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[2012] ZALCJHB 110
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Cashbuild (Pty) Ltd v Maake NO and Others (JR 1102/08) [2012] ZALCJHB 110 (9 March 2012)
Not
reportable
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
case
no: JR 1102/08
In the matter between:
CASHBUILD (PTY) LTD
Applicant
And
MAAKE, J S. (
n.O.
)
First Respondent
THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
Second Respondent
MATODZI THOMAS SIKHWARI
Third Respondent
Heard
:
21
October 2010
Delivered
:
09
March 2012
Summary:
(Review-unfair
dismissal-poor work performance -misdirection on a material issue).
judgment
LAGRANGE, J
Introduction
This is an application to review and set aside an arbitration award
issued by the first respondent, a Commissioner of the CCMA,
the
second respondent. This is the second occasion the matter has been
taken on review. Prior to this another arbitration award
was handed
down and set aside on review. The matter was set down for a fresh
hearing before the first respondent (‘the arbitrator’),
and the previous proceedings have no bearing on this review.
Condonation application
The review application was filed 20 days out of time, necessitating
an application for condonation. The delay is not insignificant
in
relation to the six week period permitted for filing review
applications, but the prejudice to the third respondent is not great.
Further, to the extent it delayed him obtaining relief in terms of
the award, that would be mostly cured by accumulated interest
on the
award if the award were not set aside.
The explanation for the delay was that the documents and award were
mistakenly filed with the attorney’s record of the previous
arbitration proceedings in the matter, instead of a new file being
opened. The new documents and the record of the previous arbitration
were then archived as if they both concerned the previous
arbitration. It was only when the applicant’s attorney was
phoned
by the third respondent’s attorney on 20 May 2008 that
he realised that an error had occurred. The review application was
filed within two weeks of hearing of the matter, it being necessary
to locate the filed material first. The explanation has a ring
of
truth to it and does not suggest any deliberate dilatoriness on the
applicant’s attorney’s part.
In so far as the main basis of the review might prove justified, the
impact of such a material defect in the award would have led
to an
unjust result and the applicant’s complaint deserves
consideration.
On a balance of all the considerations, this is a case in which the
late filing of the review application should be granted.
Factual background
The third respondent, Mr M T Sikhwari (‘Sikhwari’), was
charged with a complaint of poor work performance, namely his
failure
to meet certain standards, performing work in such a way it had to be
repeated, and demonstrating an inability to control
and manage his
subordinates. After the hearing chaired by an external chairperson,
the company acted on the chairperson's recommendation
that be
dismissed for poor work performance.
The arbitrator held that Sikhwari’s dismissal was not
procedurally unfair, but was substantively unfair. The critical
paragraphs
containing his reasoning on the question of substantive
fairness read as follows:
"5.5 the
applicant was essentially dismissed for poor work
performance
. As already indicated elsewhere above
, there were
numerous training, counselling and coaching sessions held with him,
based on the training program afore-said. It appears
from the remarks
made by the witness in exhibit "A" that the applicant
failed to reach the required standards of performance,
leading to the
disciplinary hearing
. I how ever find difficulty with the fact
that
he was charged with misconduct
.
5.6 Item 9 of Schedule 8-Code of Good Practice: Dismissal of the
LRA , makes provision for guidelines in cases of dismissal for poor
work performance.
It seems to me that it is inapplicable to the
nature of poor work performance being considered in this matter.
In the present case, according to the witness, the applicant was
being trained, counselled and coached with a view to determining
if
he could eventually be found to
fit to be appointed
to the
position of store manager
from his
erstwhile position of
relief manager
.
It therefore stands to reason that if he
failed to reach the standards required for the position for which he
was being groomed,
he would naturally not be appointed to that senior
position but would rather remain in the position he held the time of
his dismissal.
In brief he would not progress beyond the latter
position
. This in itself is punitive in nature.
This therefore
implies that he ought not to have been dismissed.
He could only
be disciplined if he had failed to reach the performance standards
applicable to his erstwhile position, and of course
provided that
this was in spite of counselling and coaching.
In brief he ought
not have been disciplined for his alleged failure to reach the
required standards applicable to a possible new
position he was being
groomed for
.
5.7 In the circumstance, I determine that his dismissal was
substantively unfair."
(
sic,
emphasis added)
On the question of relief however the arbitrator found that because
of the hostile relationship Sikhwari displayed towards his
store
manager and the applicant's contention that the trust relationship
had broken down, compensation equivalent to 12 months
remuneration
rather than reinstatement was appropriate.
There were only two witnesses who testified at the arbitration, the
former store manager of the applicant’s Louis Trichardt
branch,
Mr M B Ngobeni, and Sikhwari. The arbitrator summarised their
evidence quiteadequately in his award and I do not intend
to repeat
it here. However, it is instructive to convey the thrust of the
evidence and the nature of Sikhwari 's attack on the
evidence against
him.
Ngobeni’s evidence concerned the on-the-job training which he
had given Sikhwari over a number of months. He had devised
the
training program and had evaluated Sikhwari’s performance at
regular intervals. He had counselled Sikhwari and issued
him with
warnings concerning the shortfalls in his performance. Sikhwari
acknowledged the warnings he was given, though he claimed
he merely
signed in receipt of the warnings. At the time, he did not appeal
against the warnings but he did protest the fairness
of the second
warning he received at the time it was issued to him. He took that
objection no further.
The arbitrator himself noted that Ngobeni "did his best to grow
the applicant within the respondent", and it is apparent
that he
accepted Sikhwari had not shown himself to be capable of being a
store manager. It is also noteworthy, that Sikhwari had
some prior
experience as a manager in a retail environment, and had already
worked for two years for the applicant before he started
working
under Ngobeni. It is apparent from his evidence, that he felt
Sikhwari had done little to acquire any knowledge of the
applicant's
systems in the previous two years he had worked for it.
It is interesting to note that an overview of the cross-examination
of Ngobeni and Sikhwari’s own evidence reveals, for the
most
part, that Sikhwari did not directly defend the adequacy of his
performance. Rather, he questioned Ngobeni’s qualification
to
devise training for him and to evaluate his performance. He also
attacked the fact that the evaluation performance did not involve
a
scoring system, and that he was dismissed one week before the
training period was supposed to end. He also appeared to have been
of
the view that he should have simply been undergoing training without
having to perform any responsibilities while training was
in
progress. He further suggested that Ngobeni was determined to get rid
of him, without being able to advance any plausible reason
why
Ngobeni would have harboured such malicious intentions towards him.
Grounds of review
The applicant contends that the arbitrator ultimate findings are ones
that no rational arbitrator could reach for the following
reasons:
the arbitrator's conclusion that Sikhwari was incorrectly charged
with misconduct cannot be reconciled with his conclusion that
the
procedure was fair.
The arbitrator’s finding in paragraph 5.6 of his award is
irrational and contrary to the evidence because:
a relief manager must be capable of doing the work of a store manager
when replacing the latter and therefore had to be able to
perform
according to the standard of a store manager.
Sikhwari was being trained so that he could fulfil the proper role of
a relief manager and if he could not do this there could
be no point
in retaining him.
Expecting the employer to continue employing someone who cannot
perform the function they expected simply because they will not
be
promoted to the position of store manager is nonsensical.
The arbitrator completely failed to comprehend the nature of the
position of a relief manager in finding that he had not succeeded
in
performing to the requirements of a more senior position, when in
fact he had failed to perform to the standard expected of
a relief
manager, which is the position he held.
The arbitrator failed to provide any reasons or exercise his
discretion properly in deciding to award Sikhwari the maximum amount
of compensation possible in terms of the LRA.
The applicant also argues that by reasoning as he did, the arbitrator
made findings that could not be justified on the evidence
before him,
exceeded his powers, failed to afford the applicant a fair hearing
and failed to properly consider the evidence before
him.
Evaluation
It is readily apparent from the award, that the arbitrator was
satisfied that the applicant had done what it ought to have done
in
terms of how it had approached Sikhwari’s training and how it
had tried to address the shortfalls in his performance before
deciding that he would not be able to perform the work of a store
manager. The arbitrator did not take issue with the applicant's
conclusion that Sikhwari could not perform the work on which he was
being trained.
From the arbitrator's analysis it is clear that he accepted that in
so far as Sikhwari was expected to perform the job of a store
manager, and if that had been his job, his dismissal would have been
fair. The only basis on which the arbitrator found that it
was unfair
was that the job he was being trained for was not his existing
occupation of a relief manager. In the arbitrator's mind,
he clearly
did not appreciate that the very function of a relief manager, in
practice, was to take over the functions of an existing
store manager
when required, and that required the relief manager being able to
fulfil the responsibilities of astore manager having
with the skills
necessary to perform that job. If the arbitrator had understood this,
he would not have considered whether or not
Sikhwari could still
adequately perform the function of a relief manager even if he could
not do the work of a store manager.
One of two explanations for the arbitrator’s ultimate finding
exist. The first is that the arbitrator misdirected his enquiry
based
on his failure to consider the purpose of training a relief manager.
This in turn led him to disregard the relevance of his
findings
regarding the shortcomings of the applicant in performing the work of
a store manager. It also led him to consider irrelevant
issues such
as the applicant's perceived failure to promote Sikhwari to the
position of a store manager, as a result of his failure
to perform
adequately, when in fact his promotion was not under consideration at
that time.
In
CUSA v Tao Ying Metal Industries & others
(2008)
29
ILJ
2461 (CC),
Ngcobo J (as he then was)
said of an arbitrator’s misdirections on the issue to be
decided:
“
[76] It is by now axiomatic that a
commissioner is required to apply his or her mind to the issues
properly before him or her. Failure
to do so may result in the
ensuing award being reviewed and set aside. Recently, in Sidumo, the
matter was put thus:
'It is plain from these constitutional and statutory provisions
that CCMA arbitration proceedings should be conducted in a fair
manner. The parties to a CCMA arbitration must be afforded a fair
trial. Parties to the CCMA arbitrations have a right to have their
cases fully and fairly determined. Fairness in the conduct of the
proceedings requires a commissioner to apply his or her mind
to the
issues that are material to the determination of the dispute. One of
the duties of a commissioner in conducting an arbitration
is to
determine the material facts and then to apply the provisions of the
LRA to those facts in answering the question whether
the dismissal
was for a fair reason. In my judgment, where a commissioner fails to
apply his or her mind to a matter which is material
to the
determination of the fairness of the sanction, it can hardly be said
that there was a fair trial of issues.'“
In this instance, the arbitrator failed to apply his mind to the
correct occupation for which the applicant was being assessed,
which
was clearly a cardinal factor determining his suitability for
continued employment based on performance.
A second explanation for the arbitrator’s conclusion is that he
misconstrued the evidence to mean that Sikhwari was not fit
for
promotion to a higher position when it fact it was relevant to his
fitness for his existing position as a relief manager. Such
an
approach amounts to misconduct in relation to the duties of an
arbitrator in terms of section 145(2)(a)(i) of the LRA.
1
Because the arbitrator misdirected himself in this manner,
thisresulted in him making an ultimate finding, which was not one a
reasonable arbitrator could have made, and deprived the applicant of
a fair hearing of its case.
For these reasons the arbitrator’s finding that the dismissal
was substantively unfair must be set aside.
Relief
If the arbitrator’s misdirection on the performance that was
being assessed is corrected, the unavoidable conclusion is that
Sikhwari was unsuitable to perform the work of a relief manager, in
which capacity he was employed, because he could not function
in the
place of a store manager. It is also clear from the rest of the
arbitrator’s findings, that the applicant was given
sufficient
training, counselling and opportunities to correct himself before the
applicant decided to dismiss him. It is worth
recalling that Sikhwari
had already been working for two years for the applicant but had
picked up little in the way of his knowledge
of the applicant’s
operating systems.
In the circumstances, it would be unfair to burden the employer with
further training responsibilities and the cost of continuing
to
employ the applicant when the evidence tends to suggest as a matter
of probabilities that Sikhwari’s performance was unlikely
to
improve, and the arbitrator had concluded the employer had done what
it could to rectify it. Accordingly, I must find that Sikhwari’s
dismissal for poor work performance was not substantively unfair.
Order
An order is made in the following terms:
The applicant’s late filing of its review application is
condoned.
The finding of the first respondent issued on 25 March 2008 in case
NP34-02 that the third respondent’s dismissal was substantively
unfair is set aside.
The arbitrator’s award of twelve months’ compensation is
set aside.
The arbitrator’s finding in paragraph 5.7 of his award is
substituted with a finding that the third respondent’s
dismissal
was substantively fair.
Each party must pay its own costs.
1
Per
Mlambo, J, as he then was in
Metcash
Trading Ltd t/a Metro Cash and Carry v Fobb and Others
[1998]
11 BLLR 1136
[1998]
11 BLLR 1136
(LC)
;
(1998)
19
ILJ
1516
(LC)
;
at [12]