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[2012] ZALCCT 43
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HRP Distribution v National Bargaining Council for the Road Freight Industry and Others (C 158/2011) [2012] ZALCCT 43; [2013] 3 BLLR 283 (LC) (13 November 2012)
Reportable
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
case
no: C 158/2011
In the matter between:
HRP DISTRIBUTION
Applicant
and
NATIONAL BARGAINING COUNCIl FOR THE ROAD FREIGHT INDUSTRY
First Respondent
D AMERICA N.O.
Second Respondent
ALTA CLAYTON
Third Respondent
Heard
:
6 November 2012
Delivered
:
13 November 2012
Summary:
Review – misconduct – finding within
range of reasonable outcomes – not reviewable.
JUDGMENT
STEENKAMP J
Introduction
What happens at home, stays at home. The third respondent, Ms Alta
Clayton – an employee of the applicant who was based
at @Home,
a division of Foschini – should have taken this aphorism to
heart, instead of taking her involvement in a love
triangle into the
workplace. Her subsequent behaviour led to her dismissal; but the
arbitrator (the second respondent) found
that it was unfair and
ordered the applicant to reinstate her. The applicant seeks to have
that award reviewed and set aside
in terms of section 145 of the
Labour Relations Act.
1
Background facts
The applicant company distributes goods to a number of retailers.
The Foschini Group is its biggest customer. The employee, Ms
Clayton, was employed by the applicant and based at @Home, a
division of Foschini. She was involved in a sexual relationship
with
one Freddy
2
,
a fellow employee. The relationship soured and Freddy turned his
attentions to Ms Levonia Boer, an employee of Foschini. Clayton
did
not take kindly to this state of affairs. She sent Boer a number of
unflattering emails. She also left a black lace night-dress
(in an
envelope) on Boer’s desk, together with a handwritten note
setting out in fairly lurid detail her sexual adventures
with Freddy
while he was living with Boer, and a description of his tattoos.
The applicant company formed the opinion that these shenanigans led
to the company’s name being brought into disrepute
with
Foschini. It sent Clayton a letter forbidding her to make further
contact with Boer. It transpired that, despite this, Clayton
sent
Boer at least one more email message. The applicant then called
Clayton to a disciplinary hearing to answer to the following
allegations of misconduct:
Failure
to obey a reasonable and lawful instruction
Failure to adhere to an
instruction via email of the 29
th
October 2010 sent by Len
Swanepoel not to make contact with Levona [Boer] again making use of
the company’s equipment in
company time and via company email
system thereby bringing the company name into disrepute with an
important client namely Foschini.
Unacceptable
behaviour
In that you harassed an employee
of HRP’s biggest customer by way of sending emails and dropping
envelopes with private and
intimate clothing on her desk at the
workplace thereby causing embarrassment to the company’s
management and bring the name
of HRP into disrepute.
Gross
misconduct – failing to comply with the company email policy.
In that you were making use of
the company email system by sending private and offensive emails to
an employee of a major customer.
The applicant found that the employee had committed the misconduct
and dismissed her. She referred an unfair dismissal dispute
to the
Bargaining Council (the first respondent).
The arbitration award
The arbitrator dealt with each of the three allegations of
misconduct. He found that the employee had not committed the
misconduct
complained of in the first two instances. He found that
she had contravened the email policy, but that the company had not
applied
it consistently, and that her conduct was not gross. In
these circumstances he concluded that the sanction of dismissal was
not
fair and that the employee should be reinstated retrospectively.
Review grounds
The applicant based its review application on the main ground that
the award was unreasonable.
In amplification, it raised the following three (fairly vague)
grounds of review:
The arbitrator committed a gross irregularity in that he did not
apply his mind to the evidence presented.
The arbitrator committed an irregularity and acted unreasonably by
finding that the sanction of dismissal was unfair.
The arbitrator reached a conclusion without properly applying his
mind to the evidence.
Evaluation / Analysis
The test to be applied is that outlined in
Sidumo & another v
Rustenburg Platinum Mines Ltd & others
3
,
viz whether the conclusion reached by the arbitrator was so
unreasonable that no other arbitrator could have come to the same
conclusion.
In his written and oral argument, Mr
Jackson
, for the
applicant, dealt with each of the allegations of misconduct and the
arbitrator’s findings , before dealing with
the question of
sanction. I shall follow the same sequence.
First charge: failing to obey a reasonable instruction
The arbitrator found that the company had failed to prove on a
balance of probabilities that the employee had failed to obey
the
instruction sent to her on 29 October 2010 not to make contact with
Boer again. He found that, although the branch manager,
Len
Swanepoel, had sent the employee an email with that instruction at
16h05 on 29 October 2010, the evidence did not establish
that she
read it on that day. The evidence did establish that she “modified”
the email at 07h29 on 1 November 2010.
She had sent Boer an email
shortly before that. The arbitrator found, on a balance of
probabilities, that Clayton had probably
sent the email to Boer
before she had read Swanepoel’s email.
The applicant complains that the arbitrator “ignored proof”
that the email of 29 October was received by Clayton
at the same
time it was sent, i.e. 16h05 on 29 October. That is simply not
correct. The arbitrator accepted that the email was
“received”
at that time; however, the arbitrator correctly pointed out that
that was not proof that it was read at
the same time. In fact, the
evidence that the applicant relies upon – a computer printout
– shows that the email
was “received” at that
time, but also clearly notes that no “read receipt” was
requested or provided.
At most, it serves to prove that the email
appeared on the employee’s email server at that time. It is
highly improbable
that it could have been read at exactly the same
time it was sent. On this ground, the arbitrator’s award
cannot be faulted.
What the arbitrator did disregard, was an interjection by Clayton
while Swanepoel was being questioned by his representative.
While he
was being questioned about the email, he referred to the printout
reflecting that it had been “modified”
and he expressed
the opinion that Clayton may have deleted the email; it appears from
the transcript that she then interjected
to state that she had
printed it. In response to a further question by the arbitrator, she
stated that she printed it “after
4” on 29 October 2010.
When Clayton testified, the arbitrator questioned her about this
interjection during Swanepoel’s testimony. She then stated
that her computer had crashed and that she printed it on “the
Monday”. The arbitrator then asked her what date that
was. She
replied: “I think it was the first. The 29
th
”.
It is common cause that the 29
th
of October was a
Thursday. Under cross-examination Clayton repeated that she only
printed it on “the Monday”. The
evidence on this point
is far from clear. At most, it could point to an inference that she
may have read Swanepoel’s email
on the afternoon of 29
October. The failure of the arbitrator to deal with this aspect does
not amount to a gross irregularity.
Had he dealt with it, it is
unlikely that it would have led to a different conclusion on
sanction. It was not a material piece
of evidence. In my view, this
oversight in itself did not prevent a fair trial of the issues and
it does not render the award
reviewable.
Second charge: unacceptable behaviour
It is common cause that Clayton left a night-dress (in a sealed
envelope) and a handwritten letter referring to her relationship
“full of passion for sex” with Freddy, on Boer’s
desk at Foschini. The arbitrator quite correctly considered
this to
be inappropriate behaviour.
The arbitrator did not, however, consider this inappropriate
behaviour to have brought the company’s name into disrepute.
In coming to that conclusion, he considered that “no Foschini
management became involved in the dispute”.
The applicant submitted that Foschini management had, in fact,
become involved. It based this submission on the fact that Boer’s
supervisor, Ms Margo Moses, sent an email to the applicant’s
human resources director, Mr Jack Enright, and to Frank Faro
on 3
November 2010 (after Clayton’s disciplinary hearing had
commenced). Moses complained that Clayton’s actions
were
distracting Boer, who had to give her job her undivided attention
and who had to “be focused at all times”.
She asked the
company to “please get Alta to stop her childishness and tell
her that she must apologise to Levona”.
(Clayton did
subsequently apologise to Boer).
Based on this, the applicant says that “Foschini constituted
55% of applicant’s business and the company could simply
not
afford to lose Foschini as a client”. That is hardly likely.
It beggars belief that a large company like Foschini would
terminate
its contract with a supplier because a junior employee of that
supplier had sent some embarrassing emails of a private
nature to
its junior employee.
Ms Moses is Boer’s supervisor. Depending on one’s
definition of “management”, it is an open question
whether Foschini’s “management” became involved in
the sordid love triangle; at most, Ms Moses expressed concern
about
the effect of Clayton’s childish behaviour on Boer’s
productivity. It is inconceivable that this lover’s
tiff would
have been escalated to board level or that it would have led to the
loss of Foschini as a customer. The applicant’s
protestations
to the contrary amount to gilding the lily. Clayton’s
behaviour, embarrassing and inappropriate as it was,
could not be
seen as bringing the employer into disrepute.
In this regard, the present circumstances are far removed from those
in
Timothy v Nampak Corrugated Containers (Pty) Ltd
4
-- a case on which Mr
Jackson
relied. In
Nampak
, the
employee had been dismissed for having
inter alia
impersonated
an attorney, acting dishonestly and bringing his employer into
disrepute. That could hardly be equated with sending
a few salacious
emails to a customer’s employee “to make her jealous”,
as was Clayton’s intention. As
Davis JA said in
Nampak
5
:
“
A
reasonable decision maker would have engaged in an objective
evaluation as to whether the employee brought the company into
disrepute.
An objective test enjoins an examination, in all the
circumstances, of the nature of the conduct, evaluates the turpitude
and seriousness
thereof and then makes an evaluation as to whether
the charges can be sustained.”
In this case, the employee’s actions, albeit childish and
deliberate, are not of such a serious nature that it can be said
to
have brought the company into disrepute. It does not quite equate to
“turpitude”, i.e. depravity or base action
of the kind
that would bring the company (as opposed to the employee) into
disrepute.
I do not agree that the arbitrator’s finding in this regard –
i.e. that the employee’s actions were not dismissible,
even
though she acted inappropriately – was so unreasonable that no
reasonable arbitrator could have come to the same conclusion.
Charge 3: failing to comply with email policy
It is common cause that the employee did breach the company’s
email policy. However, the arbitrator found that this instance
of
misconduct was not so gross as to justify dismissal. In coming to
this conclusion, he took into account that the company had
not
enforced and applied the policy consistently.
The applicant took issue with this finding, specifically arguing
that the employee’s conduct was “gross” because
of
the “insinuation of criminality” imputed to Boer. But
this email was in response to that of Boer, apparently arising
out
of a further dispute over a cellphone, stating:
“
You
are leaving me no choice but to proceed through Foschini to lay a
formal criminal charge against you.”
Clayton responded in an email in these terms:
“
Be
very very careful ‘criminal’ [
sic
]”.
Clayton was not cross-examined with regard to the meaning of the
email. It does not appear to me to impute criminality to Boer;
inelegantly stated as it is, it could also be read as an exhortation
to Boer not to threaten Clayton with criminal charges.
On this ground, the finding of the arbitrator is also not so
unreasonable that no reasonable arbitrator could have come to the
same conclusion.
Sanction
The arbitrator had regard to
Sidumo
6
and considered the totality of circumstances in order to decide
whether dismissal was a fair sanction. He took into account that:
The parties had not indicated that the employee’s misconduct
had destroyed the trust relationship;
given the employee’s length of service of more than nine
years, progressive discipline had not been properly considered
and
applied;
the employee’s behaviour was inappropriate, but did not
constitute gross misconduct;
the company did not apply the email policy consistently.
Conclusion
The conclusion reached by the arbitrator was not so unreasonable
that no other arbitrator could have come to the same conclusion.
Costs
The employee successfully opposed the application for review. Yet it
does not axiomatically follow that she is entitled to her
costs. In
considering whether to award costs to the successful party, this
court has to take into account both law and fairness.
7
In terms of the arbitration award, she is to be reinstated. The
arbitrator, when reversing the sanction of dismissal, did not
substitute it with a lesser sanction, despite having found that the
employee’s behaviour was inappropriate. I do not consider
it
appropriate to make a costs order for two reasons: firstly, the
parties will have to rebuild their relationship and a costs
order
may have a chilling effect on that exercise. Secondly, the employee
will not be able to recover her own legal costs from
the company.
That may have the salutary effect of persuading her to think twice
before displaying her dirty laundry, whether
of an intimate nature
or otherwise, at her or a customer’s workplace again.
Order
The application for review is dismissed. There is no order as to
costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
B M Jackson
Instructed by Telfer
Inc.
THIRD RESPONDENT:
M R Banderker
Instructed by Halday
attorneys.
1
Act
66 of 1995 (“the Act”).
2
His
surname is not mentioned.
3
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC).
4
[2010]
8 BLLR 830
(LAC).
5
Supra
833 F-H.
6
Supra.
7
LRA
s 162.