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[2012] ZALCJHB 119
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RFS Catering Supplies (Pty) Ltd v Mofokeng and Others (JR591/2008) [2012] ZALCJHB 119 (15 March 2012)
3
REPUBLIC
OF SOUTH AFRICA
the labour court of
South Africa, Johannesburg
judgment
Not Reportable
CASE NUMBER: JR591/2008
In the matter between:
RFS CATERING SUPPLIES (PTY)
LTD
Applicant
and
DENNIS MOFOKENG
First
Respondent
COMMISSIONER DAVE WILSON
Second
Respondent
COMMISSIONER FOR CONCILIATION
MEDIATION
AND ARBITRATION
Third
Respondent
Date of hearing: 13 December 2011
Date of Judgment: 15 March 2012
Summary: Review Application
JUDGMENT
SESELE AJ
Introduction
[1] This is an unopposed review
application in terms of Section 145 of the Labour Relations Act (the
LRA) in which the applicant
seeks to review and set aside the
arbitration award issued by the second respondent (the Commissioner)
under case number WE15514
– 07 on 29 February 2007 and that the
first respondent be ordered to pay costs for the application.
[2] The commissioner found that the
sanction of dismissal imposed on the first respondent was too harsh,
he was not given a final
warning and that he could not have been on
notice that his work was at risk. Furthermore, the commissioner
viewed the first respondent’s
conduct as one of incapacity and
could therefore be afforded the opportunity to improve his
performance.
[3] As a result of the findings, the
commissioner ordered reinstatement limited to one month because of
the first respondent’s
untruthful testimony.
Grounds for review
[4] The applicant contends that the
commissioner accepted that the first respondent received counselling
for poor work performance
during June 2007. The commissioner,
however, concluded that the first respondent had shown nothing more
than an unwillingness
to comply with the requirement for the job.
[5] Whether the consultations were
given for actual poor work performance or the unwillingness to
comply with the requirements
of his job, it is clear that the first
respondent showed disregard to comply with his duties and follow
instructions as required
by his position.
[6] The commissioner failed to accept
that the first respondent received a final written warning at the
disciplinary enquiry in
September 2007. This, the commissioner
concluded without providing valid reasons for same and provided no
basis for rejecting
the evidence of Mr van Zyl that the first
respondent received such warning.
[7] The written warning issued to the
first respondent was valid as evidenced by the first respondent’s
employment records
and Mr van Zyl’s evidence.
[8] In New Forest Farming CC v
Cachalia others
1
and If the Court finds that the final written warning given to the
first respondent was questionable, the applicant contends that
in
certain circumstances it may not be necessary to warn an employee of
the procedure or standard required when that employee knew
or
reasonably could be expected to know the standard required by the
employer.
[9] There is no dispute that the first
respondent was a managerial employee in the position of receiving
manager. The first respondent
was previously in a more senior
position of operations manager prior to his demotion to the position
of receiving manager. As
operations manager, the first respondent
knew, or at least could reasonably be expected to have known the
procedures and standards
required by the applicant.
[10] Even if it may be said that the
first respondent was not aware of the standards and procedures, which
the applicant submits
it cannot be the case, the first respondent was
counselled prior to his dismissal where he was, once again, appraised
of what was
expected of him, and was warned that failure to comply
with the procedures would lead to disciplinary action.
[11] The commissioner accepted that
the applicant suffered financial losses as a result of the first
respondent’s breach of
the systems and procedures in respect of
receiving stock.
[12] The length of service carries
little weight where the employee shows noremorse or where the
employee acted in a dishonest manner.
(Hullet
Aluminium (Pty) Ltd v
Bargaining Council for the Metal Industry and Others
2
.
[13] The first respondent’s
misconduct did not relate to dishonesty. The commissioner,
however, referred to the first respondent’s
dishonest
evidence and only awarded one month’s back-pay.
[14] The commissioner acknowledged the
first respondent’s dishonesty in the award and then followed
this with a ruling of
reinstatement. This is not a decision that a
reasonable decision-maker would make.
[15] It is submitted that in the light
of the lack of remorse shown by the first respondent or any
acknowledgement that he acted
incorrectly, an order of
reinstatement is not one which a reasonable decision-maker would
make.
[16] The first respondent alleged the
applicant’s representatives and its witnesses lied to get
rid of him. The accusation
demonstrated the break-down of the
trust relationship between the parties. No reasonable
decision-maker would order reinstatement
of the first respondent
in the light of the accusation of this nature.
[17] The commissioner’s
misconceived reliance on the first respondent’s length of
service when concluding that the sanction
of dismissal was
harsh.Thecommissioner failed to take into account the training given
to the first respondent in his previous position,
his previous poor
work performance counselling where he was made aware of the
procedures as well as the subsequent warning received
by the first
respondent.
[18] The commissioner correctly
concluded that the first respondent was guilty of the misconduct for
which he was dismissed. The
commissioner, however, erred in failing
to apply his mind to all the facts in taking a decision as to the
sanction which was imposed
on the first respondent.
Analysis
[19] The test in review proceedings
was established in Sidumo and Another v Rustenburg Platinum Mines Ltd
and others
3
is that an arbitration award is liable to be reviewed and set aside
if the award is one which a reasonable decision-maker could
not
reach.
[20] The first respondent had been the
operations manager prior to being demoted to the position of
receiving manager. The applicant
counselled the first respondent
prior to being dismissed. It therefore follows that the first
respondent could reasonably be expected
to have known of the
standards and procedures during the fifteen years period that he had
been working for the applicant given
the seniority of his position.
For the commissioner to find otherwise without reasons was in my
view, contrary to the approach
followed in the decision in New Forest
Farming CC referred to in paragraph 8 above.
[21] Applying the reasonable decision
maker test in the Sidumo decision, it was clear that the commissioner
failed to appreciate
the following:- that the first respondent was
previously counselled; that he was given awarning; that he had
extensive experience
in the sector and should have reasonably been
aware of the standards expected of him; he was found to be untruthful
in his evidence
and was as such not offered the benefit of payment of
arrear salary from the date of dismissal until the date of hearing;
and that
the Commissioner found no merit in the allegation that the
first respondent was falsely accused.
[22] The commissioner advanced no
reasons for treating poor work performance as unwillingness to comply
with the requirements for
the job. At the same time the commissioner
accepted that the first respondent was subjected to a disciplinary
hearing during September
2007 for dereliction of duty and failure to
adhere lawful and reasonable instructions. The commissioner
accepted evidence pertaining
to the hearing but rejected the
applicant’s version that the first respondent received a final
written warning. The latter
decision could not have been made by a
reasonable decision-maker who in the first place accepted the
evidence that there was a
hearing held for the said misconduct and
thereafter reject the version as to what sanction was imposed for the
misconduct.
[23] The commissioner’s approach
to the misconduct as one of incapacity for no valid reasons was not
reasonable under the
circumstances. The finding that the first
respondent was guilty of charges preferred against him was such that
the commissioner
should have found that the dismissal was
substantially fair.
[24] The first respondent did not
oppose this application. This is sufficient reason why there should
not be a cost order against
the first respondent.
Order
I therefore make the following order:
The arbitration award made by the
Commissioner under case number: WE15514 – 07 on 29 February
2007 is reviewed and set aside.
The matter is remitted to the third
respondent for fresh hearing before another commissioner.
There is no order as to costs.
----------------------
SESELE AJ
Appearances
For the applicant: Advocate S.
Wainwright, instructed by Allardyce & Partners.
1
[2003] 10 BLLR 1051
(LC)
2
[2008] BLLR 241 (LC)
3
[2007] 12 BLLR 1097
(CC)