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[2011] ZALCCT 25
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Public and Allied Workers Union of South Africa (PAWUSA) v Metshe (C727/2010) [2011] ZALCCT 25 (28 September 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN CAPE TOWN)
CASE NO: C727/2010
In the matter between:
PUBLIC
AND ALLIED WORKERS’ UNION OF
SOUTH
AFRICA (PAWUSA)
…....................................................
Applicant
and
SAKHIWO METSHE
….............................................................
Respondent
JUDGMENT
_________________________________________________________
LALLIE AJ:
[1] The respondent was
employed by the applicant until he was dismissed for operational
requirements. He challenged the fairness
of his dismissal at the
Labour Court. I found his dismissal both substantively and
procedurally unfair and ordered the applicant
to pay him remuneration
equal to his 8 month’s salary.
[2] In this application
the applicant seeks leave to appeal against the quantum I awarded the
respondent for the following reasons:
The Court erred in
awarding the respondent 8 months’
compensation as there is
a reasonable prospect of another Court awarding the respondent less
or no compensation at all because he
was guilty of very misconduct.
The judge found that
the respondent rendered it difficult or impossible for the
applicant to comply with the consultation prescripts
of Section 189
of the Labour Relations Act (LRA) and punished the applicant for
its non-compliance.
While the applicant led
evidence through Gavin Jood (Jood) that the respondent earned a
basic salary of
R6 500.00, the judge,
without rejecting such evidence found the respondent’s basic
salary to be R8 500.00 leading to the respondent’s
compensation
to be inflated by R16 000.00.
[3] The application is
opposed by the respondent, mainly on the grounds that my decision is
correct. He also sought interest on
the amount awarded from
the date of judgment.
[4] The Constitutional
Court confirmed in
Zwane v Alert Fencing Contractors CC
[2011]
2 BLLR 109
(CC) that the decision appealed against must be
susceptible to criticism and incorrect. This reasoning is consistent
with the test
for leave to appeal that there must be a reasonable
possibility that another court might come to a different conclusion
than the
one reached by the court a quo.
[5] The applicant’s
submission that the decision to award the respondent 8 months’
compensation is incorrect and based
on its view that I found the
respondent guilty of serious misconduct which involved the respondent
denying its National Secretary,
Ms Roseberry access to its Port
Elizabeth office and threatening to harm her. According to the
applicant I should have taken such
misconduct into account in
determining compensation to be awarded to the respondent because the
respondent should not have benefited
from his own misdeed. The
applicant further argued that it is because of the respondent’s
misconduct that it was unable to
comply with the requirements in
Section 189 of the LRA.
[6] It is not correct
that in paragraph 6 of my judgement I found that the respondent
committed misconduct by threatening to harm
Ms Roseberry and denying
her access to the applicant’s Port Elizabeth office. I made it
clear in my judgement that the above
allegations were made in the
evidence that was led on behalf of the applicant. I further stated in
paragraph 17 of my judgement
that a dismissal for operational reasons
is a no fault dismissal and cannot be used to justify an employee’s
unfair dismissal
for misconduct.
[7] My decision that a
dismissal for operation reasons should not be used to justify an
employee’s dismissal for misconduct
is correct and not
susceptible to criticism. The reality is that dismissing an employee
for misconduct under the guise of dismissing
him/her for operational
reasons is unfair. No court will come to a different decision on
whether the allegations of misconduct
against the respondent should
have been considered in determining the amount of compensation due to
him.
[8] In my judgement I
gave full reasons for finding that the applicant failed to comply
with its obligations in Section 189 of the
LRA through its own fault
and concluded that the respondent’s dismissal was procedurally
unfair. I found that the applicant
decided to dismiss the respondent
for operational requirements and determined the selection criteria
before inviting the respondent
to consultation. The notice inviting
the respondent to the consultation is dated 11 November 2008 and the
respondent was supposed
to submit a proposal on consultation by 13
November 2008. The applicant failed to deliver to the applicant the
notice inviting
him to the consultation. I am convinced that I was
correct in finding the respondent’s dismissal for operational
reasons
procedurally unfair in those circumstances. The applicant’s
submission that the respondent is responsible for its failure
to
comply with provisions of Section 189 of the LRA is incorrect.
[9] The applicant’s
argument that another court may grant the respondent less or no
compensation at all is not correct. The
employer’s right not to
pay employees dismissed for operational reasons is limited to those
employees who unreasonably refuse
alternative employment. In the case
before me that principle was irrelevant and no grounds existed for
not granting the respondent
compensation after finding his dismissal
both substantively and procedurally unfair.
[10] In the pre-trial
minute signed by the parties on 9/10/2010 the parties agreed that the
respondent’s basic salary was
R8 500.00. The applicant was
represented by the same Jood who was its representative and witness
at the trial. He confirmed the
correctness of the contents of the
pre-trial minute. The applicant’s ground for leave to appeal
that I erred in deciding
that the respondent’s monthly basic
salary was R8 500.00 without rejecting Jood’s evidence that it
was R6 500.00 has
no basis.
[11] The respondent
sought interest on the amount awarded from the date of judgment. I
may not deal with the question of interest
at this stage because I
did not deal with it in my judgment.
[12] Accordingly, the
application for leave to appeal is refused.
__________
LALLIE AJ
Date of judgement: 28
September 2011
For the Applicant: Mr
David Peters of the Applicant
For the Respondents: Mr
Metshe