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[2012] ZALCJHB 48
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CX v Mitsui & Co. Southern Africa (Pty) Ltd (J185/06) [2012] ZALCJHB 48; (2012) 33 ILJ 2872 (LC) (8 June 2012)
REPUBLIC
OF SOUTH AFRICA
Reportable
THE LABOUR COURT OF
SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
CASE NO: J185/06
In
the matter between:
CX
[i]
Applicant
and
MITSUI
& CO. SOUTHERN AFRICA (PTY) LTD
Respondent
Date
of hearing: 10 November 2011
Date
of judgment: 8 June 2012
Summary:
(automatically unfair dismissal – HIV status – not the
reason for dismissal – Dismissal for misconduct
–
procedurally unfair – no notice of right to representation –
failure to clarify issue of calling witnesses)
JUDGMENT
LAGRANGE,
J
Introduction
[1]
The applicant, Mr CXCX, was employed by the respondent
company as a driver and messenger in 1992. He was dismissed on 1
February
2005. The reason given by the employer for the dismissal was
fourfold. Firstly despite numerous previous warnings about not
leaving
the office without giving notice to his manager he did so
again the previous day. Secondly he was insubordinate and that he did
not return immediately to the office after returning from Rapid
Motors. Thirdly, despite a warning the previous year regarding
his
use of alcohol he admitted he had been drinking and had not returned
to the office in order to avoid being tested in the previous
day.
Lastly, he yet again parked in the basement despite being told on
many previous occasions not to.
[2]
CX contends, to the contrary, that he was
dismissed on account of his HIV positive status which he revealed in
March 2003 to the
assistant manager, Ms H Verster, because he trusted
her. He had been advised when he was told of the diagnosis to confide
in someone
he trusted. He claims that after this the relationship
changed and he was overloaded with lots of office work which caused
him
stress. He believed that after he had advised Verster of his
status the company
was looking for a reason to dismiss him.
The respondent maintains that the dismissal was for misconduct and
was unrelated to his
HIV status. It was common cause that the
applicant had advised Verster of his status in March 2003 and again
advised the respondent
when he was dismissed in February 2005.
[3]
The parties agreed that the court was required to determine whether
the dismissal was automatically unfair, or alternatively,
if it was
not whether it was nevertheless a substantively and procedurally
unfair dismissal for misconduct. In the end, this alternative
claim
was concerned mainly with the question of whether he had been given a
fair hearing prior to his dismissal. In the supplementary
pre-trial
minute, the applicant confirmed that he was seeking compensation and
not reinstatement.
The
material facts
[4]
Much of the evidence by both parties concerned the history of
disciplinary action taken against the applicant prior to his
dismissal on 1 February 2005. It is common cause that during the
period 14 January 2003 to 25 November 2004, CX was issued with
no
less than one previous notice of dismissal and three detailed written
warnings, through which some common threads ran. Although
these were
the only written warnings before the court, it must be mentioned that
on 14 January 2003, the applicant narrowly avoided
dismissal for
repeated misconduct of a similar nature preceding that date. CX never
appealed against any of the disciplinary measures
taken against him
during the above period.
[5]
He claimed that he had felt compelled to accept them because he had
been told if he did not he would face dismissal. Somewhat
puzzlingly,
he also said he could only sign for things he knew about. I
understand him to mean he would have signed willingly to
acknowledge
things he did not dispute, but in any event he had been pressurised
under threat of dismissal to sign the warning letters.
Despite all
the warning letters referring to an earlier discussion between him
and Verster, CX denied that any discussions were
held. On every
occasion he claimed he was simply presented with the letter and was
told: “
You did this, you must sign
”.
Withdrawn
dismissal of 14 January 2003 and first rehabilitation session
[6]
The first recorded disciplinary incident placed before the court was
a notice of dismissal dated 14 January 2003. The notice
details
incidents on 23 December 2002 and 6 and 13 January 2003 relating to
various unexplained absences of the applicant from
the office. The
letter concludes with the following:
"After
your numerous warnings, and the fact that you have already had your
last warning letter the company has decided to dismiss
you with
immediate effect."
[7]
Verster testified that this letter was issued only after a number of
previous written warnings, some of which related to drunkenness.
These were not included in the respondent's bundle because they were
not considered directly relevant to the case. In fact, the
company
did not implement the dismissal on this occasion. The applicant
agreed that the dismissal notice was withdrawn, provided
he underwent
rehabilitation for alcohol abuse. During March 2003, he attended a
rehabilitation program for alcohol abuse. The applicant
claims that
the respondent had advised him that he should go for rehabilitation
because his performance was not up to standard
and threatened to
dismiss him if he did not agree to go. He only agreed because he had
a responsibility towards his family not
to risk his livelihood.
[8]
CXVerster's testimony was that she had drafted the letter and Mr Y
Ogata had given it to the applicant and asked him to read
and comment
on it. Ogata had wanted to dismiss the applicant on that occasion but
she felt that there was some doubt whether the
charges could be
proved and also it appeared that his misconduct was related to a
drinking problem.
Written
warning of 16 May 2003
[9]
On 16 May 2003 he was issued with a warning letter. Verster said that
the letter was handed over by Ogata and the applicant
was again given
an opportunity to give his version of events in the course of a
discussion which took place. The warning concerned
a previous
insurance claim for a motor accident that took place in 2002, which
CX had told the insurers had occurred on a Monday.
It turned out,
according to the claim made by the other party to the accident, that
it took place on a Saturday. According to the
warning, CX did concede
that it might have taken place on the weekend. The company policy was
that he was not allowed the private
use of the vehicle on the
weekend. The second claim was that he had had a further accident on
11 May 2003, which also took place
on a Sunday when he was not
supposed to be using the vehicle. The reason the first accident was
only raised in 2003 was that the
company only became aware of the
discrepancy between CX’s account and the account of the
other driver when the insurer
contacted it.
[10]
The remedial action recorded in the warning was to assign the
applicant to office duties only, with no loss of remuneration.
Second
rehabilitation session in May 2004
[11]
In May 2004, the applicant again attended a rehabilitation session
for six days, also paid for by the company. The applicant
testified
that he attended the session at the company's insistence, where
Verster recalled that he had approached the clinic himself
and the
clinic had notified them that he was undergoing detoxification. In a
letter dated 10 May 2004, which confirmedthis arrangement,
the
respondent also stipulated that the applicant could be requested to
undergo a test for alcohol in his bloodstream at any time,
and if any
alcohol was found he could face instant dismissal. The applicant
signed a copy of this letter accepting this condition.
Again, he
maintained that he only did so only because he was told that if he
did not he would be dismissed.
Written
warning of 18 August 2004
[12]
On 18 August 2004, CX was issued with another written warning headed
"2nd Warning Letter". The first complaint in
the letter was
that the applicant had created a disturbance at a filling station and
that he was driving under the influence of
alcohol at the time. CX
said that he was filling the company vehicle at a garage and his son
was with him at that time. When he
was asked for the petrol card by
the attendant he noticed that the tank had only been half-filled. An
argument ensued with the
petrol attendant over this, but he denies
that he was intoxicated at the time. He said that he had come
straight from a meeting
at his son's school and could never have been
under the influence at such a meeting. Verster testified that she had
been phoned
by the owner of the filling station who complained about
his conduct and had said that he believed CX was under the influence
of
liquor.
[13]
On this occasion, CX was again reminded of the fact that he had
agreed that at any time the company could test him for the
presence
of alcohol or drugs in his bloodstream. He was also warned for not
attending to his other duties, namely printing out
time records,
checking company vehicles and checking paper supplies. Lastly, it was
mentioned that he was frequently away from
his desk unnecessarily and
on some occasions had gone to sleep in the vehicle. The warning ended
by saying that if he did not improve
his attitude to his
responsibilities in general and control his use of alcohol he would
be dismissed.
[14]
The letter also referred to a conversation between him and Verster
that morning on the issues set out in the letter. However,
CX denied
that there was any such discussion preceding the letter being issued
to him, which was simply presented to him for acknowledgement.
He
maintained that he had to sign the letter or he would be dismissed,
but could not explain why the letter only stated that if
he did not
improve his attitude towards his responsibilities and control his
alcohol use he would be dismissed. Likewise, he did
not provide any
other reason why he signed the warning letter which included an
acknowledgement that he understood its contents,
if he disputed the
fact that he and Verster had discussed the issues set out in the
letter that morning.
Final
written warning of 25 November 2004
[15]
The applicant was issued with a final written warning on 25 November
2004. This concerned two instances on the 15th and 23rd
of November
respectively, when he had been absent from the office without notice
to his manager. It appears that by this time the
applicant was once
again performing the duties of a driver. The warning stated that he
had previously been spoken to about the
matter and that even though
he had undertaking it would not happen again, it did. The warning
ended as follows :
"Due
to the fact that you have had numerous warnings regarding the above,
and various other matters, this will be your final
warning, and if
you do not behave in a responsible manner then the company will have
no alternative but to dismiss you."
[16]
On this occasion, as with all the others, the applicant insisted that
he was simply asked to sign the letter after which Verster
took it to
the managing director and general manager for their signatures.
However, he did say that he was asked to sign for the
warning after a
meeting with Verster, which suggests that some discussion took place
before the sanction was handed down.
Dismissal
on 1 February 2005
[17]
In the letter notifying the applicant of his dismissal the respondent
provided these reasons for the decision:
"Although
you have been warned on numerous occasions not to leave the office
without giving noticeto your manager, you again
did so yesterday, 31
January 2005.
You
were totally insubordinate as you have been given strict instruction
to report to Mrs Verster immediately you reached office
after
returning from Rapid motors.
In
May 2004 you are given a letter regarding your use of alcohol. You
have admitted to the fact you are drinking. Our intention
was to send
you for a test yesterday, but you have admitted that you avoided he
office as you are scared of this. This proves the
point that you were
under the influence of alcohol during office hours.
Although
you have been instructed on numerous occasions not to park in the
basement parking you have again done so today, and last
week."
[18]
The applicant said he was summoned to the boardroom after two o'clock
on 2 February 2005 and issued with the letter. He was
not given prior
notice of any enquiry in the form of a charge sheet. The applicant
said he was also told to bring his cell phone,
keys and access card
to the meeting. He said he was simply given the letter of dismissal
and it was mentioned to him that on the
previous day the respondent
had caught him but he did not want to come back and it had been
reported that he was under the influence
at the time. According to
the applicant, he challenged the company's representative to call the
person who said he was drunk, but
they would not do so. CX further
denied he had not come back to the office to avoid being tested.
[19]
Under cross-examination CX conceded that on 1 February 2005 there had
been two separate meetings and not one as he had originally
testified. He and Verster had been present at both meetings. He
agreed that at the first meeting he was asked about his whereabouts
the previous day. At the trial it was also put to him that the
explanation he had given on Tuesday for his absence on Monday was
that he had fought with his girlfriend arising out of the fact that
he had contracted his illness from her. Verster said that when
he
raised this she assured him that she had not told anyone of his
previous disclosure about his illness, but the applicant did
not have
a difficulty with raising it himself in Mr M Minato’s
presence. Minato was the General Manager of Administration
at the
time. According to Verster’s evidence, he did not try to
explain his absence on account of being ill. The applicant
disputed
this. He said he had simply raised his HIV status with Verster and
Minato when he was dismissed, saying that was the reason
the company
wanted to dismiss him.
[20]
In the trial, the applicant gave his version of the alleged
misconduct described in the dismissal letter. Regarding his absence
on 31 January 2005, he said that he had not been feeling well and was
suffering from cramps owing to a previous operation for gall
stones.
He had dropped off the person he had collected from Rapid Motors at
the office and told him he had to go to the doctor.
He agreed that
Verster phoned him and instructed him to return to the office. In
turn he told her that he could not, but would
come the following day.
Verster's version was that she had called him to find out where he
was and he had told her that he was
on his way back to the office and
never mentioned anything about going to the doctor.
[21]
At the first meeting on 1 February 2005, according to Verster, the
applicant was advised that there would be a meeting
that
afternoon, which took place at about 2:30 p.m. According to her
Minato was present at both meetings. It was at the earlier
meeting
that the applicant disclosed his HIV status for the first time to
Minato. Minato made it clear that the letter spelling
out the
applicant’s alleged misconduct had nothing to do with the
applicant's HIV condition. Verster said that Minato had
asked the
applicant to go and think about what was in the letter and return,
with legal representation if he wished,at the afternoonmeeting.
It
should be mentioned that this alleged offer of a right to
representation was not put to the applicant when he was being
cross-examined,
and consequently carries little, if any, weight.
[22]
It was apparent from the evidence of Verster that the general
practice at the firm was to present the employee with a letter
setting out the disciplinary complaint. She claimed that in most
cases, there would be a meeting with the employee to discuss the
misconduct and then there would be a report back to the General
Manager who would finalise the matter. She also testified that
there
was “Work Practice Manual” containing the disciplinary
procedures of the firm, but this was not introduced into
evidence
during the trial. When she was asked under cross-examination
whether it was not the South African practice to present
charges
first and then hear evidence of witnesses, her response was that it
was the Japanese approach to present a letter. When
she was asked if
any witness had been called to confirm that the applicant was
intoxicated on 31 January 2005, Verster did not
answer directly, but
said that the firm wanted to see what CX’s response would be,
once he had considered the letter given
to him that morning.
[23]
Verster said she had drafted the letter given to the applicant on 1
February 2005 based on reports from other staff members.
The
respondent did not contend that any witnesses were called except to
the extent that Verster had given her account of what she
knew of the
previous day’s events. As the allegations concerning her
telephone conversation with the applicant and his failure
to return
to the office were within her personal knowledge, that part of the
letter dealing with that would have been based on
her own knowledge.
[24]
Minato played the role of complainant and chairperson in the meetings
on 1 February 2005, according to Verster. He was the
one who raised
the issues set out in the letter, which she had drafted on his
instruction. Mr Takeda, another manager, apparently
took minutes of
the meeting, but no copy of these minutes was handed in as evidence.
Other
issues
[25]
Verster was tested under cross-examination about the company's zero
tolerance towards alcohol abuse. She explained that in
the context of
a driver the company simply could not take risks. Nevertheless, the
policy on alcohol abuse was to provide an opportunity
for
rehabilitation, which is what the company did.
[26]
Under cross-examination, CX was challenged on his assertion that the
dismissal was on account of him mentioning his HIV status
to the
respondent. In particular, it was put to him that it was improbable
that the company would have dismissed him two years
after he had
revealed his status if that was the real reason for his dismissal. CX
was adamant that the employer had, during this
period, sought grounds
for his dismissal such as suggesting that he was intoxicated when he
was not. He could not suggest the reason
why the company, in
particular, might have chosen to make false allegations about him
being intoxicated as a way of justifying
his dismissal.
[27]
It must also be mentioned that, in general, the applicant denied the
truth of any of the findings of misconduct contained in
the warning
letters. The only one which he conceded contained a grain of truth
was the warning of 18 August 2004. He said that
it was true there had
been an altercation at the garage but he denied he had been
intoxicated and he had done nothing wrong in
disputing the payment
demanded by the garage attendant.
[28]
At first, CX also denied that Verster had bailed him out when he was
arrested for drunken driving, but then conceded that she
had indeed
come to help him. He insisted that on that occasion he had been using
cough mixture rather than consuming liquor, and
had been arrested for
that reason. Although this incident was not directly relevant to any
of the complaints contained in the warning
letters, it is relevant to
the attitude of Verster, and the respondent, towards the applicant.
It is also indicative of CX’s
general response to any evidence
tendered by the employer. The pattern of his responses was to
initially baldly deny an allegation,
seemingly as a matter of
principle, and then to make concessions later.
[29]
Another
fact mentioned by Verster in her evidence was that even though the
company dismissed the applicant, it paid him a gratuity
equivalent to
what he would have received as a severance package if he had been
retrenched, less the amount of an outstanding loan
he owed. This was
not challenged. Evaluation
Claim
of automatically unfair dismissal
[30]
It was common cause that the applicant had originally revealed his
HIV status to Verster in March 2003 and had voluntarily
disclosed it
again to Minato on the day of his dismissal in 2005. The applicant's
case that his HIV status was the real reason
for his dismissal rested
solely on his claim that the relationship changed after he first made
it known to Verster. As evidence
of the change in the relationship he
said he had been given increased amounts of office work. An increase
in his office duties
is also consistent with the period during which
he was not allowed to drive following the warning in May 2003. He
also suspected
that once Verster knew of his HIV status, the company
was looking for a legitimate reason to dismiss him. Clearly, if CX
had been
dismissed on account of his HIV status that would have been
an automatically unfair dismissal.
[31]
However, the largely undisputed portions of the evidence do not
support this claim. Firstly, the applicant was very nearly
dismissed
in January 2003, which was before anyone in the company knew of his
HIV status, even on his own account. Secondly, the
misconduct for
which he was nearly dismissed at that time was his unexplained
absence from the office. This complaint was a recurrent
theme in
subsequent disciplinary action taken against him after the company
knew of his HIV status. The consistency in this respect
between his
previous disciplinary record and his subsequent disciplinary record
tends to undermine the applicant's contention that
the respondent was
looking for an artificial reason to dismiss him once it learnt of his
status. On the contrary, it would appear
that the applicant’s
discovery of his condition did not alter an established pattern of
misconduct.
[32]
Thirdly, there was no evidence to suggest that Verster ever divulged
the applicant's status to any of the directors before
he did so
himself to Minato on 1 February 2005. Thus, based on the
evidence, it follows that none of the directors had knowledge
of his
HIV status until the day of his dismissal. Consequently, the
disciplinary steps taken against the applicant between January
2003
and his dismissal in February 2005, all of which were approved by the
directors, can hardly be attributed to a complicated
conspiracy on
their part to try and cloak an automatically unfair dismissal in an
acceptable guise. Moreover, Verster also testified
that the
respondent currently employed other staff living with the HIV virus.
[33]
For these reasons, I am not satisfied that the applicant’s HIV
status was a reason for his dismissal, let alone the main
or only
one. Consequently, the applicants’ claim of an automatically
unfair dismissal relating to his HIV status must be
dismissed.
Was
the applicant's dismissal for misconduct substantively unfair?
[34]
The first point that needs to be made in this regard is that the
applicant never appealed against any of the written
warnings he
was issued with. His explanation for accepting all of them when they
were issued to him was that he was told he would
be dismissed if he
did not do so. I am disinclined to accept this explanation for the
following reasons. If it was the employer's
intention to make the
applicant accept warnings under duress, then it is difficult to
understand what appears to have been its
generally accommodative
approach in disciplining the applicant.
[35]
For example, despite the applicant facing possible dismissal in
January 2003, the company relented and paid for him to attend
a
rehabilitation programme. Further, after he had been involved in two
accidents in a company vehicle, which he was not supposed
to be
driving at the time, instead of dismissing him, the company gave him
office duties. In August 2004, he was once again warned
for his abuse
of alcohol and given a further chance, despite already having been on
a second detoxification course earlier that
year. Moreover, one might
have expected the firm to have capitalised on the two incidents of
unauthorised use of the company vehicle
and making a
misrepresentation to the insurer, by way of a more sever sanction.
Quite apart from its very gradual approach to taking
disciplinary
action, such a coercive approach is at odds with Verster bailing the
applicant out when he was arrested for drunken
driving.
[36]
It is trite law that disciplinary steps which are not challenged
timeously cannot be challenged belatedly when the final step
of
dismissal is taken. If the applicant had been intimidated into
accepting the warnings, and if he believed that any appeal would
be
futile, there is no explanation why he did not approach the CCMA over
such a long period of time to challenge any of them as
he could have
done.
[37]
In the circumstances, there is no good reason to disregard the
accumulated disciplinary history of the applicant. In the main,
this
history indicated a constant problem with his unexplained extended
absences from the office after running errands or collecting
passengers. The situation never seemed to improve. Secondly, even
though it was common cause that the applicant was not an alcoholic
as
such, there was a clear trend of complaints indicating alcohol abuse
on his part. On the second occasion he attended a detoxification
program, the extrinsic evidence of the letter from the rehabilitation
centre tends to confirm that he did so voluntarily, which
suggests he
also realised he had a problem.
[38]
Turning to the evidence concerning his absence from work on 31
January 2005, there is a conflict between his evidence and that
of
Verster. According to CX he had advised his passenger, another staff
member, whom he had dropped at the firm’s office,
that he was
going to the doctor. Further, he said that he had told Verster when
she phoned him that he was ill and that he would
come the following
day. Her evidence was that when she phoned him on Monday he had said
he was on his way back from Rapid Motors,
but that he never appeared,
and he never indicated he was at the doctor.
[39]
Verster also testified that on the following day CX had raised the
question of his HIV status in the context of him explaining
to her
and Minato that the reason for his absence on Monday was that he and
his girlfriend had an altercation for the reasons mentioned
previously. The applicant does not dispute that he disclosed his HIV
status to Minato on 1 February 2005, but denies he spoke of
any
altercation. It seems more probable to me that he would have done so
in the context of explaining his absence the previous
day, which
accords better with Verster’s version.
[40]
In general, I also believe the applicant was a less reliable witness
than Verster. A factor which makes me more inclined to
accept
Verster’s version is that the applicant directly contradicted
the supplementary pre-trial minutes which had been agreed
to on the
day the trial commenced. In the minutes the applicant confirmed that
he had received the various disciplinary letters
referred to above,
yet in his evidence he initially sought to deny receiving them.
Later, he grudgingly conceded his knowledge
of the warnings. I
have already mentioned that on other occasions in his evidence the
applicant initially denied the respondent’s
version and later,
without feeling any need to explain his change of course, recanted on
his earlier bald denials. I am therefore
inclined to be more
sceptical of his evidence where it was not independently corroborated
by other evidence or inherently probable.
[41]
Accordingly, I find that it is more likely that, on Monday 31 January
2005, CX did tell Verster that he was returning to work,
but on the
next day explained that his absence was owing to the altercation he
had with his girlfriend. He never seriously disputed
the claim that
he had been given a strict instruction to report to Verster after
returning from Rapid Motors. He also did not dispute
the allegation
that he had been parking in the basement, contrary to numerous
instructions not to.
[42]
On the company's claim that he had admitted he had been drinking, or
alternatively, that he had conceded that he had avoided
the office
because he was scared of being tested, once again it is a matter of
Verster's word against his. However, given the fact
that Verster’s
evidence was hearsay and surmise, and no independent witnesses were
called to support this claim, I do not
think there was sufficient
evidence to support this finding.
[43]
Taken as a whole, I am satisfied that the last incidence of the
applicant’s unexplained absence from
work and his failure to
comply with an instruction to return to work was yet another in a
fairly long line of instances of non-compliance
with previous
warnings about his work habits, and the respondent was justified in
concluding that matters had reached a point that
he was unlikely to
change. In the circumstances, I am satisfied that dismissal was an
appropriate sanction for this misconduct
even if the finding that he
was intoxicated could not be sustained.
Was
the applicant’s dismissal procedurally unfair?
[44]
For the reason already mentioned nothing really hangs on Verster’s
testimony that the applicant was advised on the morning
of 1 February
2005, to consider the letter setting out the complaint against him
and that he could obtain legal representation.
There was also no
evidence to suggest that he was advised that he could question
management witnesses and call his own witnesses
if he wished to. In
this regard it is important to mention that Verster did not seek to
contradict the applicant’s evidence
that he had challenged the
company to produce a witness to support its claim that he was
intoxicated on 31 January 2005.
[45]
Apart from what Verster might have said, the only other evidence
tendered by the company at the meetings that day was what
was set out
in the letter. Neither the applicant nor Verster mentions
anyone else testifying as a witness, though it seems
reasonable to
assume that Verster did relate her telephonic conversation with the
applicant of the previous day and that he related
his version of the
altercation to explain his failure to come to work.
It
is less clear whether there was an original letter presented to the
applicant at the first meeting which was then amended to
reflect that
a discussion had taken place. Certainly, it is true that there is
scant reflection of the applicant’s defence
and why it was
rejected. There was also no explanation provided why the minutes
supposedly taken by Mr Takeda were never tendered
in evidence.
[46]
Item 4 of
Schedule 8 of the Labour Relations Act, 66 of 1995 (‘the LRA’)
does not stipulate an entitlement to call witnesses,
or the need to
lead evidence as such. In the much cited case of
Avril
Elizabeth Home for the Mentally Handicapped v CCMA & others
(2006)
27
ILJ
1644 (LC)
Van
Niekerk AJ (as he then was) said, at 1651C-1652G:
“
To
some extent, chapter VIII of the
Labour Relations Act represents
a
codification of the jurisprudence that preceded it. The Act
itself is silent on the content of any right to procedural
fairness,
it simply requires that an employer establish that a dismissal was
effected in accordance with a fair procedure. The
nature and extent
of a right to fair procedure preceding a dismissal for misconduct is
spelt out in specific terms in the Code
of Good D Practice: Dismissal
in schedule 8 to the LRA.
Item
4 of the code provides:
'(1) Normally,
the employer should conduct an investigation to determine whether
there are grounds for dismissal.
This does not need to be a formal
enquiry. The employer should notify the employee of the allegations
using a form and a language
E that the employee can reasonably
understand. The employee should be allowed the opportunity to state a
case in response to the
allegations. The employee should be entitled
to a reasonable time to prepare the response and to the assistance of
a trade union
representative or fellow employee. After the enquiry,
the employer should communicate the F decision taken, and preferably
furnish
the employee with written notification of that decision.'
(Emphasis added.)
It
follows that the conception of procedural fairness incorporated into
the LRA is one that requires an investigation into any alleged
misconduct by the employer, an opportunity by any employee against
whom any allegation of misconduct is made, to respond
after a
reasonable period with the assistance of a representative, a decision
by the employer, and notice of that decision.
This
approach represents a significant and fundamental departure from what
might be termed the 'criminal justice' model that was
developed by
the Industrial Court and applied under the unfair labour practice
jurisdiction that evolved under the 1956
Labour Relations Act. That
model likened a workplace disciplinary enquiry to a criminal trial,
and developed rules and procedures, including rules relating
to bias
and any apprehension of bias, that were appropriate in that context.
I
The
rules relating to procedural fairness introduced in 1995 do not
replicate the criminal justice model of procedural fairness.
They
recognize that for workers, true justice lies in a right to an
expeditious and independent review of the employer's decision
to
dismiss, with reinstatement as the primary remedy when the substance
of employer decisions is found wanting. For employers,
this right of
resort to expeditious and independent arbitration was intended not
only to promote rational decision making about
workplace discipline,
it was also an acknowledgment that the elaborate procedural
requirements that had been developed prior to
the new Act were
inefficient and inappropriate, and that if a dismissal for misconduct
was disputed, arbitration was the primary
forum for determination of
the dispute by the application of a more formal process.
The
balance struck by the LRA thus recognizes not only that managers are
not experienced judicial officers, but also that workplace
efficiencies should not be unduly impeded by onerous procedural
requirements. It also recognizes that to require onerous workplace
disciplinary procedures is inconsistent with a right to expeditious
arbitration on merits. Where a commissioner is obliged (as
commissioners are) to arbitrate dismissal disputes on the basis of
the evidence presented at the arbitration proceedings, procedural
requirements in the form that they developed under the criminal
justice model are applied ultimately only for the sake of
procedure,
since the record of a workplace disciplinary hearing presented to the
commissioners at any subsequent arbitration is
presented only for the
purpose of establishing that the dismissal was procedurally fair. The
continued application of the
criminal justice model of
workplace procedure therefore results in a duplication of process,
with no tangible benefit to either
employer or employee.
The
signal of a move to an informal approach to procedural fairness is
clearly presaged by the explanatory memorandum that accompanied
the
draft Labour Relations Bill. The memorandum stated the following:
"The
draft Bill requires a fair, but brief, pre-dismissal procedure ...
[It] I opts for this more flexible, less onerous, approach
to
procedural fairness for various reasons: small employers, of whom
there are a very large number, are often not able to follow
elaborate
pre-dismissal procedures; and not all procedural defects result in
substantial prejudice to the employee."
On
this approach, there is clearly no place for formal disciplinary
procedures that incorporate all of the accoutrements of
a
criminal trial, including the leading of witnesses, technical and
complex "charge-sheets", requests for particulars,
the
application of the rules of evidence, legal arguments, and the like.”
[47]
I agree with the general thrust of the learned judge’s
reasoning that the legislature intended that internal hearings
should
not be unduly prolonged by an inappropriate adherence to the rules of
formal proceedings. However, I think that there might
be aspects of
an attenuated informal process which should at least be canvassed
with the accused employee at the outset of the
process. Thus, in this
instance, the applicant was not advised that the employer had no
intention of relying on formally presented
oral evidence, but would
decide the matter solely on the case which was set out on in its
letter, subject to what he and Verster
might say in the informal
discussion. I believe that the applicant should at least have been
advised of this so he would be aware
of the extent to which the
process of airing of the issues would be curtailed and, in
particular, that other witnesses would not
be called. This was all
the more necessary in the context of him being unrepresented.
[48] The overall
impression one is left with, is a somewhat stilted and limited
interaction between the applicant and his accusers
in which he had no
independent person to consult with, or to witness the conduct of the
proceedings, let alone to speak for him
with the relatively greater
impunity that a representative, who is not themselves facing the risk
of disciplinary action, normally
enjoys. The right of representation
is an important one, as recognised by Farber AJ in
Molope v
Commissioner Mbha & others
(2005) 26
ILJ
283 (LC)
:
“
Representation
is not a matter of discretion. Nor is it tied to the exercise of a
prerogative or an indulgence. It is a matter of
entitlement and it
will generally require very weighty considerations before an employee
falls to be deprived of the right foundational
thereto.”
[1]
[49]
Consequently, I am of the view that there were some significant
procedural deficiencies in the conduct of the applicant’s
dismissal process, and an appropriate award of compensation should be
made, which I believe should be four months’ remuneration.
Costs
[50]
The applicant was only partly successful in his alternative claim and
failed in his main claim. In the circumstances, I believe
each party
should bear its own costs.
Order
[51]
In the light of the analysis,
51.1
I find that the applicant’s dismissal for misconduct was
substantively fair but procedurally
unfair.
51.2
The respondent must pay the applicant an amount of compensation
equivalent to four months’ remuneration,
being R 18, 504 -00
within 10 days of the date of this judgment.
51.3
Each party must pay its own costs
_______________________
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
D E Nkabinde of D E Nkabinde Attorneys
FIRST
RESPONDENT:
G Fourie, instructed by B Matheson
[1]
At 292B-C. See also the authorities cited by the learned judge at
291H-292B of the same judgment.
[i]
Name
of Applicant substituted to preserve his anonymity