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[2012] ZALCCT 28
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South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others (C 1147/10) [2012] ZALCCT 28 (25 July 2012)
Not reportable
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C 1147/10
In the matter between:
SA POST OFFICE LTD
Applicant
and
CCMA
First Respondent
JW MCGAHEY N.O.
Second Respondent
COMMUNICATION WORKERS’ UNION
Third Respondent
S NODLAYIYA
Fourth Respondent
Heard
:
5 June 2012
Delivered
:
25 July 2012
Summary:
Review – LRA s 145 – appropriate remedy.
JUDGMENT
STEENKAMP J
Introduction
This is an application to have an arbitration award reviewed and set
aside in terms of s 145 of the Labour Relations Act
1
.
The arbitrator (second respondent) found the dismissal of the
employee (fourth respondent) to have been substantively and
procedurally unfair. The applicant (SAPO) had dismissed the employee
on 15 September 2010. The arbitrator ordered SAPO to reinstate
him
with effect from 15 December 2010 in a non-supervisory position at
the same level or one level below his previous job; and
that he be
paid a rate for the job in which he is placed. The effect of the
award is that the employee would effectively be suspended
for three
months without pay; and that he could effectively be demoted.
Background facts
The employee worked at the post office for almost twenty years. At
the time of his dismissal, he was a depot controller.
In May 2010 the employee found a parcel in a delivery cage at the
depot. It appeared to have been opened slightly and he opened
it
further. He took it to his office and placed it in a drawer in a
filing cabinet. He claims that he forgot about it until a
search was
launched four months later.
In an internal disciplinary hearing, the employee acknowledged that
he had committed misconduct by delaying the delivery of mail
and by
tampering with mail without authorisation. Both are dismissible
forms of misconduct according to SAPO’s disciplinary
code.
However, the code also provides for a final written warning,
depending on mitigating circumstances. After the chairperson
of the
hearing took mitigating and aggravating factors into account, he
decided on dismissal as the appropriate sanction.
The arbitration award
The arbitrator acknowledged that “this was a very difficult
case to decide” as both parties had presented plausible
versions. He accepted that the following was common cause:
The employee broke company rules by opening the parcel and delaying
its delivery by four months.
These are serious offences which affect the core business of SAPO.
Both are dismissible for a first offence.
The employee knew the rules.
In deciding on the fairness of the sanction, the arbitrator relied
heavily (his words) on the judgment in
Sidumo & ano v
Rustenburg Platinum Mines Ltd. & ors.
2
He noted that there are significant similarities between the two
cases:
Both cases concern an employee with long service and a clean record
(Sidumo had 15 years’ service);
Both cases concern an employee who failed to carry out a core
function;
In both cases no loss was incurred by the employer;
In both cases no dishonesty was proven;
The arbitrator suggested that in both cases the best description of
the misconduct was one of gross negligence.
They differ in that Sidumo was not in a senior (supervisory)
position.
The arbitrator was guided as follows, relying on
Sidumo:
“
I must not defer to the [employer’s]
decision.
The criteria [
sic
] to be used is one of my own sense of
fairness.
I must take all the factors into consideration and properly
determine if corrective discipline properly applied was a more
appropriate approach.”
The arbitrator concluded that the employee had been grossly
negligent. He also concluded that he was unsuitable as a manager.
But, having regard to
Sidumo
, he took into account the
employee’s long clean service of twenty years and the absence
of dishonesty. He accepted that
the employee could no longer be
trusted in a supervisory role, but expressed the view that “the
issue for me is whether
or not this would be the case in a more
junior role.”
With regard to procedural fairness, the arbitrator found that the
chairperson was not biased (as the employee had alleged). However,
he found it “problematic” that the chairperson had
decided “to move straight from the admission of guilt to
aggravating and mitigating factors without testimony.” He
found that the chairperson should have heard evidence as to the
“good reason” the employee proffered for having
committed the misconduct. He found the omission to do so to render
the dismissal procedurally unfair.
The arbitrator took all of these factors into account in making his
award in terms of s 193 of the LRA. He noted that gross negligence
is not listed in Schedule 8 Item 4 as a dismissible offence for a
first offender. He found no dishonesty and no direct loss to
SAPO.
He took into account the employee’s long service and clean
disciplinary record. He found that the employee had committed
the
misconduct in question but that the sanction of dismissal was
unfair. He then ordered reinstatement on the basis set out
above.
Grounds of review
The applicant raised the following grounds of review:
The arbitrator misconceived the nature of the enquiry and failed to
apply the proper test for determining whether the employee’s
dismissal was fair;
The arbitrator exceeded his powers;
The arbitrator failed to apply relevant legal principles;
The arbitrator failed to failed to evaluate the evidence properly;
The arbitrator failed to apply his mind to the dispute;
The arbitrator failed to weigh up evidence and make a credibility
finding where required;
The finding that the dismissal was procedurally unfair exceeded his
agreed terms of reference.
I will deal with these grounds of review under the three broad
headings of the general approach to fairness of dismissal;
procedural
fairness; and the reinstatement into a non-supervisory
position.
Evaluation / Analysis
The general approach to the fairness of the dismissal
In my view, the arbitrator’s general approach to the question
of sanction – having regard to the fact that the employee
did
not dispute the misconduct – was not unreasonable. He had
regard to the factors outlined in
Sidumo
and carefully
applied his mind to those factors. His approach to the fairness of
dismissal, as outlined in paragraph [7] above,
is a reasonable
summation of the law.
Another arbitrator may have found the misconduct sufficiently
serious to warrant dismissal; but the arbitrator’s finding
in
this regard, taking into account the seriousness of the misconduct,
the employee’s long service of twenty years and
the fact that
it was his first offence, is not so unreasonable that no other
arbitrator could have come to the same conclusion.
In this regard,
it is to be noted that the applicant’s disciplinary code
provides for either dismissal or a final written
warning as the
prescribed sanction for the misconduct in question, depending on
mitigating circumstances.
Procedural fairness
The arbitrator’s finding on procedural fairness is more
problematic. The employee did not rely on these grounds at the
arbitration proceedings. He accepted that he had committed the
misconduct; and that the only question to be decided was that
of
sanction, based on mitigating and aggravating factors.
In coming to a contrary conclusion, the arbitrator exceeded his
powers. This ground of review must succeed.
Reinstatement in a non-supervisory position
The arbitrator’s decision on the appropriate remedy appears,
at first blush, to be reasonable. He accepts that the employee
can
no longer be trusted in a supervisory position, but that dismissal
is too harsh a sanction. The
via media
of reinstating him in
a non-supervisory position, possibly at a lower salary, and coupled
with an effective unpaid suspension
of three months would appear to
address both the aim of corrective discipline and the question of
trust; but was the arbitrator
empowered to impose such a sanction in
terms of s 193 of the LRA?
No evidence was led at arbitration as to whether a suitable
alternative post existed.
Section 193(1) provides that:
“
(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
re-instate 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.”
The arbitration award may appear to be contemplated by s 193(1)(b)
insofar as SAPO was ordered to reinstate the employee “...
in
other reasonably suitable work on any terms and from any date not
earlier than the date of dismissal”; but the difficulty
is
that the subsection uses that phrase in the context of re-employment
and not reinstatement.
In the recent case of
Director-General: Office of the Premier of
the Western Cape & ano v SAMSA obo Broens & ors
3
the Labour Appeal Court had occasion to discuss a similar order.
In that case, the arbitrator had ordered the employer to reinstate
the employee in a “non-clinical equivalent position”
to
the one he had held formerly, as he was not medically suited to be
reinstated into his former post. The Labour Court declined
to review
the finding and award of the arbitrator.
On appeal, the LAC upheld the finding of the court
a quo
with
regard to the arbitrator’s principal finding; however, with
regard to the question of reinstatement into an alternative
position, the court held:
“
The
difficulty with the award is that there was no evidence that there
was a designated post into which Dr Broens could be placed;
no such
evidence had been placed before [the arbitrator]. Had [the
arbitrator] called for such evidence, he could then have determined
whether it was possible, under the circumstances of this case and the
organisation of [the employer], to appoint Dr Broens into
a
non-clinical position...
[T]he only alternative remedy
which was reasonably available to [the arbitrator] was to award
compensation for unfair dismissal.
Hence, this dispute falls within
the framework of s 193(2)(c) of the Act, namely it is a case where
reinstatement or reemployment
cannot be required because it is not
reasonably practicable for the employer to reinstate or reemploy the
employee. Accordingly,
the appropriate remedy in this case would have
been to grant the maximum compensation, pursuant to s 194(1) of the
Act, that is
12 months’ remuneration calculated at the
employee’s rate of remuneration on the date of dismissal.”
In this case, a similar situation prevails. The arbitrator did not
hear any evidence with regard to the availability of a
non-supervisory
position. In making the order that he did, he
exceeded his powers.
Conclusion
The award is reviewable for the reasons set out under the second and
third sub-headings above. It may be that another arbitrator
could
come to a similar conclusion with regard to the proper order to be
made, once he or she had heard evidence on the suitability
and
availability of other positions; but in order to evaluate that
aspect, the matter has to be remitted to the CCMA.
Given these findings, I do not believe a costs order to be
warranted.
Order
The arbitration award made by the second respondent under the
auspices of the first respondent under case number WECT 13597-10
dated 2 December 2010 is reviewed and set aside. The matter is
remitted to the first respondent for an arbitration
de novo
before an arbitrator other than the second respondent.
There is no order as to costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
G Elliot
Instructed by
Maserumule Inc (G J Cassells).
FOURTH RESPONDENT:
EJ Simons of Simons Van
Staden.
1
Act
66 of 1995.
2
(2007)
28
ILJ
2405 (CC).
3
Unreported,
case no CA 5/2011 (26 April 2012) [coram Davis JA, Molemela AJA and
Murphy AJA concurring] paras [13] – [15].