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[2012] ZALCJHB 91
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Mosome v General Public Service Sectoral Bargaining Council (GPSSBC) and Others (JR1495/09) [2012] ZALCJHB 91 (31 August 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of interest to other judges
Case no: JR1495/09
In the matter between:
TRUELY
MOSOME
.........................................................................................
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINNING
COUNCIL (GPSSBC)
..............................................
First Respondent
ZARINA
WALELE N.O
.................................................................
Second
Respondent
DEPARTMENT
OF FINANCE
(THE
PROVINCE OF GAUTENG)
....................................................
Third
Respondent
Heard
:
26 April 2012
Delivered
:
31 August 2012
Summary: Review application. Exercise of discretion in terms of
section 193 of the LRA. Consequence of submitting arbitration award
after 14 days- section 138 (7) of the LRA.
judgment
Molahlehi J
Introduction
This is an application to review and set aside the arbitration award
made by the second respondent (the arbitrator) under case
number
PSGA 525-05/06 dated 7 May 20009.
The arbitration award which is the subject of this review was made
consequent to the order, which was made by Cele J on 24 July
2008,
in terms of which the matter was remitted to first respondent to
allow for further evidence to be led by the parties on
whether the
applicant should be reinstated or compensated as envisaged in terms
of section 193 (2) of the Labour Relations Act
of 1995 (the LRA).
The arbitration award was in that regard reviewed to the extent that
it provided for the remedy of compensation
and not reinstatement. In
other words the award was not review and set aside insofar as the
substantive fairness of the dismissal
was concerned.
The arbitration award which was the subject of the review
application that was served before Cele J will in this judgment be
referred to as “the first award” and the one that is the
subject of this review shall be referred to as “the
second
award.” The Arbitrator in the second award found that the
appropriate remedy was compensation and not reinstatement.
Background facts
The applicant, who was prior to his dismissal employment as the
principal trade advisor, was charged and dismissed for several
acts
of misconduct. The focus was however on the charge of
insubordination. The applicant was found guilty and dismissed. At
the arbitration hearing the arbitrator found the dismissal to have
been unfair and ordered compensation and not reinstatement.
In the second arbitration proceedings the Arbitrator was required to
determine an appropriate remedy for the finding that the
dismissal
was substantively unfair. Again as indicated above, the Arbitrator
in the second award found that the reinstatement
would not be
appropriate in the circumstances of the matter.
The focal point in the assessment of what remedy should be made had
to be considered in the context of the charge of insubordination.
The charge of insubordination arose essentially from the written
communication between the applicant and her supervisor, Ms Kekana.
The grounds for review
The applicant has raised several grounds of review in seeking to
have the arbitration award reviewed and set aside. The grounds
of
review are summarised in the applicant’s heads of argument as
follows:
‘
3.1
The Award is challenged on the ground that the Applicant contends
that in the light of evidence that was canvassed, any reasonable
person would agree that justice and fairness demands that the
Applicant be reinstated.
3.4 The second Respondent
refused to order reinstatement of the Applicant on the ground that in
her view the circumstances surrounding
the unfair dismissal of the
Applicant were such that continued employment would be intolerable to
the Respondent and the Applicant.’
The applicant further contended that the arbitration award was
defective because the arbitrator issued it after six months in
contravention of the provisions of section 138 (8) of the LRA which
requires that arbitration award be issued 14 days after the
conclusion of the hearing.
The arbitration award
In the second arbitration award in her analysis Arbitrator Walele,
start by identifying the issues she had to determine. She
confirms
that as it had already been found that the dismissal was unfair the
issue she had to determine concerned whether the
appropriate remedy
was compensation or reinstatement. She then summarises the principle
enunciated in section 193 (2) of the
LRA as providing for an
exception to the general rule that the primary remedy in an unfair
dismissal case is reinstatement. The
exception to the general rule
is however, that an employee may not be reinstated or re-employed
where "circumstances surrounding
the dismissal are such that a
continuous employment relationship would be intolerable.”
In relation to the facts the Arbitrator says that she was not
persuaded that the relationship between the applicant and Ms Kekana
was not "turbulent." The Arbitrator further found that the
letter addressed by Ms Kekana to the employee did not occur
in
isolation and that it was a culmination of events and situation
between the employee and her superior. The reason for the
Arbitrator's conclusion that the relationship between the applicant
and the respondent had irretrievably broken down is dealt
with in
more details later in this judgment.
Evaluation
The respondent has raised a point
in
limine
concerning
the issue of the adequacy of the record. It is common cause that the
record as filed by the applicant is incomplete.
It is undisputed
that the applicant’s attempt to address the issue of the
incomplete record was frustrated by lack of assistance
on the part
of the first respondent. In my view, to order that this matter be
remitted to the first respondent for reconstruction
or rehearing
afresh would defeat the interests of justice and speedy resolution
of this matter, particularly when regard is had
to the period that
it has taken for the matter to reach the stage where it is now. I am
therefore of the view that the matter
should be determined on the
basis of the material before this court.
The second point raised by the respondent is that the applicant is
unsuited because she failed to comply with paragraph 4 of
the
earlier court order, which remitted this matter back to the first
respondent to be determined afresh. It is common cause
that the
applicant did not refund the first respondent the amount she had
received consequent to the first arbitration award.
It is common cause that the issue of non-payment of the amount as
was ordered by the court was discussed between the parties
prior to
the commencement of the arbitration hearing. The parties agreed to
proceed with the arbitration hearing notwithstanding
the
non-compliance with paragraph 4 of the court order by the applicant.
Whilst non-compliance with a court order is a serious matter and
something that should not be tolerated, I am on the basis of
the
agreement of the parties of the view that the point in
limine
regarding the non-compliance of the court order should be dismissed.
The other point raised by the respondent concerns the delay in the
prosecution of the matter.
The applicant has on the other hand, raised a number of grounds upon
which she contends that the arbitration award should be
reviewed and
set aside. The first one concerns the delay by the Arbitrator in
handing down the arbitration award. The applicant
contends in this
respect that the arbitration award was handed down after 14 days
contrary to the provisions of section 138 (7)
(a) of the LRA. This
issue received attention in a number of judgements of the Labour
court.
[17] In
AA Ball (Pty) Ltd v Kolisi,
1
the applicant contended that
a
proper interpretation of section 138(7) of the LRA was that once the
14 days have expired the Commissioner was no longer competent
to
issue an award. In dealing with this issue the court held that:
‘
The
above directions seem to be imperative. The Act is however silent on
what the consequences are if the Commissioner does not
comply with
the time provisions set out in
section
138
of
the Act or if no extension is granted on good cause shown. I do not
understand non-compliance with
section
138
of the Act to constitute a “defect” as envisaged
in
section
145
of the Act. In my view, an award which is handed down a few
days late cannot amount to misconduct in relation to the duties of
the Commissioner (section 145(2)(a)(i)). Neither can it be construed
as a “gross irregularity”(section 145(2)(a)(ii))
or
conduct equal to the Commissioner exceeding the commissioner’s
powers (section 142(2)(a)(iii)).’
In State
Mining Association Ltd t/a Alpha Farm v SACCAWU &
Another
,
2
the court held that:
‘
It is
quite clear that having regard to human nature, an arbitrator may not
always be able to sign and issue an award within the
14-day period.
If a arbitrator were to sign or to issue the award after that period,
it would not be in accordance with the aims
of this Act to visit such
an omission with invalidity. If that were to be done it would simply
mean that the dispute had not reached
finality and the arbitration
proceedings would have to take place
de
novo
.
This could not have been intended. There may, of course, be
circumstances where an award is issued so late that different
consequences
may follow.’
I align myself with the above authorities and find that although the
delay in issuing the award was regrettably excessive it
would not be
in the interest of justice to visit it with invalidity.
The rest of the points raised by the parties in this matter are in
my view, overly technical and did not in any manner advance
the
needs of resolving the dispute speedily within the spirit of the
LRA. In my view the issue that this Court need to concern
itself
with is whether the Arbitrator applied her mind properly in
exercising the discretion given to her by the provisions of
section
193 (1) of the LRA.
3
Reinstatement, re-employment or compensation
The issue of whether an employee who had been unfairly dismissed
should be reinstated received attention in Dunwell
Property
Services CC v Sibande and Others
,
4
where Labour Appeal Court per Ndlovu JA held that:
‘
In
order to determine whether or not an unfairly dismissed employee
should be reinstated, as contemplated in section 193(2) of the
LRA,
the overriding consideration in the enquiry should be the underlying
notion of fairness between the parties, rather than the
legal onus,
and that “[f]airness ought to be assessed objectively on the
facts of each case bearing in mind that the core
value of the LRA is
security of employment.’
The Court further quoted with approval what was said in
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & Others
5
where the Constitutional Court held that:
‘
The
remedies awarded in terms of the provisions of section 193(2) of the
LRA must be made in accordance with the approach set out
in
Equity
Aviation
(
supra
).
That approach is based on underlying fairness to both employee and
employer. It would introduce unwanted and unnecessary rigidity
to
saddle an inquiry into fairness with notions of a legal onus.’
In the present instance the Arbitrator arrived at the conclusion
that compensation was the appropriate remedy after summarising
and
analysing the evidence which were presented before her. It is also
apparent that the Arbitrator took into account the written
submissions which were made by the parties.
In assessing the evidence as was presented by the parties, the
Arbitrator found that she was confronted by two conflicting
versions. The version of the applicant on the one hand, was that the
relationship between her and the respondent had not broken
down. The
respondent on the other hand contended that the relationship had
broken down irretrievably between the parties.
The terms of reference of the Arbitrator has to be understood within
a context where the issues of determining the appropriate
remedy has
to be assessed by having regard to the finding which was made in the
first award, which was that the dismissal was
unfair. In other
words, in addition to exercising her judicial discretion as vested
on her by virtue of the provisions of section
193 of the LRA, the
Arbitrator had a further duty to ensure that in exercising that
discretion she also takes into account the
findings that had already
been made in the first arbitration award. The important aspect of
this consideration is that the court
in reviewing and ordering that
the matter should be remitted back to the first respondent did not
set aside the whole of the
first arbitration award, but only
reviewed and set aside the conclusion reached concerning the remedy.
It therefore means that
the finding made in the first award
concerning the seriousness of the misconduct committed by the
applicant stands and had to
be taken into account in assessing the
fairness to both parties of awarding compensation or reinstatement
or reemployment. In
other words, in assessing the remedy to be made
in terms of section 193 of the LRA, weight had to be accorded to the
finding
on substantive fairness, in particular in as far as it
relates to the seriousness of the offence because the seriousness of
the
offence plays a critical role in the determination of whether
the relationship between the parties has irretrievably broken down.
The finding in the first award is of significant importance in that
in its proper analysis it provided that the requirements
for
awarding the primary remedy as a general rule had been satisfied.
The determination in the second award was to determine
whether the
circumstances that prevailed around the dismissal were such that it
would be inappropriate to reinstate or re-employ
the applicant. In
this enquiry as stated earlier the finding made in the first award
was important in relation to the finding
of the seriousness of the
offence because that in my view caries a significant weight in the
determination of whether the dismissal
was an appropriate sanction
and whether misconduct was so serious as to cause the breakdown in
the relationship between the parties.
In light of the above discussion it is apposite that the finding
made in the first award concerning the substantive fairness
be
quoted in full. In that respect the reasoning as concerning the
finding that the dismissal was substantively unfair is stated
in
that award as follows:
‘
5.7 I
am unable to find the dismissal to have been occasioned by a fair
reason. I accept that the applicant had shown disrespect
towards her
superior, this being Ms Kekana. It will, however, be inimical to
ignore the context in which this had occurred. In
her correspondence
she had used words such as "stupid letters to me." This, I
must hasten to mention, is deplorable.
Kekana was, however, not an
innocent victim.
5.8 She also employed
inappropriate language in her dealing with the applicant. At best, I
venture to say, the applicant should
have been charged with
insolence. There is no doubt in my mind that her conduct related to
impudence. In
Rostoll en ander v Leeupoort Mineral Bron (Edms) Bpk
(1997) 366 (LC) (sic) court condoned an employee who was
disrespectful towards a superior as this was as a result of
provocation.’
Turning to the issue at hand it is trite that in performing the
functions of determining the fairness or otherwise of the dismissal
including determining the appropriate remedy, Arbitrators had to
take into account the facts and the totality of the circumstances
of
the case in question which she failed to do so. In this respect
Waglay DJP in
Motsamai v Reverite Building
Products,
6
in dealing with the issue of sanction had the following to say:
‘
It is
now accepted that when a Arbitrator arbitrates a dispute, it is the
Arbitrator who must decide what is the appropriate sanction
having
regard to: all of the evidence presented to him/her; the company’s
code of conduct; and, of course the nature and
seriousness [of the]
misconduct. The fact that the decision is that of the Arbitrator does
not mean that it can be made in a vacuum.
Like any other decision the
decision that the Arbitrator arrives at in respect of the sanction
must also be one that is reasonable
in all the circumstances.’
In the present instance it is apparent that the Arbitrator rejected
the contention of the applicant that the dismissal was as
a result
of a single incident of a letter she wrote to her superior. The
Arbitrator specifically rejected the contention of the
applicant
that the relationship between her and her superior was not
“turbulent." In this respect the Arbitrator found
that;
"Ample reference is made to situations and work-related issues
prior to the writing of the letter and similarly the
response of the
applicant cements this view that I hold.”
The Arbitrator further reasoned:
‘
The
Applicant’s attempt to persuade me that the relationship
between herself and the superior was not turbulent must fail.
I am of
the view that the letter addressed to the Applicant certainly did not
occur in isolation and that it may very well be the
result of the
culmination of events and situations between the Applicant and her
supervisor. Ample reference is made to situations
and work related
issues prior to the writing of the letter and similarly the response
of the Applicant cements this view that I
hold. I can hardly believe
that Kekana would wake up one morning and decided to address a letter
to the Applicant in the form and
manner that she did ; the Applicant
then simply filled with anger decides to reply to same without
enquiring what may be the reason
for this rebuke from her supervisor.
The Applicant claims that she expected the supervisor to address the
issues with her but does
not do the same and instead angrily replies
to a letter with the intention as she admits to harm her supervisor.
The relationship
between the parties was not sound and this is
evident from the testimony of all the witnesses including the
Applicant. The Applicant
unsuccessfully tried to paint a picture that
all was well and that the disagreements that existed between herself
and Kekana were
always resolved. The Applicant alludes to ‘officials
who think they are Government’ referring to Manamela who she
thought
was behind her dismissal. Manamela is once again a Superior
and she holds this contemptuous view of him when she says he is
boastful
therefore can express a similar view of her. The Applicant
did not shy away when she says that her superiors have to earn her
respect
before she accords them their authority.’
It would seem that the Arbitrator similarly to the finding in the
first award found that an element of provocation was present
in the
circumstances of this case. In this respect the Arbitrator says that
the applicant ought to have made an enquiry first
before acting on
her anger. In considering what sanction to impose the Arbitrator
focuses her attention on the failure of the
applicant to check first
before she acted on her anger.
In my view the Arbitrator ought in her assessment of what relief to
make to have, in the first place, taken into account that
the letter
of the applicant was an unfortunate reaction to the contents of the
letter from her superior. Ms Kekana, had powers
at her disposal to
take action against the applicant if she believed that the applicant
had done something wrong or was not doing
her work as was expected.
Therefore, there was no basis to have used such provocative language
in addressing issues she had with
the applicant. The Arbitrator
ought to have also appreciated that she was not dealing with the
issue of insubordination in its
general sense of refusal to obey
lawful instruction but the offence committed by the applicant had to
do more with insolence
as the first award indicated.
The arbitrator ought to have also taken into account the finding
made in the first award in relation to the other offences for
which
the applicant was charged with. In this respect the arbitrator in
the first award found at paragraph 5.9 to 5.11 that:
‘
5.9
Regarding weekly schedule, I am once again unable to find the
applicant to have failed to obey a lawful and a reasonable
instruction.
In fact I find the applicant’s version in this
regard to be most-probable. She insisted that she had advised Kekana
that
it was practically impossible to submit weekly schedules. If she
had refused to carry out an instruction, why did it take the
respondent
so long to charge her? The charge of insubordination
emerged at a later stage. There was no evidence to suggest that
Kekana did
not accept the applicant’s suggestion on monthly
schedules.
5.10 The applicant was also
charged with insubordination for her refusal to hand over a cellular
phone as well as the respondent’s
office keys. The instruction
may have been lawful, and issued by her superiors. I however do not
believe it was reasonable.
5.11 There was a practice, at
least according to the applicant’s unchallenged testimony,
where employees had been suspended
before but not subjected to this
treatment. None of them had been asked to hand over office keys and
cellular phones. In order
to justify dismissal insubordination must
be serious, persistent and deliberate. See in this regard Chemical
Workers Industrial
Union & another v AECI Paints Natal Pty (1988)
ILJ 1046 (LC). In Metal & Allied Workers Union & Another V
Transvaal
Pressed Nuts, Bolts and Riverts, Pty Ltd, the court refused
to accept as proof of insubordination and employee’s refusal to
clean an area cleaned by a colleague.’
It is also my view that the Arbitrator ought to have taken into
account that the letter was not circulated to other employees
as is
sometimes the case in cases of this nature. Except for the person
who typed the letter the contents of the letter in terms
of the
evidence before the Arbitrator was confined to the applicant and Ms
Kekana. In addition the contents of the letter do
not address
themselves to the management team or other superiors of the
applicant. The letter has to also be read in the context
where, as
the Arbitrator observed, there had been conflict between the two
employees and that the applicant’s reaction
was due to the
anger provoked by the letter of Ms Kekana.
I do not however believe that provocation is an absolute defence
that wipes out the liability of the applicant. This is not a
case
where in a snap of a moment and due to provocation a person launches
an assault on the other. The applicant had all the
time to consider
what she wanted to say as she drafted the letter and possibly edit
it once it was typed.
Because the first award was reviewed only to the extent of the
relief it therefore means that the other findings made therein
had
to be taken into account in the evaluation of the relief to make. It
was found as indicated earlier that the dismissal was
substantively
unfair because the offence was not serious enough to warrant a
dismissal. It is apparent from the reading of the
first award that
the Arbitrator found the offence not to have been serious because of
the provocation and that in fact in the
circumstances of the case
the appropriate charge against the applicant ought to have been
insolence which by implication is less
serious than insubordination.
The inference can also be drawn from the fact that insolence in
general is an aspect of the offence
of insubordination.
In my opinion and in light of the above reasons the arbitration
award of the Arbitrator stands to be reviewed and set aside.
It
would however be unfair and would sent a wrong message if the
employee was to escape liability of her conduct simply on the
basis
of provocation. A clear message need to be sent to her and others
that abusive language whose intent is undermining and
insult their
superiors cannot be tolerated.
Cost
It is trite that in terms of section 162 of the LRA, costs are
governed by the principles of fairness and the law. In the
circumstances
of this case, it seems to me that it was not
unreasonable for the respondent to oppose this application. It would
therefore in
those circumstances be unfair to allow costs to follow
the result.
It cannot be disputed that it took a considerably long time to bring
this matter to finality. It seems to me that the major contributory
factor in this regard has to do with the process of seeking to
reconstruct the record and the delay in the issuing of the award.
It
would in my view be unfair to deny the applicant the primary remedy
only for that reason.
Order
In the premises, the following order is made:
The arbitration award of the second respondent made under case
number PSGA 525-05/06 dated 7 May 2009 is reviewed and set aside.
The arbitration award is substituted with the following award:
‘
1. The respondent is ordered to re-instate
the applicant and issue her with a final written warning.’
In calculating the back pay that the third respondent is in terms
of the reinstatement award required to make, the third respondent
is entitled to take into account the seven month’s payment
the applicant has already received and for which she was ordered
to
repay by the earlier order of the court.
There is no order as to costs.
_______________________
Molahlehi J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT: Ndhlovu A J Attorneys
RESPONDENT: Ncube Inc Attorneys
Billiton
Aluminium SA Ltd t /a Hillside Aluminium v Khanyile & others
[2010]
5 BLLR 465
(
2010
(5) BCLR 422
)
(CC)
139
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration & others
[2008]
12 BLLR 1129
(2009 (1) SA 390)
(CC)
139
Kroukam
v SA Airlink (Pty) Ltd
[2005]
12 BLLR 1172
(LAC)
139
Rustenburg
Platinum Mines Ltd (Rustenburg
Section
)
v CCMA & others
[2006]
11 BLLR 1021
(SCA)
139
Footnotes
1
Act
66
of 1995
.
2
Act
96
of 1991
.
This Act was repealed by the
Immigration Act
13
of 2002
which
came into effect on 12 March 2003.
3
See
Rustenburg
Platinum Mines Ltd (Rustenburg
Section
)
v CCMA & others
[2006]
11 BLLR 1021
(SCA).
4
S
192(2)
of
the
LRA
.
5
At
38 of the indexed record.
6
At
76 of the indexed record.
7
At
77 lines 18–20 of the indexed record.
8
At
54 of the indexed record.
9
Equity
Aviation Services
(
Pty
)
Ltd
v Commission for Conciliation, Mediation and Arbitration & others
2009 (1) SA 390
and
[2008]
12 BLLR 1129
(CC)
at para 36.
10
Equity
Aviation
, above, at para 39.
11
Billiton
Aluminium SA Ltd t /a Hillside Aluminium v Khanyile & others
2010
(5) BCLR 422
(CC)
[also reported at
[2010]
5 BLLR 465
(CC)
– Ed]
.
12
Billiton
Aluminium
,
above, at para 43. Compare:
Kroukam
v SA Airlink
(Pty)
Ltd
[2005]
12 BLLR 1172
(LAC)
at 1203 para 94 and
Rustenburg
Platinum Mines Ltd
(
Rustenburg
Section
)
v
CCMA & others
[2006]
11 BLLR 1021
(SCA)
at para 45.
13
S
193
(1)(c)
of the
LRA
.
14
S
194(1)
of
the
LRA
.
Footnote
[1809] EngR 385
;
1
Act
66
of 1995
.
Footnote
2
Act
96
of 1991
Repealed Act
Act
96 of 1991 has been repealed by
s
54
of
Act
13 of 2002
.
This Act was repealed by the
Immigration Act
13
of 2002
which
came into effect on 12 March 2003.
Footnote
3
See
Rustenburg
Platinum Mines Ltd (Rustenburg
Section
)
v CCMA & others
[2006]
11 BLLR 1021
(SCA).
Footnote
4
S
192(2)
of
the
LRA
.
Footnote
5
At
38 of the indexed record.
Footnote
6
At
76 of the indexed record.
Footnote
7
At
77 lines 18–20 of the indexed record.
Footnote
8
At
54 of the indexed record.
Footnote
9
Equity
Aviation Services
(
Pty
)
Ltd
v Commission for Conciliation, Mediation and Arbitration &
others
2009 (1) SA 390
and
[2008]
12 BLLR 1129
(CC)
at para 36.
Footnote
10
Equity
Aviation
, above, at para 39.
1
(1998)
6 BLLR 560
(LC) at 563 B-D
2
(1998)
19 ILJ 1481 (LC);
1999 (3) BLLR 223
(LC) at
3
Section 193
of the LRA provides as follows:
“
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the arbitrator
may–
(a) order the employer
to reinstate the employee from any date not earlier than the date of
dismissal;
(b) order the employer
to re-employ the employee, either in the work in which the employee
was employed before the dismissal or
in other reasonably suitable
work on any terms and from any date not earlier than the date of
dismissal; or
(c) order the employer
to pay compensation to the employee.
(2) The Labour Court or
the arbitrator must require the employer to reinstate or re-employ
the employee unless–
(a) the employee does
not wish to be reinstated or re-employed;
(b) the circumstances
surrounding the dismissal are such that a continued employment
relationship would be intolerable;
(c) it is not reasonably
practicable for the employer to reinstate or re-employ the employee;
or
d) the dismissal is
unfair only because the employer did not follow a fair procedure.”
4
[2012]
2 BLLR 131
(LAC) at para
5
[2010]
BLLR 465(2010 (5)
BCLR 422) (CC)
6
[2011]
2 BLLR 144
(LAC) at para 22.