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[2012] ZALCJHB 31
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Fletcher v Stemmet NO and Others (JR2603/08) [2012] ZALCJHB 31 (14 March 2012)
REBUBLIC OF SOUTH AFRICA
IN THE LABOUR OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR2603/08
In the matter between:
JOHN MAURICE FLETCHER
…................................................................................
Applicant
And
JAN STEMMET N.O.
….................................................................................
First
Respondent
FAMSYSTEMS (PTY) LTD
…..................................................................
Second
Respondent
TAL AND ENGINEERING INDUSTRIES
BARGAINING COUNCIL (GAUTENG)
…....................................................
Third
Respondent
Heard: 14 December 2011
Decided: 14 March 2012
Summary:
Application to review the Commissioner’s
decision on the basis of a gross irregularity and that the
Commissioner’s findings
were unreasonable. Held that the
Commissioner’s decision was supported by the evidence and that
decision was not unreasonable.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
WILKEN AJ
Introduction
[1] The applicant in this matter wishes to review and
set aside an arbitration award issued on 6 October 2008 in which the
first
respondent ruled that applicant’s dismissal to be both
procedurally and substantively fair. The arbitration was conducted
under the auspices of the Metal Engineering Industry Bargaining
Council on 9 October 2007, 5 February 2008, 11 June 2008, 13 June
2008 and 9 August 2008. The applicant gave evidence and called 10
witnesses. The second respondent called 5 witnesses. Both applicant
and second respondent were represented by legal practitioners from 5
December 2008.
[2] The Respondents did not oppose the application for
review.
Background Facts
[3] The applicant was employed by the second respondent
as technical manager on 1 February 2007. On 27 March 2007, applicant
was
suspended and given notice to attend a “disciplinary
meeting enquiry” on 28 March 2007. On 28 March 2007, the
applicant’s
representative (the applicant’s wife) raised
various objections to the nature of the process whereupon the second
respondent
adjourned the meeting.
[4] On Friday 30 March 2007, applicant received a
further notice to attend a disciplinary hearing on Monday 2 April
2006. The notification
of 27 March 2007 listed four complaints
against the applicant and was in non-specific terms. The notification
of 30 March 2007
was clearly issued to address the lack of
particularity of the first notification objected to by the applicant.
[5] The notification of 30 March 2007 called upon the
applicant to answer the following complaints:
‘
1. Gross misconduct in that you refuse to
work with certain staff members with specific reference Rhonda, who
is the buyer for the
company. This disrupts the normal flow of
business;
Gross misconduct in that on Monday 26 March 2007 you refused to
take a call from one of the company’s best clients
who had a
query requiring technical input to make sure the correct item was
delivered and also threw the message in the bin;
Gross misconduct in that on Monday 26 March 2007 you refused to
meet with a recognised supplier in an acceptable manner;
Gross misconduct in that when the client from the previous day was
in contact with you telephonically on Tuesday 27 March
2007 you
failed to answer the relevant query and asked him to contact
others in the company;
Gross misconduct in that on or about Monday 26 March 2007 you
called the receptionist a “black bitch” and indicated
to her that you hated her from the beginning;
Gross misconduct in that you placed the name of the company in
disrepute by emailing clients and claiming that they should
hold
the company liable for damages.’
[6] The notification specifically stated that the
applicant could obtain further particulars from management and
reminded the applicant
of his right to a formal hearing, to be
represented at the hearing, to be given time to prepare his case, to
be given advance warning
of the charges, to be advised of the
allegations and charges, to be represented or assisted at the hearing
by a colleague of his
choice or a shop steward, to ask questions on
any evidence produced, to call witnesses to testify, to an
interpreter and of the
right to appeal.
[7] The applicant attended the disciplinary hearing on 2
April 2007, but did not participate in the proceedings despite being
repeatedly
encouraged to participate. At the commencement of the
proceedings the applicant submitted a letter stating:
‘
Attendance at Famsystems Monday 2 April
2007
Submission for the record by JM Fletcher
Famsystems have not made available to me company policy or
disciplinary procedures and therefore I do not recognise and accept
the arbitrary nature of conducting this disciplinary enquiry. I
reserve my right to reply.’
[8[ On 4 April 2007, the applicant was notified that he
had been found guilty of the complaints put to him and that the
second respondent
was implementing the recommendations of the
independent third party who chaired the disciplinary hearing. The
sanction imposed
in respect of complaints 2, 3, 4 and 5 were dismal,
in respect of complaint 1 he was issued with a written warning valid
for 9
months, and in respect of complaint 6, he was issued with a
final written warning valid for 9 months.
Arbitration Award
[9] The first respondent found that the applicant was
not guilty, considering the evidence presented to him, in respect of
complaints
2, 3 and 4.
[10] In respect of complaint 1, the first respondent
held:
‘
On the evidence before me, I find on a
balance of probabilities that the applicant is guilty of refusing to
work with Ms Rhonda
Makgoba. On the applicant’s own evidence he
did not want to deal with her anymore after the incident involving
the courier.
I find that this has disrupted the procedures and
operations of the applicant, because purchases had to be done through
Ms Makgoba,
who was the buyer.’
[11] In respect of complaint 5, the first respondent
held that:
‘
I find that applicant has called Ms
Seshotele a “Bloody Black Bitch” and that he had hated
her from the beginning. Ms
Seshotele’s evidence is corroborated
by Ms Metsileng and the applicant’s version is not plausible.
Furthermore, the
applicant did not dispute the allegations when he
was telephoned by Mr van Kerckhoven or at the disciplinary enquiry.’
[12] In respect of complaint 6, the first respondent
held:
‘
On the evidence before me I find that the
applicant has placed the name of the Respondent in disrepute by
sending the e-mail to
the Respondent’s client. The applicant’s
explanation for sending the e-mail is not plausible. At the very
least, he
probably sent the e-mail to embarrass the Respondent. The
gist of the e-mail is that the company should be held liable for
production
losses.’
[13] The first respondent also found that:
‘
I find that judged as a whole, the enquiry
was procedurally fair as envisaged in the code of good practice
contained in Schedule
8 of the LRA. It is clear that the applicant
was given an opportunity at the disciplinary enquiry to present his
case and that
he did not have a valid reason to desist from
participating.’
Grounds of Review
[14] The applicant confined his grounds of review as
those advanced in the heads of argument dated 25 November 2011.
[15] In relation to complaint 1, the applicant contends
that the first respondent erred in finding the applicant guilty of
refusing
to work with Ms Makgoba as such finding was not supported by
the evidence nor the probabilities and that his finding is
accordingly
unreasonable.
[16] In respect of complaint 5, the applicant contends
that the first respondent should have rejected the evidence of Ms
Seshotele
that the applicant called her a “bloody black bitch”
as unreliable and fabricated. The applicant contends that he never
uttered those words towards Ms Seshotele. In addition, applicant
contends that first respondent should have found that Ms Makgoba
and
Ms Seshotele were both unreliable witnesses as they were motivated by
antipathy towards the applicant.
[17] In respect of complaint 6, applicant contends that
the first respondent should have found that applicant had no
intention of
bringing Famsystems in to disrepute when he informed DTC
about his suspension. Applicant contends that he was acting in
pursuance
of the provision of the contact between Famsystems and DTC
and his intention was purely to remind Famsystems of its obligations.
Applicant contends that the first respondent’s finding of guilt
is not supported by the evidence and his conclusion that
applicant
had placed Famsystems in disrepute is unreasonable.
[18] In relation to procedural fairness, the applicant
contends that his dismissal was procedurally unfair as he did not
have sufficient
time to prepare himself against the 6 charges, he
only received the notification of the disciplinary hearing scheduled
for Monday
2 April 2007 on Friday 30 March 2007. The applicant
contends that the first respondent’s finding, that the
dismissal was
procedurally fair, is unreasonable in the
circumstances.
[19] The test in determining whether
the second respondent’s award ought to be reviewed and set
aside has been formulated
in
Sidumo
and Others v Rustenburg Platinum Mines Limited and Others
,
1
viz
:
‘
Is the decision reached by the Commissioner
one that a reasonable decision maker could reach.’
Whilst the
Sidumo
judgment advances a result-based test
which tests the reasonableness of the outcome of the award, the
applicant must not only assail
the commissioner’s reasons
advanced, but also the result of the award having regard to all the
material that was before the
commissioner. I am mindful of the fact
that this court is not precluded from scrutinising the process in
terms of which the decision
was made, and that I may also have regard
to those grounds advanced in
section 145(3)
of the
Labour Relations
Act 66 of 1995
in determining whether the award should be set aside
and reviewed.
2
Although the applicant argued the
matter on the basis that the award ought to be set aside as first
respondent’s findings
were unreasonable (in respect of
complaints 1 and 6), the applicant also makes out a case in his heads
that the first respondent
committed a gross irregularity in
evaluating the evidence before him.
Evaluation of Complaint 1
[20] The second respondent contended that the applicant
refused to channel purchases through Ms Makgoba following an
altercation
between them regarding the sending of a package to second
respondent’s client, DTC in Namibia, on or about 9 March 2007.
[21] It is common cause that the altercation occurred
between the applicant and Ms Makgoba concerning the collection and
shipment
of the package to Namibia. The second respondent contended
that applicant’s cash purchase of certain stainless steel nuts,
bolts and washes on 9 March 2007, following the aforesaid
altercation, demonstrated applicant’s refusal to place orders
for supplies with Ms Makgoba.
[22] Ms Makgoba testified that prior to the altercation
of 9 March 2007, the applicant requisitioned his supplies by
utilising the
company’s buying procedure by completing a
requisition form and submitting it to her. However after the incident
of 9 March
2007 applicant channelled all his requisitions through Mr
Lengisi. Ms Van Kerkhoven testified that the applicant told her that
he did not deal with Ms Makgoba when Ms van Kerckhoven advised him to
engage Ms Makgoba regarding an invoice reflecting an incorrect
rate.
[23] The applicant contends that the first respondent
failed to have regard to the fact that applicant would normally place
his
requisitions through Mr Lengisi who authorised requisitions and
thereafter pass them onto Ms Makgoba. However, its evidence shows
that it was not necessary for applicant to obtain Mr Lengisi’s
authorisation prior to submitting requisitions to Ms Makgoba.
Mr
Lengisi conceded that it was possible for applicant to place his
orders directly with Ms Makgoba and that he probably did so
prior to
the incident of 9 March 2007.
[24] Insofar as applicant contended that the
Commissioner’s finding of guilt in respect of Complaint 1 was
unreasonable on
the basis that he was not required to place his
orders directly with Ms Makgoba, nor did he channel his purchases
through Ms Makgoba,
the first respondent’s findings are not
unreasonable having regard to the evidence presented.
[25] Applicant further contended that the buying
procedure was never explained to him. However, the applicant did not
need the procedure
to be explained to him as he testified:
‘
I had a requisition book and I knew how to
use a requisition book and I knew I was not the buyer and I know from
my 50 years of
experience that you give the requisition for approval
to the buyer, it is not that I think I did not know what I was
doing.’
Once again on the evidence presented at the arbitration,
the first respondent cannot be said to have come to an unreasonable
conclusion
on the evidence presented in the arbitration.
[26] Applicant also contended that he instructed an
employee to buy the stainless steel washers, nuts and bolts for cash
as they
were urgently required and that he only did so after having
made enquiries with Ms Makgoba as to the progress that she was making
in acquiring the nuts, bolts and washes. He furthermore testified
that when he made the enquiry, Ms Makgoba responded that she
was
first obtaining three quotes.
[27] Ms Makgoba denies that she was ever approached by
the applicant regarding this purchase or that she suggested she would
be
going out for three quotes. It emerged and became common cause
that a requisition for stainless steel nuts, bolts and washes of
a
similar dimension had already been placed with the supplier by Ms
Makgoba. Had the applicant made enquiries with Ms Makgoba,
as he
contended he did, he would have learnt of the bulk purchase order
placed with the supplier on 9 March. It was common cause
applicant
instructed an employee to buy the stainless steel, nuts, bolts and
washers for cash without submitting a requisition
or subsequently
doing so.
[28] In addition, three of applicant’s own
witnesses namely Motsepe, Matlala and Kgwete, all testified that the
buying procedure
requiring requisitions to be channelled through Ms
Makgoba was well known and established. In the circumstances, the
first respondent’s
finding of guilt is not unreasonable on
account of this argument advanced by the applicant.
[29] Applicant further contended that the first
respondent ought not to have come to the conclusion that he refused
to work with
Ms Makgoba by relying on his statement that he did not
deal with Ms Makgoba, as he was merely acting in compliance with Mr
van
Kerckhoven’s instruction not to upset Ms Makgoba. This
explanation, however, does not accord with applicant’s own
evidence
under cross-examination when it was put to him that Mr Van
Kerkhoven told him not “to upset his staff”. Applicant
admitted
Mr van Kerckhoven never mentioned Ms Makgoba’s name
when instructing him not to upset his staff. Accordingly, the first
respondent’s
reliance on this statement to come to the
conclusion that applicant was guilty on the first complaint is not
unreasonable in all
the circumstances.
[30] Applicant’s remaining challenges to the first
respondent’s finding of guilt on the first complaint, namely:
applicant had never been advised before 27 March 2007
that he had breached a company policy (bearing in mind that his
failure
or refusal to deal with Ms Makgoba arose on 9 March 2007);
he was never challenged previously about his
statement to Ms van Kerckhoven that he refused to deal with Ms
Makgoba; and
Mr van Kerckhoven testified at the arbitration
proceedings that this complaint was not considered serious,
do not detract from the finding of guilt.
[31] Accordingly, first respondent’s finding of
guilt is not unreasonable, nor did he commit any gross irregularity
in assessing
the evidence before him.
Complaint 5
[32] Complaint 5 concerns the finding by the first
respondent that the applicant had called Ms Seshotele “a bloody
black bitch”.
[33] Ms Seshotele testified that she was at reception
together with Ms Metsileng when the applicant, on his way to the
kitchen referred
to her as ‘you bloody black bitch, I hated you
the first day I saw your face’ and upon his return from the
kitchen
repeated the same words. Ms Metsileng confirmed these
utterances in her testimony and stated she cautioned Ms Seshotele not
to
react to applicant’s utterances.
[34] It is common cause that before applicant uttered
these words, he was annoyed by Ms Seshotele, Ms Makgoba and Ms
Metsileng’s
loud conversation in the reception area. Applicant
denies having uttered the words attributed to him and contends that
he only
stated:
‘
I won’t put up with your bloody
insolence and you will have to find someone to carry you when I am
gone.’
[35] Applicant acknowledges that he was disturbed by the
discussion in the reception area, his office opening onto the
reception
area, and having been “provoked” by Ms
Seshotele on rearranging the notes left on his desk earlier that day.
He also
contended that Ms Seshotele had banged on his desk when she
addressed him earlier that morning, which further annoyed him.
[37] In argument, Advocate Makola stated that
applicant’s brother-in-law, Mr Endendyk, testified that
applicant was not a
racist and that applicant himself stated that the
words he allegedly uttered was not within his vocabulary. Mr
Endendyk’s
evidence must be viewed with circumspection having
regard to the evidence presented by Messrs Lengisi and Kgwete that
applicant
referred to a poorly executed sales job as “an
African job”.
[38] Applicant argued that the first respondent should
have rejected Ms Seshotele’s evidence as the first respondent
did not
find the applicant guilty on the complaints relating to the
incidents immediately preceding the offending utterances, namely
refusing
to deal with a customer Mr van Dyk and supplier, Mr Meyer.
[39] The first respondent did not reject Ms Seshotele’s
evidence as to what transpired in relation to Messrs van Dyk and
Meyer,
but came to the conclusion that there was insufficient
evidence before him that the applicant was guilty of the complaints
put
to him. The first respondent considered that there were multiple
communication between Mr van Dyk and the company on the day and
not
only the one Ms Seshotele testified on properly. Insofar as the
complaint regarding applicant’s refusal to speak to Mr
Meyer is
concerned, applicant’s denial was not challenged in
cross-examination and first respondent thereafter did not reject
Ms
Seshotele’s evidence but held that complaint had not been
proved. It is apparent that no credibility finding was made
nor was
any of the evidence presented by Ms Seshotele rejected.
[40] Applicant further contends that Ms Seshotele’s
evidence ought to be rejected as she is related to Ms Makgoba, the
complainant,
them being sisters. The applicant further contends that
Ms Seshotele’s evidence should be rejected on the basis of
applicant’s
contention that Ms Makgoba allegedly lied to
applicant on two different occasions. When Advocate Makota was
questioned about the
conspiracy theory advanced by the applicant in
relation to Mesdames Seshotele and Makgoba vis-á-vis the
applicant, he conceded
that no evidence of such conspiracy was ever
put to either of them.
[41] The applicant contends that the evidence of both
Mesdames Makgoba and Seshotele ought to be rejected as being
unreliable as
both were motivated by an antipathy towards the
applicant. However, it was not Ms Makgoba who supports Ms Seshotele’s
evidence
regarding the racist remarks, but Ms Metsileng, and her
version was never attacked nor discredited. In the circumstances, the
first
respondent cannot be fault having relied on the corroborative
evidence of Ms Metsileng to find the applicant guilt of complaint
5.
In the circumstances, the first respondent did not commit a gross
irregularity, nor came to an unreasonable conclusion on the
evidence
before him in finding the applicant guilty on complaint 5.
Complaint 6
[42] This complaint relates to applicant having brought
the company’s name into disrepute by transmitting an email to a
client
drawing the client’s attention to the fact that
applicant’s suspension may result in the project not being
completed
timeously.
[43] It is common cause that the applicant transmitted
the offending email, but applicant contends that the purpose of the
email
was not motivated by any malice, but merely to inform DTC about
the effect his suspension would have upon completing the project
within the agreed timeframes. Applicant contends that the e-mail was
not intended to alert the customer of its right to sue second
respondent for penalties, but purely to remind the second respondent
of its exposure should it not complete the project within
the agreed
timeframe. In addition, the applicant contends that the mail was
motivated by his concerns for the safety of the customer’s
employees should the project not be completed and that he attempt to
avert industrial action by the client’s employees on
account of
their health and safety should the project not be completed
timeously. Applicant believed it to be necessary to send
the mail as
Mr Van Kerkhoven, the MD of third respondent, in his view did not
manifest any interest on what was happening in relation
to the
project.
[44] Advocate Makola confirmed that an objective
assessment had to be made of the e-mail to determine whether it
brought or aimed
to bring the third respondent’s name into
disrepute and/or alert them to the fact that the third respondent
could be held
liable for damages.
[45] The evidence of the applicant during
cross-examination assists in evaluating the motivation behind the
transmission of the
e-mail copied to client and the consulting
engineer that read as follows:
‘
No the scope of work that was agreed, was
agreed to be done between 13
th
and 17
th
.
There still had work to be done. In fact, the list of work that is
there, which remains outstanding, was not possible to be done
between
the 13
th
and 17
th
,
but it would be enough to bring, specifically, the new fans onto
site, the fans which were represented by Famsystems to the client
as
being in accordance with Tecnium design and it was fraudulent, they
misled their client and we caught them out with the [246]
anemometer
readings. They were going to bring the fans in on the 13
th
and the 17
th
.
What really kicked over Van Kerkhoven, when he realised I was not his
man.’
[46] In addition, the applicant had no plausible
explanation why the email was sent prior to dismissal, the inference
being that
there was no indication at that stage that he would no
longer be involved in the project.
[47] Objectively speaking there was no reason for the
applicant to alert the client of the second respondent’s
internal affairs
or the fact that he had been suspended. It could
only have been done to put pressure upon Famysystems in relation to
the intended
disciplinary hearing on the one hand, and on the other
hand to bring additional pressure to be born upon the second
respondent
by the client regarding the project. Considering the
difficulties the second respondent had experienced in executing the
contract,
the first respondent’s finding is not at variance
with the evidence nor was his conclusion unreasonable.
Procedural Fairness
[48[ It was common cause that the applicant was
suspended on 27 March 2007 and was summonsed to a meeting the
following day, 28
March 2007. It was further common cause that the
meeting of 28 March 2007 was adjourned and that applicant was
provided with a
detailed complaint sheet on 30 Friday March 2007
advising him to attend a hearing on Monday, 2 April 2007. It is
further common
cause that the applicant, despite repeated requests,
refused to participate in the disciplinary hearing which was
conducted on
2 April 2007.
[49] The applicant contends the dismissal is
procedurally unfair because he had too little time to prepare.
However, applicant never
requested a postponement, nor did he request
any further clarity regarding the complaints, and point blank refused
to participate
in the hearing. It does not lie in the applicant’s
mouth to now complain about the procedural fairness of the hearing in
circumstances where he himself took no steps to avail himself of his
right to state his case. If he was not in a position to prepare
himself he ought to have sought a postponement. If he required
further particulars he should have availed himself of the opportunity
to request such particulars when the hearing commenced. He did none
of this. In the circumstances, the first respondent’s
finding
that the hearing was procedurally fair is not unreasonable.
Accordingly, the applicant’s review on this ground must
also
fail.
Conclusion
[50] The applicant has failed to establish that the
first respondent committed any gross irregularity in the conducting
of the proceedings,
nor has the applicant been able to demonstrate
that the first respondent’s findings are unreasonable in all
the circumstances.
Accordingly, the review must fail.
Award
[51] The application for review is dismissed.
___________________
ST ELMO WILKEN
ACTING JUDGE OF THE LABOUR COURT
Appearances:
For the Applicant: Advocate Makola instructed by Webber
Wentzel
1
(2007)
12 BLLR 1097
(CC) at para 110,
2
See
National Union of Mineworkers and
Another v Samancor Ltd (Tubatse Ferrochrome) and Others
[2011]
11 BLLR 1041
(SCA)
and
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
[2009]
11 BLLR 1128
LC.