly found that
it was not necessary to deal with
this charge.
Gross
insubordination
The applicant’s
evidence was that the employee refused to follow three instructions
to do a “face up” on 16 November
2007.
A face up is the aligning of the
merchandise to the front edge of the shelf on which they stand.
The employee was reading a book whilst
sitting down when the instructions were given to her by her superior,
the branch manager,
Ms Ramadhin (Ramadhin). The instructions were
given at different times and the employee was allowed an opportunity
to comply therewith
before the instruction was repeated. There was a
thirty to forty-five minute delay between the first two instructions.
She continued
to read her book and did not follow the instruction at
all. This was recorded on video.
The employee was previously counselled
and warned. She received a final written warning for sleeping on duty
and for gross misconduct
for threatening management and staff.
The employee did not dispute the video
footage of her reading a book on the day in question.
She testified that she was ill on the
day and could not follow the instruction. This was disputed by
Ramadhin. Ramadhin testified
that if she was ill as alleged Ramadhin
would have either given her medication or arranged for to be
collected by her family –
as was done in the past. The employee
did not inform her that she was sick and therefore could not follow
the instruction.
The employee further handed in a
pamphlet as evidence of the book she was reading. The pamphlet was no
more than three pages. Ramadhin
disputed that the employee read the
three-page pamphlet. She confirmed that the employee was reading a
book, which was thicker
than the pamphlet handed in.
The employee also testified that
Ramadhin had a grudge against her for not watching another employee
as allegedly instructed by
Ramadhin. This too was disputed by
Ramadhin.
Although not recorded in the award, it
is clear that the commissioner found that the employee was not ill as
she alleged and accepted
that she was reading a book when instructed
to do her duties. He found that she eventually followed the
instruction and she was
therefore not guilty of gross
insubordination. The commissioner concluded that the employee ought
to have been charged with being
tardy instead of gross
insubordination.
From the record there is no evidence
that the employee did eventually follow the instruction. Ramadhin was
asked what was the employee’s
response to her instructions. Her
response was:
“
She
just looked at me, the second time her response was there’s
enough people so I again said to her Meisie please wake up
and finish
your facing up and your tidying. She woke up from the little thing
she was sitting on she stood against the shelving
with the book in
her hand and just looked at me, didn’t move didn’t do
facing up didn’t do cleaning up of her
workstation, nothing and
then she waited for 6 o’ clock and she walked out.”
The employee did not dispute the above
evidence.
It is trite that an employee is
subordinate to the will of the employer. An employee is obliged to
follow lawful instructions of
the employer. [See Smit v Workmens
Compensation Commission
1979 (1) SA 51
(A)].
The instructions in this matter were
lawful and reasonable. There was no need for the instruction to be
repeated by Ramadhin. The
employee did not follow the instruction.
The employee was grossly insubordinate. A refusal to obey an
employer’s instruction
may justify summary dismissal if the
instruction was lawful and reasonable and the refusal is serious
enough to warrant dismissal
[See National Trading Co v Hiazo (1994)
15 ILJ 1304 (LAC)].
Further it was the undisputed evidence
of the applicant that the employee was previously warned and
counselled for not following
instructions. The employee also received
a final written warning on 24 August 2007 for insubordination.
The finding that the employee
eventually obeyed the instruction is not supported by the evidence
and is not a decision that a reasonable
commissioner would have
reached.
Gross unacceptable behaviour
On 5 November 2007 the employee had an
altercation with a customer which was witnessed by the floor
supervisor, Ishmael Matuwe (Matuwe).
He testified that he heard
screaming and observed the employee having a fight with a customer.
He went to the employee to calm
her down and advise her not to argue
with the customer. She said to him “Suka wena”. He was
embarrassed as other people
were around and insulted by this
response. He walked away.
He also testified that this was not
the first time that the employee had been disrespectful to
colleagues.
Ramadhin
also testified that the employee had an altercation with the
customer.
The employee’s defence to this
charge was that the customer was not allowed access to the schedule
four drugs and she was
correct in preventing the customer from having
access thereto. This was denied by Matuwe, who testified that
customers were allowed
to help themselves to the drugs on the
shelves.
The second leg of her defence was that
the employer took a very long time to charge her and dismiss her. I
am of the view that there
was a reasonable period of time between the
incident and the hearing. This defence has no merit.
The commissioner found a discrepancy
between the Ramadhin’s evidence (that the employee had an
altercation with the customer)
and Matuwe’s evidence (that the
employee fought with the customer) on the one hand and the charge the
employee faced on the
other. He concludes the employee was charged
with poor customer service and that this is not fighting with the
customer. He found
the charge to be improperly formulated and that
the employee was not guilty of poor customer service.
There is no rational explanation for
the above finding. It cannot be argued by any stretch of the
imagination that having a fight
with a customer does not amount to
poor customer service.
Customer service is intrinsic to the
survival of a retail business. It follows that employees in the
retail sector are by the nature
of their jobs obliged to ensure that
the customers to the employer‘s business are looked after and
provided with good, if
not excellent, customer service. Not to do so
results in customers being lost, the business failing and job loss.
It is therefore
imperative that employees treat customers with
respect and dignity. This much was confirmed by Matuwe when he
testified that he
wished to speak to the customer in question and
apologise on the employee’s behalf, as he did not want to lose
the customer.
The employee’s threat to Matuwe,
who was superior to her, shows a distinct disregard for authority in
the workplace, of his
efforts to calm the situation and of the rule
that the “customer is king”.
The
evidence before the commissioner in respect of the second charge
could only support a finding of guilt.
The employee had a previous final
written warning issued in August 2007 for her bad attitude to
colleagues and customers. Whilst
she challenged the validity of the
warning at the arbitration hearing, no challenge to the warning was
made at the time it was
issued. It therefore remained valid.
The employee did not express remorse
during the arbitration hearing. Her conduct that led to the charges
and her conduct during
the arbitration hearing do not support a
continued employment relationship. Rather the opposite – her
conduct was so dismal
so as to be a hindrance to the growth and
success of the employer’s business.
A
reasonable commissioner would have found that the employee was guilty
of the charges and that the sanction of dismissal is appropriate.
Procedure
The commissioner correctly found that
there was no proof of procedural irregularities preceding the
dismissal.
I
therefore make the following Order:
1. The application for condonation for
the late filing of the review application is granted;
2.
The award under case number GATW 7899-08 is reviewed and set aside;
3. The award is substituted with an
award as follows:
“
The
dismissal of the employee is procedurally and substantively fair”;
4. There is no costs order.
_________
Reddy
AJ
Appearances:
1.
For the applicant: Mr Nel instructed by Lindeque and Van Heerden
Attorneys
2.
For the First Respondent: Mr Mabaso of Mabaso Attorneys
13