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[2013] ZALCJHB 252
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Minister of Home Affairs and Another v General Public Service Sectoral Bargaining Council and Others (JR 2326/2006) [2013] ZALCJHB 252 (1 March 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 2326 / 2006
In the matter between:
MINISTER OF HOME
AFFAIRS
..............................................................
First
Applicant
DEPARTMENT OF HOME
AFFAIRS
.................................................
Second
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
.....................................................................
First
Respondent
Z MDLADLA N.O.
..........................................................................
Second
Respondent
K R MALATJI
.....................................................................................
Third
Respondent
Heard: 26 February
2013
Delivered: …March
2013
Summary:
Bargaining Council arbitration
proceedings – Review of proceedings, decisions and awards of
arbitrators – Test for review
– Section 145 of LRA 1995 –
Requires the arbitrator rationally and reasonably consider the
evidence as a whole –
determinations of arbitrator compared
with evidence on record – arbitrator’s award only party
upheld
Bargaining Council
arbitration proceedings – Review of proceedings, decisions and
awards of arbitrators – assessment
of evidence by arbitrator –
requires determinations of credibility and balance of probabilities –
principles stated
– award party upheld
Disciplinary
proceedings – Employee leaving disciplinary proceedings at the
outset – consequences of such conduct in
respect of fairness
and relief – principles stated
Disciplinary
proceedings – procedural fairness – requirements for
procedural fairness – requirements that hearing
overall fair –
arbitrator’s finding of procedural unfairness unjustified and
unreasonable – determination of
procedural unfairness reviewed
and set aside
Misconduct –
nature of position of the employee – effect thereof on the
charges against the employee – progressive
discipline however
still required
Dismissal for
misconduct / poor performance – difference between the concepts
of misconduct and poor performance – principles
stated –
considering the nature of position of the employee the distinction is
not important – corrective action still
required – award
partly upheld
Unfair dismissal –
issue of relief – finding of reinstatement inappropriate –
award of reinstatement set aside
– compensation ordered
JUDGMENT
SNYMAN, AJ
Introduction
[1] This matter concerns
an application by the applicants to review and set aside an
arbitration award of the second respondent
in his capacity as
arbitration of the General Public Service Sectoral Bargaining Council
(the first respondent). This application
has been brought in terms of
Section 145 as read with Section 158(1)(g) of the Labour Relations
Act
1
(“the LRA”).
Also before the Court is an application in terms of Section 158(1)(c)
of the LRA under case number J 1710/06
to make the same arbitration
award an Order of Court, and both parties were ad idem that the
outcome of the review application
would determine the outcome of the
Section 158(1)(c) application. The Section 158(1)(c) application will
therefore not be dealt
with separately.
[2] The third respondent
was dismissed by the second applicant on 28 April 2005, on a variety
of charges, which will be dealt with
hereunder. In an award dated 14
August 2006, the second respondent determined that the dismissal of
the third respondent by the
second applicant was substantively and
procedurally unfair, and directed that the second applicant had to
fully retrospectively
reinstate the third respondent. In a variation
award dated 30 August 2006, the second respondent directed that the
back pay payable
to the third respondent in terms of the
reinstatement award be limited to twelve months’ salary in the
sum of R533 000,00.
It is these determinations by the second
respondent that forms the subject matter of the review application
brought by the applicants.
Background facts
[3] The third respondent
was employed by the second applicant as the Chief Director: Legal
Resources, commencing his appointment
in this position on 1 April
1998.
[4] It was clear from the
record that the position of the third respondent was a senior and
critical position. In considering and
determining the actual role of
Chief Director: Legal Services, this position can perhaps be best
described using a performance
agreement the third respondent himself
drew up and signed on 15 September 2003, but which was in the end not
signed by the Director
General (“DG”). These duties are
(1) to ensure the efficient management and administration of the
Chief Directorate;
(2) to evaluate, train and develop personnel in
the Chief Directorate; (3) to ensure the proper utilisation of
personnel in the
Chief Directorate; (4) to strive towards the Vision
and Mission of the Department; (5) to ensure the proper management of
Government
property; (6) to uphold discipline in the Chief
Directorate; (7) to strive towards meeting goals and objectives set
out in the
business plan for the Chief Directorate; (8) to ensure
duties allocated to the third respondent as Programme manager are
properly
fulfilled; (9) to ensure strict adherence to the code of
conduct; (10) to ensure the correct application of department
policies,
legislation, regulations and manuals through support and
monitoring; (11) to practice participative management so as to
enhance
a healthy working environment ; and (12) to maintain and
improve the procedures and processes to ensure efficient workflow. I
will
accept that in a nutshell, these are the core functions of the
position of Chief Directorate: Legal Services, as occupied by the
third respondent at all relevant times.
[5] There was some
dispute in the arbitration proceedings as to what the actual duties
and responsibilities of the third respondent
were. I however consider
this dispute to be of no importance, as this matter can be properly
determined simply on the basis of
what the third respondent says his
duties and responsibilities were, as set out above, and I intend to
deal with this matter on
that basis.
[6] In my view, and
considering the evidence on record as a whole, there can be little
doubt that the position of the third respondent
carries with it
significant strategic leadership duties. Since the department at
stake in this instance is that of legal services,
it would actually
be appropriate to compare the position of the third respondent to
that of the senior/managing partner in a law
firm. The position is a
very specialised one, and one of the fundamentals of the position is
to provide direction and effectively
manage staff and resources. The
senior partner must be seen as a leader of the team and set an
example to all subordinates. The
senior partner brings all the
necessary skills and experience and expertise to the party, and must
effectively impart this on the
whole team in such a manner so as to
maintain cohesion in the team and enhance service delivery. Finally,
the senior partner has
to ensure effective communication to the
clients (in this case the Department of Home Affairs) of all matters
attended to by the
team. All these “senior partner”
duties and responsibilities must squarely rest on the third
respondent.
[7] There is however a
complication in this matter. What the record shows is that in 2003, a
new DG was appointed for the second
applicant, being Barry Gilder
(“Gilder”). The evidence showed that one Dikeledi
Tlhagale (“Thlagale”) had
worked for Gilder before in his
previous appointment elsewhere in public service as an advisor of
sorts. Upon becoming the DG of
the second applicant, Gilder then
brought Thlagale into the second applicant. The role of Thlagale was
not supposed be a functional
position, and it appears she did not
report to the third respondent, but reported directly to Gilder. The
problem however was that
the functions actually fulfilled by Thlagale
was principally that of “legal adviser” to the DG, and
this meant that
she would fulfill most of her functions within the
realm of the third respondent, which would, and in the end did, cause
tension
in Legal Services.
[8] I have little
hesitation in concluding that Thlagale was, to use the well known
term, the “trouble shooter” for
Gilder in Legal Services.
This is apparent from an address given to all senior management in
the second applicant at a team building
cession on 25 September 2003.
With specific reference to Legal Services, Gilder stated that:
‘
At
the risk of hurting some feelings here, I have to say that the
Department’s legal services is not highly regarded in the
Department, in the Ministry, with the Portfolio Committee or the
legal fraternity out there. It is another area of internal service
delivery that needs attention. There are concerns that we do not
drive our legislation forcefully and proactively enough, that
we do
not act decisively and effectively enough in relation to litigation
against us, that we are slow to meet deadlines, and that
we often
submit legislation that has not been thoroughly checked and edited. I
have not had enough opportunity to personally pay
attention to what
the problems may be, but it is an area of our work that needs
critical and decisive intervention.’
2
There can be little doubt
that this is aimed at the third respondent and set the tone of what
was to come. It also gives some indication
of the role of Thlagale.
To put it simply, Thlagale was the eyes and ears of the DG in Legal
Services.
[9] The true role of
Thlagale brought her into direct conflict with the third respondent.
There can be no doubt that the relationship
between them was not
cordial to say the least, and at times deteriorated into open
hostility. What Thlagale also did in several
instances was to assume
direct and functional responsibility for particular individual
matters, when that should never have been
her role and duty. The
upshot of all of this was that the third respondent took issue with
what he perceived to be interference
in his department, but instead
of actively engaging the DG in this respect, it appears from the
record that he became surly and
withdrawn where it came to the active
management and control of Legal Services, and viewed most that
Thlagale did as being part
of an orchestrated plan to get him to
resign.
[10] The evidence on
record in the arbitration and the documents on record show a
dysfunctional Legal Services department during
the course of 2004. In
my view, there was little management and control of the department.
There was little or no leadership from
the third respondent, and
there was undue interference from Thlagale. There was no business
plan in place, and no proper system
to manage what was clearly a
substantial volume of litigation. There were instances of Court
orders not being complied with, resulting
in contempt proceedings
against various functionaries. It was a sorry state of affairs which
in my view destroyed the credibility
of Legal Services. The evidence
in this matter actually shows how a Legal Services department should
not be managed.
[11] The end result of
the above situation is that the second applicant clearly placed the
blame for the state of Legal Services
directly on the third
respondent, and decided to “throw the book”, so to speak,
at the third respondent. The third
respondent after all was in charge
of Legal Services. On 13 January 2005, the third respondent was
presented with a six page charge
sheet containing five principal
charges each with several categories of sub charges (save for charge
5 which was one charge). Several
of these changes simply had no
merit, and I deal with all these charges hereunder. Some charges,
however, indeed had merit, which
I shall also deal with. The
disciplinary hearing was initially scheduled for 24 and 25 January
2005.
[12] The third respondent
consulted his attorneys, which attorneys on 17 January 2005 presented
the second applicant with a lengthy
request for further particulars.
The end result of all of this is that the disciplinary hearing could
not continue as scheduled
and on 26 January 2005, the second
applicant then answered the request for further particulars. On 28
January 2005, the third respondent
was also presented with all the
documents the second applicant intended to use in the disciplinary
proceedings.
[13] The disciplinary
hearing then convened on 1 March 2005 before an external chairperson,
Lavery Modise (“Modise”).
Modise is an experienced and
skilled employment law practitioner. From the outset of the
disciplinary proceedings, the third respondent,
as represented by his
attorney Viljoen, raised preliminary issues about the charges and
documents and the like, and requested a
postponement. Modise was not
inclined to allow unreasonable postponements. He then proceeded, with
the agreement of both parties,
to analyse the request for further
particulars and the response thereto so as to determine whether there
was cause in the preliminary
complaints of the third respondent.
Modise in fact canvassed each and every individual charge and its
content with both representatives,
with reference to the further
particulars and discovered documents, which process, as recorded in
Modise’s judgment, took
most of the day on 1 March 2005. I
believe it is important to highlight some of the conclusions Modise
came to in this respect.
Modise recorded that as part of the
documents in fact discovered by the applicant was an “investigative
report” about
the alleged misconduct of the third respondent
giving rise to the charges, which, if the third respondent and his
representative
had just taken the trouble of reading, would have
removed the need to ask for most of the further particulars. As a
result of the
exercise embarked on by Modise, clarity was achieved on
all of the charges and in fact, some of the wording on some charges
was
changed and four charges were withdrawn. The matter was then
postponed for hearing on the merits so both parties could go and
prepare.
[14] The hearing
reconvened on 3 March 2005. At the commencement of the hearing, the
third respondent objected to the manner in
which he had been treated
by the employee relations director, Mr Oppert, and in essence
contended that Oppert caused that he was
deprived of access to
documents and that he was removed from the premises. The third
respondent again sought a postponement. Modise
was however having
none of this. Modise instructed that Oppert be called to answer these
allegations, and Oppert then indeed came
to the disciplinary hearing.
Oppert denied the allegations. Modise then asked the third
respondent’s attorney Viljoen if
he was, in the light of what
Oppert had said, ready to proceed with the disciplinary hearing, and
Viljoen replied that he was.
What the third respondent and Viljoen
however then did when the hearing commenced was to simply leave the
hearing, alleging that
Modise was biased. The hearing then proceeded
in the absence of the third respondent.
[15] Modise then
delivered a comprehensive finding, dealing with each charge
individually, and in fact even acquitted the third
respondent on some
charges despite the fact that he was not even there. A useful summary
of the ultimate findings on each of the
charges and the consequent
sanction imposed by Modise can be found at page 279 of the record.
Modise recommended in his written
finding that the third respondent
be dismissed on some charges and receive a final written warning on
others.
[16] It must also be
pointed out that instead of participating in the disciplinary
hearing, the third respondent approach the High
Court in what was
simply an ill advised attempt, without any merit, to interdict the
disciplinary proceedings. This created further
conflict, and the end
result was that these High Court proceedings brought by the third
respondent were dismissed.
[17] As stated above,
Modise made his findings on the merits of this matter without the
participation of the third respondent. The
second respondent in the
arbitration proceedings conducted at the first respondent however did
have the benefit of the third respondent’s
version and
explanation. I intend to determine this matter only on the basis of
the charges against the third respondent which
in my view had merit.
Insofar as I make no reference to other specific charges in this
judgment, it can be accepted that I did
not consider these charges to
have merit and that I uphold the determinations of the second
respondent in this respect.
[18] Also of relevance in
the determination of this matter is also what transpired at the
arbitration proceedings in respect of
the actual conduct of such
proceedings. Both parties gave an opening address, and a pretrial
minute was filed. The case of the
third respondent was that he was
not guilty of any acts of misconduct, and he further contended that
in any event all the charges,
save for one charge relating to
speaking with a newspaper, were actually issues of incompetence/poor
performance and were not dealt
with as such as prescribed by the SMS
handbook relating to poor performance. The third respondent also
contended that his dismissal
was procedurally unfair on four grounds,
which, significantly, did not include an allegation of bias against
Modise.
3
The third respondent also
recorded that the reason why he left the disciplinary hearing was
that he was actively prevented from
accessing documents he needed for
his defense and that he was denied access to his laptop, and when he
raised this with the chairperson,
it was brushed aside.
[19] In respect of the
issue of substantive fairness, the second respondent, if proper
regard is had to her award as a whole, found
that the third
respondent was not guilty of most of the charges, but on other
charges she seemed to accept that the third respondent
was “guilty”,
for the want of a better phrase, but the issue was actually a
performance issue. The second respondent
in the end found no
substance to exist in any of the issues raised against the third
respondent, and concluded that the dismissal
of the third respondent
was consequently substantively unfair. On the issue of procedural
fairness, the second respondent rejected
all the procedural
challenges of the third respondent save for one, being that he was
actively prevented from accessing documents
in order to prepare his
defense, and the second respondent then found the third respondent’s
dismissal to be procedurally
unfair as a result.
[20] This matter will be
determined against the above background.
The relevant test for
review
[21] In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
4
Navsa AJ held that
in the light of the constitutional requirement (in s 33 (1) of the
Constitution) that everyone has the right
to administrative action
that is lawful, reasonable and procedurally fair, ‘the
reasonableness standard should now suffuse
s 145 of the LRA’.
The majority of the Constitutional Court set the threshold test for
the reasonableness of an award or
ruling as the following: ‘Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?’
In
CUSA
v Tao Ying Metal Industries and Others,
5
O'Regan J held: ‘It
is clear... that a commissioner is obliged to apply his or her mind
to the issues in a case. Commissioners
who do not do so are not
acting lawfully and/or reasonably and their decisions will constitute
a breach of the right to administrative
justice.’
[22] The
Labour
Appeal Court had the occasion to fully ventilate the issue again in
Herholdt
v Nedbank Ltd.
6
In this judgment, the
Court
concluded:
7
‘…
Where
a commissioner fails to have regard to material facts, this will
constitute a gross irregularity in the conduct of the arbitration
proceedings because the commissioner would have unreasonably failed
to perform his or her mandate and thereby have prevented the
aggrieved party from having its case fully and fairly determined.
Proper consideration of all the relevant and material facts and
issues is indispensable to a reasonable decision and if a decision
maker fails to take account of a relevant factor which he or
she is
bound to consider, the resulting decision will not be reasonable in a
dialectical sense. Likewise, where a commissioner
does not apply his
or her mind to the issues in a case the decision will not be
reasonable…
…
.
Whether or not an arbitration award or decision or finding of a
commissioner is reasonable must be determined objectively with
due
regard to all the evidence that was before him or her and what the
issues were. There is no requirement that the commissioner
must have
deprived the aggrieved party of a fair trial by misconceiving the
whole nature of enquiry. The threshold for interference
is lower than
that; it being sufficient that the commissioner has failed to apply
his mind to certain of the material facts or
issues before him, with
such having potential for prejudice and the possibility that the
result may have been different. This standard
recognises that
dialectical and substantive reasonableness are intrinsically
interlinked and that latent process irregularities
carry the inherent
risk of causing an unreasonable substantive outcome.’
[23] The judgment in
Herholdt
v Nedbank Ltd
is
in any event in line with what Labour Appeal Court had earlier said
in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
8
when specifically
interpreting the
Sidumo
test. The Court held
that: ‘[t]o this end a CCMA arbitration award is required to be
reasonable because, if it is not reasonable,
it fails to meet the
constitutional requirement that an administrative action must be
reasonable and, once it is not reasonable,
it can be reviewed and set
aside.’
[24] As the Labour Appeal
Court in
Herholdt
v Nedbank Ltd
referred
with approval to the judgment in
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others,
9
reference is made to the
following extract from such judgment, where it was held as follows:
‘
In
summary, s 145 requires that the outcome of CCMA arbitration
proceedings (as represented by the commissioner's decision) must
fall
within a band of reasonableness, but this does not preclude this
court from scrutinizing the process in terms of which the
decision
was made. If a commissioner fails to take material evidence into
account, or has regard to evidence that is irrelevant,
or the
commissioner commits some other misconduct or a gross irregularity
during the proceedings under review and a party is likely
to be
prejudiced as a consequence, the commissioner's decision is liable to
be set aside regardless of the result of the proceedings
or whether
on the basis of the record of the proceedings, that result is
nonetheless capable of justification.’
[25] In
Lithotech
Manufacturing Cape - A Division of Bidpaper Plus (Pty) Ltd v
Statutory Council, Printing, Newspaper and Packaging Industries
and
Others,
10
the Court held:
‘
Even
where the reasoning of the arbitrator may be criticized, this in
itself does not render the award reviewable particularly where
the
ultimate result arrived at by the arbitrator is sustainable in the
light of the record. I must, however, qualify this statement
by
pointing out that there may be cases where, although the ultimate
conclusion reached by the commissioner or arbitrator is reasonable,
the reasoning adopted by the arbitrator or commissioner is so flawed
(even if the ultimate result is reasonable), that it cannot
be
concluded that the arbitrator duly exercised his or her functions as
an arbitrator by taking due consideration of matters that
are vital
to the dispute. In such circumstances the reviewing court may well be
inclined to review and set aside the award.’
[26] Against the above
principles and test, the award of the second respondent in this
instance must be determined.
Merits of the review:
procedural fairness
[27] The second
respondent, as stated above, concluded that the dismissal of the
third respondent was procedurally unfair because
he had been
“actively” denied access to documents he needed for his
case. In my view, there are a number of material
difficulties with
this conclusion. Firstly, and immediately, nowhere on the record is
it even indicated what these documents were
and in what manner these
documents could in fact contribute to the third respondent’s
defense. This is in essence an issue
in the air, so to speak. It was
incumbent on the third respondent to at least identify the documents
concerned, allude to their
contents, and explain why such documents
were needed. This issue must also be evaluated against the judgment
of Modise, which was
indeed in evidence before the second respondent,
and which recorded that he went through each and every charge at the
commencement
of the disciplinary hearing with the both parties
present and participating, as against the request for further
particulars, the
response given thereto, and the documents that were
discovered, with the end result that all issues were fully clarified
so that
the hearing could proceed. The second respondent considered
none of the above, and thus clearly ignored material evidence where
it came to the determination of procedural fairness. Had the second
respondent properly, reasonably and rationally considered this
issue,
she could not have come to the conclusion that she did. In
Pam
Golding Properties (Pty) Ltd v Erasmus and Others,
11
the Court said:
‘
In
summary, s 145 requires that the outcome of CCMA arbitration
proceedings (as represented by the commissioner's decision) must
fall
within a band of reasonableness. The court is also empowered to
scrutinize the process in terms of which the decision was
made. If a
commissioner fails to take material evidence into account, or has
regard to evidence that is irrelevant, or the commissioner
commits
some other misconduct or a gross irregularity during the proceedings
under
review including, for example, a material mistake of law, and a party
is likely to be prejudiced as a consequence, the commissioner's
decision is liable to be set aside regardless of the result of the
proceedings or whether on the basis of the record of the proceedings,
that result is nonetheless capable of justification.’
[28] There is however a
further important issue in this regard. This is the issue of the
third respondent simply leaving the disciplinary
hearing. This being
the case, the simple point is that the third respondent cannot be
seen to complain about procedural fairness,
and his refusal to
participate in the disciplinary proceedings must entirely negate any
contention of procedural unfairness. I
am strengthened in my views in
this regard by the fact that the third respondent actually had no
justification at all for leaving
the disciplinary hearing. This
complete lack of justification is based on three important factors.
The first is that Viljoen stated
that he was ready to proceed with
the hearing, and when the hearing then started, Viljoen and the third
respondent walk out. This
smacks of mala fides. The second factor is
the entirely contradictory explanations by the third respondent
himself in the arbitration
as to why he left the hearing. At the
commencement of the arbitration, the third respondent records that he
left because he was
denied access to documents, and when he raised
this concern, it was brushed aside. In giving evidence, however, the
third respondent
then stated he left because Modise was biased and
had an “attitude” and was “harassing” him. It
may be
stated that the second respondent herself found no merit in
any contention of bias on the part of Modise, and I in any event
immediately
conclude that there can be no merit in this contention,
based on the evidence on record. The third factor is that even if
there
was merit in the third respondent’s contention that he
did not have access to some documents, this did not justify him
leaving
the hearing, and what he should have done in the hearing was
to remain and participate, and then in the hearing record and
illustrate
what these documents were, why he needed it, and how he
was being prejudiced by not having it in the hearing.
[29] The principle at
stake in this respect was enunciated thus in
Chemical
Energy Paper Printing Wood and Allied Workers Union and Others v
Metrofile (Pty) Ltd,
12
where the Court said:
‘
The
right to be afforded a fair hearing before one's dismissal is indeed
an integral part of our law. This right is explicitly recognized
by
the Act and has been restated in numerous decisions of this court.
However once an employer institutes disciplinary action and
gives the
affected employee notice thereof, it is open to the employee to
attend or refuse to attend the enquiry. Should the employee
refuse to
attend the enquiry such employee must be prepared to accept the
consequences thereof, one of which is that the enquiry
will proceed
in his absence and adverse findings may be made.’
[30] Also in
Fidelity
Cash Management Service,
13
it was held at follows:
‘
The
reason why, generally speaking, an employee is not obliged to attend
his disciplinary hearing is that a disciplinary hearing
is there to
comply with the audi alteram partem rule before the employer may take
a decision that may affect the employee or his
rights or interests
adversely. An employee can make use of that right if he so chooses
but he can also decide not to exercise it.
However, if he decides not
to exercise that right after he has been afforded an opportunity to
exercise it and a decision is subsequently
taken by the employer that
affects him in an adverse manner, he cannot be heard to complain that
he was not afforded an opportunity
to be heard.
The
fear that the employer may take an adverse decision against the
employee without the employee stating his side of the story
is the
reason why employees normally attend their disciplinary hearings. All
an employer can do, if an employee fails to attend
his disciplinary
enquiry, is to proceed with the disciplinary enquiry in the
employee's absence and make such decision as he considers
to be right
in the light of all the evidence before him.’
[31] The conduct of the
third respondent in the current matter is in my view comparative to
what happened in the case of
Dipaleseng
Municipality v SA Local Government Bargaining Council and Others.
14
The Court held as
follows, which in my view can equally be applied to the current
matter so as to illustrate the true reason why
the third respondent
left the disciplinary and the consequences of such conduct:
‘
The
third respondent overplayed her hand when she terminated her
attorney's mandate on realizing that her advocate was barred from
representing her at the hearing because of his intransigent
behaviour. This was a ploy, no doubt, to influence the chairperson
to
reverse his decision regarding Advocate Mathee's participation at the
disciplinary hearing. When this failed, she walked out
of the
disciplinary hearing in the hope that the matter would once again be
postponed. In doing so, she took a gamble and must
bear the
consequences of the fact that it boomeranged on her.’
In my view, the third
respondent wanted yet another postponement when the hearing
reconvened on 3 March 2005. When it was clear
that Modise was not
going to allow this, the third respondent actually gambled on leaving
the hearing, and assumed that if he did
so, the hearing would rather
be postponed. This tactic backfired on him when Modise decided to
proceed with the disciplinary hearing.
The third respondent now
simply has to live with the consequences of this tactic.
[32] The judgment in
Old
Mutual Life Assurance Co SA Ltd v Gumbi
15
can also be equally
applied to the current matter, and I refer to the following pertinent
extract from the judgment:
‘
All
these facts ineluctably lead to the conclusion that the employee
wanted to have the
hearing
aborted so as to prevent the fulfillment of the condition - a fair
disciplinary hearing - upon which dismissal by the employer
was
contractually dependent. In our law a contractual condition is deemed
to have been fulfilled where a party deliberately frustrates
its
fulfilment
.
By analogy this may also be the position in a statutory setting. In
Scott
and Another v Poupard and Another
1971 (2) SA 373
(A) Holmes JA said at 378G-H:
“
I
come now to the issue of fictional fulfilment of the condition upon
the occurrence of which the money was to be paid and the shares
to be
transferred to Poupard and Lobel, ie to say, the grant of mining
rights ….
In
essence it is an equitable doctrine, based on the rule that a party
cannot take advantage of his own default, to the loss or
injury of
another. The principle may be stated thus: Where a party to a
contract, in breach of his duty, prevents the fulfilment
of a
condition upon the happening of which he would become bound in
obligation and does so with the intention of frustrating it,
the
unfulfilled condition will be deemed to have been fulfilled against
him.”
See
also
SA Forestry Co Ltd v York Timbers Ltd
2005 (3) SA 323
(SCA) in paras 33-36.’ (emphasis added)
[33] Finally, in this
regard, I wish to refer to what the Court held in
Foschini
Group v Maidi and Others
16
which I respectfully
agree with and conclude can be applied directly to the current
matter:
‘
On
the evidence accepted by the arbitrator, the respondents' refusal to
attend the disciplinary hearing was unreasonable. Assuming
the
objection
to a material witness, being the enquiry initiator, to be a valid
one, the respondents should nonetheless have participated
in the
hearing and placed their objections on record. It is a trite
principle in our law that a party who chooses not to attend
a
hearing, does so at his or her own peril, and is precluded from later
complaining about the outcome of the hearing.’
[34] In the end, and
surely, the failure of an employee to attend the disciplinary hearing
and participate in the same has to have
consequences for the
employee. Otherwise, what is the point of the disciplinary process?
At the very least, this consequence has
to be that the employee
cannot contend that the dismissal of the employee was procedurally
unfair. The fact of the matter is that
in this case, the employee was
afforded more than sufficient time to prepare for the disciplinary
hearing, and was properly notified
of the same. In addition, and with
the assistance of the presiding officer in the disciplinary hearing,
clarity was obtained on
all of the charges and the hearing was
postponed for two days for the parties to then prepare to proceed on
the merits. The third
respondent was further at all relevant times
legally represented in the disciplinary hearing. Even if there was
merit in what the
third respondent said was wrong in the disciplinary
proceedings, this simply did not justify him leaving the disciplinary
hearing.
All of these critical issues were entirely ignored by the
second respondent in coming to her conclusion that the third
respondent’s
dismissal was procedurally unfair. As a result,
the second respondent’s award on the issue of procedural
unfairness is unsustainable,
and consequently reviewable.
[35] I wish to conclude
on this issue by saying something about the nature of the issues
raised by the third respondent as procedural
irregularities. In my
view, these kind of procedural objections can frequently be found in
disciplinary proceedings in the public
service, and this would more
often than not lead to material delays in the conclusion of such
disciplinary proceedings. Normally,
these delays are also on full
remuneration of the employee being subjected to discipline, at great
expense to the taxpayer. This
is not in line with the objectives of
the LRA, and should be discouraged. I fully align myself with what
the Court said in
Avril
Elizabeth Home for the Mentally Handicapped v Commission for
Conciliation, Mediation and Arbitration and Others,
17
where it was held as
follows, and which in my view should equally be applied to
disciplinary proceedings in the public service:
‘
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.
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.
…
.
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’
[36] I, therefore,
conclude that the second respondent’s finding of procedural
unfairness in respect of the dismissal of the
third respondent falls
to be reviewed and set aside.
Merits of the review:
substantive fairness
[37] As stated above, I
intend to limit the issues of substantive fairness I will deal with
in this judgment to only those charges
which I believe have merit. I
reiterate that where I do not specifically deal with and determine
the merits of a particular individual
charge, it must be accepted
that the charge had no merit and that the second respondent’s
conclusion of the third respondent
being not guilty of that charge
must be considered to be properly and rationally arrived at, and must
thus be considered to have
been sustained.
[38] The first issue I
wish to deal with is the charge against the third respondent with
regard to his failure to provide strategic
leadership in Legal
Services. The second respondent found that the third respondent was
not guilty of this charge. I, however,
do have a number of
difficulties in respect of this conclusion of the second respondent.
The reason for my difficulties is found
in the simple issue of how
the second respondent came to her determination. The second
respondent in essence concluded that she
found the third respondent
not guilty of this charge simply and only because the best persons to
testify about this charge was
the DG or the third respondent’s
subordinates, and not Thlagale who testified on this aspect. This in
my view is simply not
a proper determination of the charge, or the
evidence. The second respondent in essence completely shirks the
evidence of Thlagale,
and does not determine or deal with her
evidence at all. This is a material failure. The fact is that
Thlagale was the eyes and
ears of the DG, as stated. She functioned
in Legal Services on a daily basis, and was in a proper and informed
position to give
evidence on the charge. The third respondent, in
presenting his case in evidence, often directly disputed and
contradicted what
Thlagale was saying. As a result of the aforesaid,
the second respondent was compelled to determine if the evidence on
the issues
Thlagale testified about was credible or not, whether the
third respondent’s evidence on these versions was credible or
not,
and whether Thlagale’s versions or that of the third
respondent was to be preferred. The second respondent completely
failed
to do so. As was said in
Sasol
Mining (Pty) Ltd v Ngqeleni No and Others:
18
‘
One of the
commissioner's prime functions was to ascertain the truth as to the
conflicting versions before him.’
If
the second respondent at least made some or other credibility finding
or preferred the evidence of one witness over another,
there would be
little basis to interfere,
19
but unfortunately she
made no such finding. I refer to the following extract from
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others,
20
where the Court, in
dealing with issues of determining evidence by arbitrators held as
follows, which in my view can equally be
applied to the current
matter:
‘
To
resolve the factual controversy between Carstens and Nkunzi, the
commissioner had to embark upon a balanced assessment of the
credibility, reliability and probabilities associated with their
respective versions. But the commissioner did nothing of the sort
-
and instead simply plumbed for Nkunzi's version. In the result, the
award is bereft of any reason whatsoever for why Nkunzi "was
able to establish" her version on this score.’
[39] I conclude in this
respect with the following reference from
Sasol
Mining (Pty) Ltd v Ngqeleni No and Others,
21
which in my view is
principally the problem with the award of the second respondent in
this instance:
‘
...
Some commissioners appear wholly incapable of dealing with disputes
of fact - their awards comprise an often detailed summary
of the
evidence, followed by an 'analysis' that is little more than a
truncated regurgitation of that summary accompanied by a
few
gratuitous remarks on the evidence, followed by a conclusion that
bears no logical or legal relationship to what precedes it.
What is
missing from these awards (the award under review in these
proceedings is one of them) are the essential ingredients of
an
assessment of the credibility of the witnesses, a consideration of
the inherent probability or improbability of the version
that is
proffered by the witnesses, and an assessment of the probabilities of
the irreconcilable versions before the commissioner.’
[40] As the second
respondent made no such credibility finding, this now compels me to
do so, in order to determine whether the
second respondent’s
finding on this charge is fully and properly supported by the
evidence on record. A proper consideration
of the evidence on the
record compels me to conclude that the second respondent’s
finding on this charge cannot be sustained,
for the reasons set out
hereunder.
[41] The evidence of
Thlagale was consistent on this issue of the third respondent’s
failure to provide strategic leadership.
Her evidence, even under
rigorous cross examination, remained unwaivering. It is also crucial
to point out that under cross examination,
the case put to Thlagale
to answer was in essence that the second respondent had no obligation
to provide strategic leadership,
with very little emphasis on the
fact that the allegation that he did not provide it was untrue. When
the turn of the third respondent
came to testify, he placed no
reliance at all on the issue that he had no obligation to provide
strategic leadership, and considering
his own view of the nature of
his position, rightly so. The third respondent was adamant that at
all times he indeed provided proper
strategic leadership, which
Thlagale was never really confronted with under cross examination.
There is thus a clear contradiction
between the defense presented
under cross examination of Thlagale, and the actual case then
presented by the third respondent in
evidence. This must have a
material negative impact on the assessment of the evidence of the
third respondent. Reference is made
to
ABSA
Brokers (Pty) Ltd v G N Moshoana N.O. and Others,
22
where it was held
as follows:
‘
It
is an essential part of the administration of justice that a
cross-examiner must put as much of his case to a witness as concerns
that witness (see
van
Tonder v Killian NO en Ander
1992 (1) SA 67
(T) at 72I). He has not a right to cross-examination
but, indeed, also a responsibility to cross examine a witness if it
is intended
to argue later that he evidence of the witness should be
rejected. The witness’ attention must first be drawn to a
particular
point on the basis of which it is alleged that he is not
speaking the truth and thereafter be afforded an opportunity of
providing
an explanation (see
Zwart
and Mansell v Snobberie (Cape) (Pty) Ltd
1984 (1) PH F19(A)). A failure to cross-examine may, in general,
imply an acceptance of the witness’ testimony...’
[42] In considering the
evidence of the third respondent as a whole, and as it appears from
the arbitration record, I am compelled
to conclude that it left much
to be desired. He was argumentative and on occasion quite insulting
and contemptuous towards his
cross examiner. He would often not
answer questions directly and there were numerous instances of
versions he testified to not
having been put to Thlagale under cross
examination, and when this was pointed out to him, his answer was
that this did not have
to be put to Thlagale under cross examination
because he (the third respondent) was testifying about it now. In my
view, and where
it came to whether the evidence of Thlagale should be
preferred or that of the third respondent, the only proper and
reasonable
conclusion could have been that the evidence of Thlagale
had to be preferred, and this must mean that indeed the third
respondent
provided no strategic leadership as Thlagale indeed
testified to be the case.
[43] However, any case is
not just determined on the basis of credibility. As was said in
SFW
Group Ltd and Another v Martell et Cie and Others:
23
‘
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities.’
[44] Dealing then with
the issue as to whether the third respondent actually provided
strategic leadership as an issue of probability,
I have little
hesitation in answering this question in the negative. Having regard
to the evidence as a whole, and even the third
respondent’s own
evidence, the most natural and plausible inference to be drawn from
the evidence is that the third respondent
did not provide strategic
leadership. I say this firstly because the state of Legal Services in
itself must prove this. The third
respondent was where the buck
stopped in Legal Services, and there is simply no way in which this
department could deteriorate
to where it was if the third respondent
had provided strategic leadership. The fact is that some of the
individual charges against
the third respondent were symptoms of this
very failure. These are issues such as the lack of proper support to
subordinates, the
lack of a proper case management system, the
contempt of Court issues referred to, the fact that there was no
business plan, and
the fact that subordinates appeared to function
without any proper control. The third respondent was also clearly
aggravated by
Thlagale in his domain who he viewed as being earmarked
to take over his position, and this negatively affected his behaviour
in
not providing such leadership as well. In the end, Legal Services
simply could not have been as dysfunctional as it was if the third
respondent was fully engaged in the department providing strategic
leadership.
[45]
In
Minister
of Safety and Security v Jordaan t/a Andre Jordaan Transport,
24
it was
held that the inference drawn from the evidence just has to be “the
most natural or acceptable inference
”
,
and not the only inference. In
Bates
and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co
25
it
was held as follows:
‘
The
process of reasoning by inference frequently includes consideration
of various hypotheses which are open on the evidence and
in civil
cases the selection from them, by balancing probabilities, of that
hypothesis
which
seems to be the most natural and plausible (in the sense of
acceptable, credible or suitable)
.’
(emphasis added)
[46]
In
Govan
v Skidmore,
26
where
the Court held that it was trite law that:
‘
....
in general, in finding facts and making inferences in a civil case,
the court may go upon a mere preponderance of probability,
even
though in so doing does not exclude every reasonable doubt, so that
one may, by balancing probabilities select a conclusion
which seems
to be the more natural, or plausible, conclusion from amongst several
conceivable ones, even though that conclusion
be not the only
reasonable one’. The judgment in
Food
and Allied Workers Union and Others v Amalgamated Beverage Industries
Ltd
27
adds a
further dimension to the enquiry, where it was held as follows:
‘
The
fact that the evidence is consistent with the inference sought to be
drawn does not of course mean that it is necessarily the
correct
inference. A court must select that inference which is the more
plausible or natural one from those that present themselves
(
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982 (2) SA 603
(A)). In the present case however no alternative
inferences have been advanced which have a foundation in the
evidence.’
[47] What alternative
inference does the third respondent then actually advance? The third
respondent’s alternative inference
is somewhat perplexing. He
contends he did provide proper strategic leadership at all times, in
the face of the state of Legal
Services. He then goes further and
contends that what is happening to him was firstly because the DG
wanted him to resign so Thlagale
could take over his position,
secondly because he was a Christian and “they” did not
like Christians, and lastly because
he was not willing to live with
corruption. Most of the details raised by the third respondent when
giving evidence in respect
of these allegations were never put to
Thlagale under cross examination, and these allegations were in any
event entirely unfounded.
In effect, and to put it simply, what the
third respondent is actually suggesting is that the DG of Home
Affairs is deliberately
allowing the Legal Services department to
deteriorate into a state of disarray with contempt applications being
brought inter alia
against the Minister just because the DG dislikes
Christians and wants his crony (Thlagale) to get the third
respondent’s
job. I consider this proposition to be ludicrous.
The ultimate contradiction of these contentions of the third
respondent however
lies in the fact that on the undisputed evidence,
Thlagale did not even apply for the third respondent’s position
after he
was dismissed, despite the fact that she did act in the
position after he left. In effect, therefore, the third respondent
had
no proper explanation for the state of his own department for
which he was ultimately responsible.
[48] In the
circumstances, I conclude that the conclusion of the second
respondent in respect of charge 1.1, being the charge relating
to the
third respondent’s failure to provide strategic leadership, is
simply not a conclusion a reasonable decision maker
could come to,
having regard to the evidence if properly and rationally considered
as a whole. The conclusion of the second respondent
that the third
respondent is not guilty of this charge cannot be upheld, and falls
to be reviewed and set aside. In my view, the
proper conclusion is
that the third respondent is indeed guilty of this charge.
[49] The next charge I
wish to deal with relates to the charge that the third respondent
failed to adopt and implement a business
plan. There was much debate
about this issue in the arbitration. There were conflicting versions
as to what happened in the business
plan meeting, and about the fact
that Thlagale was present in such proceedings when she according to
the third respondent should
not have been there. The third respondent
in his evidence also made it clear that he was unwilling to work with
the facilitators
appointed to facilitate the business plan, and he
took strong exception with the manner in which the business plan was
being arrived
at. The upshot of all of the above is that there was no
business plan. The third respondent’s own version about his
position,
as set out above, is that he had to manage his department
in terms of a business plan. It simply does not matter who else the
third
respondent sought to blame for this failure, which was what he
was consistently doing, as the simple fact is that the direct duty
rested on the third respondent to formulate and implement a business
plan and so give guidance to all his subordinates in terms
thereof.
The third respondent also contended he was told by the DDG to hold
the business plan in abeyance until HR had concluded
their business
plan. This explanation is entirely unacceptable, as I have difficulty
in understanding how HR can formulate any
business plan relating to
employment resources if the third respondent did not first determine
what he wanted for his department
in his own business plan.
Furthermore, even if there is truth in this contention of the third
respondent, he simply could not leave
it there, and had to put
pressure on HR to finalise their plan so he could do his, and pursue
the matter further if HR did not
act timeously. Legal Services was
the third respondent’s department and he had to take all
reasonable steps to ensure it
was managed properly. In the end, and
to simply plod along for a year without a business plan because of
the above reasons is entirely
unacceptable. I would have expected
someone with the acumen and experience of the third respondent, who
was fully in charge of
legal services, to have done a lot more to
pursue the issue with the DG or even the Minister where he believed
he was hindered
in, or obstacles were placed in his way, in respect
of the formulating and implementing of a proper business plan.
[50] The second
respondent completely failed to properly determine this charge. The
second respondent in essence ignored virtually
all the evidence on
record in this regard and failed to consider any probabilities. In
fact, the only reasoning by the second respondent
in finding the
third respondent not guilty of this charge is contained in one
paragraph
28
which, with respect to
the second respondent, makes little sense. Of concern to me is that
the second respondent finds that the
second applicant was seeking to
rely on hearsay evidence and should have called the DDG to testify,
but then in the same breath
concludes that where the third respondent
was similarly relying on hearsay evidence to substantiate his
version, and the second
applicant similarly refuted this evidence,
the duty was on the second applicant to call a witness to rebut this.
This is clearly
not an even handed and fair determination of the
evidence, and this approach as far as I am concerned is simply
unacceptable. Once
again also, the second respondent makes no
credibility findings. Therefore, and applying the same principles of
probability and
credibility as referred to above, it is my conclusion
that the only rational and reasonable conclusion that can be drawn
from the
evidence as a whole is that the third respondent indeed
failed to formulate and implement a business plan, when he was
obliged
to do so.
[51] In the
circumstances, and in respect of charge 1.2, being the issue of the
business plan, it is my view that the second respondent’s
finding that the third respondent was not guilty of this charge is
also not a conclusion a reasonable decision maker could come
to,
having regard to the evidence if properly and rationally considered
as a whole, and this conclusion equally falls to be reviewed
and set
aside. I find that the proper conclusion is that the third respondent
was indeed guilty of this charge as well.
[52] The next issue to be
addressed related to the third respondent’s failure to
implement a case management system (charge
2.1). In this regard, it
was common cause that there was no case management system. There was
a Q & A process being used, but
even the third respondent
conceded it was not a case management system. Thlagale stated that
the Q & A system was not effective
and could be manipulated. The
third respondent disputed this, but conceded the Q & A system was
far from ideal, and a case
management system was needed. The third
respondent’s further evidence on the case management is however
disturbing. The third
respondent stated that he does not know what
case management system to implement as he was not given one to
implement. The third
respondent thus contended that he could not be
blamed for the absence of a case management system as he was not
given one. The
third respondent also, in what would be somewhat
contradictory to that which the first contended as set out above,
stated that
he asked for a budget for a case management system but
this was not entertained. Once again, I am compelled to point out
that the
third respondent simply did not discharge his core functions
in this respect. As has been set out above, the third respondent
himself
described one of his core duties to be the implementation and
maintenance of a case management system. Considering that he was the
head of the department, he had the duty to either find or project
manage the design of such a system, and if a budget was needed,
to
drive the process of getting the necessary funds. A proper case
management system was critical to the effective and proper
functioning and control of Legal Services. I am left with the
distinct impression from the evidence on record that the third
respondent
treated this issue with what can only be described as
indifference.
[53] In dealing with this
charge, the second respondent accepted the contention that the third
respondent was given no case management
system to implement. In my
view, this clearly indicates that the second respondent did not
understand or appreciate the actual
issue. The actual issue was it
was the very duty of the third respondent to find or design a case
management system, and not that
he be given one to implement. The
second respondent clearly also failed to comprehend the importance of
a proper case management
system, and the fact that this was actually
one of the third respondent’s core strategic functions. The
second respondent
also had no regard to what was really the third
respondent’s indifference to this issue. Once again therefore,
the second
respondent entirely negates what is crucial evidence and
simply does not consider or determine such evidence. The second
respondent
also fails to comprehend and determine the actual issue
before her. In this respect, I refer to what was said in
F
N Marketing Distribution Services v Commissioner Matee and Others
29
where it was held as
follows, in finding that an arbitration award was indeed reviewable:
‘
In
my view the statement by the arbitrator that there is 'no evidence to
suggest' the employee's guilt, taken together with his
failure to
refer to and to analyse key portions of the evidence referred to
above, demonstrates a failure on the part of the arbitrator
to direct
his mind to material, and largely common cause, evidence...’
[54] The second
respondent goes further and concludes that this issue of the case
management system and all the charges relating
to the control of and
management of cases was in any event really a performance based issue
and not an issue of misconduct. The
second respondent held that the
poor performance process in the SMS handbook was not followed. For
this reason, the second respondent
concluded the third respondent was
not guilty of these charges. In assessing this conclusion, the
question must firstly be
what
is then the difference then between misconduct and poor work
performance?
The
distinction can be found in the concept of wilfulness or
deliberateness. In the case of misconduct, it must be present, whilst
in the case of poor performance, it must be absent. In
Robinson
v Sun Couriers (Pty) Ltd,
30
it was
held in a CCMA arbitration award that the distinction lies in the
fact that poor performance does not require an investigation
into
culpability, but in the case of misconduct, it does. I agree with
this reasoning. The CCMA in
Robinson
v Sun Couriers
also
referred to the preceding judgment of the Labour Court between the
same parties, being that of
Sun
Couriers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others,
31
where
it was held that
‘
Referring
to commentaries on the concept in two articles, Grogan
'Cracking
the Code - The Code of Good Practice: Dismissal
'
(1997) 13(6) Employment Law 118 and Le Roux and Van Niekerk
The
SA Law of Unfair Dismissal
,
the applicant emphasizes the distinction between misconduct,
described by Grogan as 'improper behaviour over which the employee
has control' and incapacity, which Le Roux and Van Niekerk define as
'behavioural conduct which is not intentional or which is
not
negligent.
’
As a
general proposition therefore, poor
performance
would not include a failure to comply with company rules and
policies, where the employee is able to comply with such
rules but
does not. Pursuant to the above reasoning, and where the employee has
failed, which would be the case in both misconduct
and poor
performance proceedings, the crisp question thus is what would be the
reason for the failure, and it is this issue that
needs to be
determined to make the distinction. The following was said in
Robinson
v Sun Couriers (Pty) Ltd
(
supra
)
32
,
which I agree with:
‘
The
fact that there is such a positive obligation on the employer to
establish the reasons for the failure to perform is also important
for purposes of distinguishing between misconduct type of failures
and incapacity type of failures. This distinction is no doubt
a
difficulty employees are often faced with and having regard to the
rather rigid approach laid down by the Labour Court, an incorrect
categorization of the action against an employee will almost
inevitably be fatal from an employer's perspective.’
[55] I accept that it may
not be easy to make this distinction. The commissioner in the CCMA
arbitration award in
Thompson
v Samaki Beach Lodge
33
was alive to this, and I
fully agree with the following extract from such arbitration award:
‘
...
There is an extremely fine line between misconduct and incapacity (or
operational requirements) in some instances and that line
is not
easily drawn in many instances. As proper categorization of a dispute
will determine what course of action will be taken
against an
employee, there is no doubt that proper categorization is extremely
important. A proper distinction should be made between
a misconduct
enquiry and a poor work performance: incapacity enquiry as the latter
does not require any investigation into the
issue of culpability. See
in this
regard
Sun
Couriers
(Pty)
Ltd v CCMA and Others
(2002)
23 ILJ 189 (LC).
But,
often, the same conduct may give rise to more than one categorization
and employers may (not unreasonably) make mistakes in
their attempt
to categorize the matter as being of misconduct or poor performance.
However, the employer's failure to correctly
categorize the matter
does not change the fundamental questions: was there a substantively
fair reason for the dismissal and whether
an appropriate and fair
procedure had been followed before the dismissal. In this regard see
SABC
v CCMA and Others
[2006]
6 BLLR 587
(LC).
On
thorough consideration of the evidence it is clear to me that the
issue in dispute is that of misconduct. It has never been the
case of
the respondent that the applicant is believed to be incapable of
performing her duties, nor was it raised by the applicant
at the
disciplinary enquiry that she believes the matter to be one of her
not being able to do her job.’
[56]
Recently, the Court in the judgment of
Transnet
Freight Rail v Transnet Bargaining Council and Others
34
also had occasion to deal
with this issue as well, and held as follows:
‘
Negligence
can be defined as 'a failure to comply with the standard of care that
would be exercised in the circumstances by a reasonable
person.
As
is obvious from that definition, there is sometimes an overlap
between poor work performance and negligence. Negligence can be
treated as either incapacity or as misconduct, depending on the
circumstances. The basis for culpability in negligence cases is
the
lack of care and/or diligence accompanying the act or omission. The
test for negligence is an objective one, namely whether
the harm (or
potential harm) was foreseeable and whether a reasonable person would
have guarded against its occurring. Grogan
Workplace
Law
at
122-3;
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck
(2007)
28 ILJ 307 (SCA);
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E-H.’
The
Court concluded as follows, which dictum in my view can be applied
directly to the current matter:
35
‘
Had
the arbitrator applied the relevant legal principles distinguishing
between misconduct and incapacity, he would have concluded
that
fourth respondent was guilty of misconduct and that the EAP was not,
on the facts, an appropriate avenue for dealing with
the matter.
Accordingly, there was no obligation or basis for the employer to
have referred fourth respondent to the EAP or to
address the matter
by means of counselling.
In
addressing the factual dispute before him on the incorrect
application of the relevant legal principles, second respondent
committed
a gross irregularity of a material nature in the conduct of
the arbitration proceedings, thereby resulting in applicant not being
afforded a fair hearing at arbitration. For the same reasons, second
respondent's arbitration award amounts to a decision that
a
reasonable decision maker could not make.’
[57] In my view, the
distinction between poor performance and misconduct can be
established by the asking of two simple questions
when it has been
established that an employee indeed failed. The first question is
“[d]id the employee try but could not?”
and the second
question is “[c]ould the employee do it, but did not?” If
the first question is answered in the affirmative,
then it has to be
poor performance, because an employee that honestly (for the want of
a better word) seeks to achieve what is
expected of him or her but is
unable to do so is incapacitated and would not behave wilful or
indifferent or fail to apply the
necessary care. If the second
question is answered in the affirmative, then it has to be
misconduct, as this would be a situation
where the employee is fully
able to do what is required not to fail, and such failure could
therefore only be because of indifference
or wilfulness or a failure
to take care. The problem in this matter is that the second
respondent did not apply any of the above
legal principles. The
second respondent provided no reasoning or motivation at all for
coming to her conclusion that the issues
were actually that of poor
performance. She simply “agrees” with the third
respondent’s contentions in this regard
but does not say why.
[58] Whilst giving
evidence in the arbitration, Thlagale was indeed confronted with the
issue of the charges against the third respondent
being principally
based on issues of poor performance and not misconduct. Thlagale
appeared to be alive to the distinction between
these two issues and
actually testified to the effect that this was not a case what the
third respondent could not fulfil the duties,
but this was a case
where he did not want to do the duties. Thlagale stated that the
third respondent did not want to play with
the team, so to speak. Her
evidence in this regard remained consistent, and there was no reason
not to have accepted it. In giving
his evidence, the third respondent
did not suggest there were any failures on his part resulting from
his inability to fulfil his
duties. To put it simply, the case of the
third respondent when giving his evidence was not that he tried and
could not. Quite
the opposite, his case in giving evidence was that
he properly did all he could and no failure was his fault – it
was all
the fault of other persons such as the DG and Thlagale, the
fault of the employer’s attitude towards him, and the result of
him being victimised. In my view, the core issues in this case are
not issues of poor performance, but actually issues of misconduct,
even on the third respondent’s own version. In finding that
such issues were poor performance issues, the second respondent
committed a reviewable irregularity.
[59]
The above being said, and even if the second respondent view that the
case against the third respondent was in essence one
of poor
performance and not misconduct was proper and justified, then she
still had to determine whether, on the facts and evidence
in this
matter, there was actual substance in the issue of poor performance,
even if the second applicant may have incorrectly
labelled it to be
misconduct. What the second respondent however in essence does, in a
nutshell, is to find that the second applicant
called the issues
against the third respondent misconduct, but such issues were
actually poor performance, and therefore as a result
of this per se,
it is unfair. That simply cannot be the proper approach. As I have
set out above, the issue of the possible existence
of poor
performance as a basis for the issues raised against the third
respondent was specifically placed before the second respondent
as an
issue at the commencement of the arbitration. The issue was indeed
canvassed in the arbitration itself. Once “all the
evidence was
then in”, so to speak, the second respondent
had
the duty to determine the true nature of the case before her, and
then determine the merits of such case. In
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another,
36
it was held as follows:
‘
It
is the duty of a court to ascertain the true nature of the dispute
between the parties. In ascertaining the real dispute a court
must
look at the substance of the dispute and not at the form in which it
is presented. The label given to a dispute by a party
is not
necessarily conclusive. The true nature of the dispute must be
distilled from the history of the dispute, as reflected in
the
communications between the parties and between the parties and the
Commission for Conciliation, Mediation and Arbitration (CCMA),
before
and after referral of such dispute. These would include referral
documents, the certificate of outcome and all relevant
communications. It is also important to bear in mind that parties may
modify their demands in the course of discussing the dispute
or
during the conciliation process. All of this must be taken into
consideration in ascertaining the true nature of the dispute.’
[60] Also in
CUSA
v Tao Ying Metal Industries and Others,
37
the Court said that:
‘
In
deciding what the real dispute between the parties is, a commissioner
is not necessarily bound by what the legal representatives
say the
dispute is. The labels that the parties attach to a dispute cannot
change its underlying nature. A commissioner is required
to take all
the facts into consideration including the description of the nature
of the dispute, the outcome requested by the union
and the evidence
presented during the arbitration... The dispute between the parties
only emerges once all the evidence is in.'
In this respect reference
is also made to
Coin
Security Group (Pty) Ltd v Adams and Others
(2000)
21 ILJ 925 (LAC) at para 16;
Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers Union and
Others (1)
(1998)
19 ILJ 260 (LAC) at 269G H;
Viney
v Barnard Jacobs Mellet Securities (Pty) Ltd
(2008)
29 ILJ 1564 (LC)
at
para 37;
Kroukam
v SA Airlink (Pty) Ltd
(2005)
26 ILJ 2153 (LAC)
at
2162F;
SA
Chemical Workers Union and Others v Afrox Ltd
(1999)
20 ILJ 1718 (LAC)
at
1726;
Van
der Velde v Business and Design Software (Pty) Ltd and Another
(2006)
27 ILJ 1738 (LC)
at
1745I, where the same sentiment is echoed.
[61]
As stated, the second respondent however did not determine the merits
of the poor performance issue. If this issue is considered
on the
merits thereof, it would be my conclusion that the second applicant’s
case in fact had substance. The reason for this
is based on the
nature of the position of the third respondent, and what his core
duties and functions were, even on his own version.
The
third respondent was at the helm of Legal Services. At the time when
these issues arose, he had been at the helm of Legal Services
for
some five years. He was fully responsible for all aspects of the
management of such department. In fact, and as I have set
out above,
his own assessment of his own core functions clearly showed what was
expected of him, and that he precisely knew what
was expected of him.
Added to all of the above is actual specialised nature of the
position, relating to the field of legal services.
It is the very
reason for the engagement of the third respondent as Chief Director
that he will be required to bring the requisite
skills, knowledge and
expertise to the party. In the end, and on the evidence, the third
respondent clearly failed in his core
duties considering that which
was expected of him.
[62] This matter draws
many similarities to the arbitration award in
A-B
v SA Breweries Ltd
.
38
If
regard is has to the factual matrix and evidence as recorded in such
award, most of the issues raised in that matter and the
contentions
raised by both parties therein are directly comparable to the current
matter
39
.
I intend to refer to a number of extracts from this award, which in
my view can be directly applied to the current matter, and
with which
I entirely agree with. In the first instance, the arbitrator
determined as follows:
40
‘
In
addition, when one looks at the goals set for the employee by herself
(A260) it is clear that the employee was aware of what
was expected
of her. Phrases like 'maximize production' and 'maximize opportunity'
abound, and rightly so, as the evidence of the
employer's witnesses
was that this was what the employer expected of the employee. She was
supposed to be a planner, in effect
a visionary, able to provide the
way forward. Similarly, if one looks at the matter objectively, the
employee was employed on a
senior managerial level at a handsome
salary. Clearly such a position and the payment of such a salary
presuppose a function beyond
that of the ordinary foot soldier and
more in keeping with that of a field commander.’
There can be very little
doubt that the above reasoning can be directly applied to the current
matter, especially considering the
third respondent’s own
description of his position, referred to above. The third respondent
was supposed to be the planner,
the visionary and the strategic
leader in the department. He was the most senior manager in Legal
Services, earning a handsome
salary. He was certainly the “field
commander”.
[63]
The arbitrator in
A-B
v SA Breweries Ltd
also
held as follows:
41
‘
Whether
the employee's efforts would have been sufficient to swing matters
around and bring back production to accepted levels is
a matter of
conjecture. If the employee had attempted to do so, as was expected
of her, and failed, the question before me would
be different and may
have yielded a different answer. However, the employee did not
attempt to be proactive, creative, problem
solving or solution
seeking. She could only manage to record what was wrong, without
attempting to cure that wrong. The defence
of the employee to the
charge of failing to implement full production earlier is indicative
of her attitude in this regard. She
essentially argued that nobody
told her to do it. The employer's response was that 'it was
your
job to tell us to do it'. The employee was content to be reactive,
the employer employed her, and paid her, to be proactive.’
Once again, I fully agree
with the above reasoning, and in applying the same to the current
matter, it is clear that the same criticism
can be directly leveled
at the third respondent. He made no attempt to be pro-active, to
conduct problem solving or being creative.
He simply played the blame
game. In fact, and in respect of the case management system, his
contention precisely was that he had
to be told how to do his job in
this regard, when it was his very duty to be innovative and
proactive.
[64]
Part of the defense raised by the third respondent in the arbitration
was he never received a formal job profile or job description
or the
like, specifying exactly what his duties were. Once again, the award
in
A-B
v SA Breweries Ltd
is
most apposite and I refer to the following extract from the award,
which I fully agree with:
42
‘
For
a senior managerial employee to ask for a job description is a clear
indication that the employee was not senior managerial
material. The
concepts of managerial prerogative, managerial discretion and
managerial responsibility do not sit well within the
restrictive
confines of a job description, which belong to more mechanistic and
delineated occupations.’
[65] A
s
enunciated in
New
Forest Farming CC v Cachalia and Others
43
:-
‘
…
the
second respondent (referring to the employee in that instance),
holding the managerial position that he did, ought to have been
able
to judge for himself whether or not he was meeting the standard set
by his employer.’ This surely must have been the
case with the
third respondent.
[66]
In respect of the failure to apply a proper poor performance process
to the third respondent, which the second respondent also
took issue
with in her award, one can do little better than to refer to what the
Court said i
n
JDG
Trading (Pty) Ltd t/a Price 'n Pride v Brunsdon.
44
In writing the minority
judgment,
45
in this matter, Conradie
JA held as follows, which I respectfully agree with:
46
‘
As
for procedural unfairness, it is unfair to expect an employer to
apply to a senior executive those guidelines regarding counselling
which have been worked out by the courts in relation to workers who
wear blue collars and those who wear no collars at all (
Stevenson
v Sterns Jewellers (Pty) Ltd
(1986) 7 ILJ 318 (IC) at 324D E). An experienced executive who
needs to be counselled on fundamental job skills is probably
not fit
to be an executive. He is there to oversee others. He cannot do that
if he cannot even oversee himself.
Prof
M P Olivier some years ago wrote an interesting article in the
Industrial Law Journal
entitled
'The Dismissal of Executive Employees'. It is to be found at (1988) 9
ILJ 519. I agree with him that the courts have in
the case of senior
employees (I would say correctly) taken a more flexible attitude in
the application of the unfair dismissal
guidelines.
’
[67]
Also,
in
Somyo
v Ross Poultry Breeders (Pty) Ltd
47
the Court held
that:
‘
An
employer who is concerned about the poor performance of an employee
is normally required to appraise the employee's work performance;
to
warn the employee that if his work performance does not improve, he
might be dismissed; and to allow the employee a reasonable
opportunity to improve his performance;
Craig
v Rubtec (Pty) Ltd t/a Guys and Girls
(1992) 1 LCD 29 (IC);
James
v Waltham Holy Cross UDC
[1973] IRLR 202.
Those requirements may not apply in two cases which
are relevant to this matter. The first is the manager or senior
employee whose
knowledge and experience qualify him to judge for
himself whether he is meeting the standards set by the employer;
Stevenson
v Sterns Jewellers (Pty) Limited
(1986) 7 ILJ 318 (IC) at 324F-G;
Blue
Circle Materials Limited v Haskins
(1992) 1 ICD 6 (LAC). The second is where ''... the degree of
professional skill which must be required is so high, and the
potential
consequences of the smallest departure from that high
standard are so serious, that one failure to perform in accordance
with those
standards is enough to justify dismissal '.
Taylor
v Alidair Limited
[1978] IRLR 82.
’
[68] In my view, the
actual seniority of the applicant, the very reason for his
employment, his actual duties and objectives as
defined by the third
respondent himself, and his particular specialised position of skill
and expertise that he brings to the party,
falls squarely within the
ambit of what is set out and envisaged above. The third respondent
did not achieve his particular objectives.
The third respondent did
not properly manage and control Legal Services. The third respondent
did not provide leadership and did
play as a member of the team. The
dysfunctional state of Legal Services surely proves how the third
respondent failed. I conclude
with the following final reference from
the judgment in
JDG
Trading (Pty) Ltd t/a Price 'n Pride v Brunsdon:
48
‘
I
would think that where an employer on reasonable grounds comes to the
conclusion that a senior management employee is unsuited
to the
position which he holds, the scope for having such a conclusion
overturned in a court of law is small. It is in the highest
degree
desirable that an employer should, in the interests of efficiency, be
entitled to chose with as much freedom as is compatible
with the
honest exercise of a discretion, who it wants at or near the helm of
its enterprise. Qualities like leadership, resolve,
business acumen,
judgment and effective administration are not readily provable in a
court. A deficiency in such qualities is not
readily provable
either.’
It is my view that these
sentiments must find application in this instance.
[69] I therefore conclude
that insofar as the second respondent found that the issues raised
against the third respondent were poor
performance issues, the second
respondent was required to determine the merits of the same. Had the
second respondent properly,
rationally and reasonably determined the
merits of the poor performance complaint against the third
respondent, she could only
have concluded that there was indeed
substance in the same, and the issues raised by the second applicant
was entirely justified.
To put it simply – the second applicant
had proper cause to complain about the third respondent’s work
performance,
if that was indeed the issue. In this regard, I align
myself to the following extract from the judgment in
Boss
Logistics v Phopi and Others
49
which can equally be
applied to the current matter:
‘
The
evidence of Mr Van Rensburg as regards the seniority of the position
was clear and unequivocal. The first respondent's job title
was that
of customer relationship manager. He was obviously not appointed to a
menial position and his salary was commensurate
with a management
position. The first respondent's bald denial that he had a senior or
management position, rings hollow in the
face of these facts.
When
regard is had to the first respondent's CV, it appears that he
clearly knew what a management position was. Not only does his
CV
stipulate that he had been employed as a major accounts manager at
TNT, but it spells out in considerable detail the responsibilities
he
supposedly carried in such a position. These responsibilities are
clearly consistent with being part of management as opposed
to being
merely a sales representative or clerk. If the first respondent had
in fact been a manager at TNT, he must clearly have
been able to rate
his own performance once he started work at the applicant company. If
he encountered any difficulties, he ought
to have made this known and
ought to have asked for assistance. In addition, according to the
evidence, applicant had a number
of customer relationship managers in
its employ and it would presumably have been a relatively simple
exercise for the first respondent
to measure his performance against
theirs. Given the aforesaid facts and circumstances which appear from
the record of the proceedings,
it appears to me that no reasonable
commissioner would have come to the conclusion that the first
respondent's dismissal was substantively
unfair.’
[70] It is my view that
the above really sums up the case against the third respondent. He
did not provide leadership, did not implement
a business plan and
case management system, and simply did not proactively manage his
department with the necessary diligence,
vision and creativity. The
third respondent did not build and manage a cohesive legal team,
which was essential. Instead, the third
respondent was consistently
obstructive and confrontational because of what he perceived to be
undue interference in his terrain
and ulterior purposes of the DG to
have him resign. Most of the individual charges brought against the
third respondent, although
not being per se attributable to him, are
but the symptoms of this greater and core problem.
[71] I wish to refer to
one final incident which I believe succinctly illustrates my views
with regard to the above. On the common
cause evidence, submissions
were made in the name of Legal Services to the Department of Justice
in respect of Discussion Paper
104 on Domestic Partnerships, in
January 2004. It was also undisputed that the views reflected in such
submissions did not accord
with the views of the Department of Home
Affairs, and some of the views were in fact in nature unacceptable.
The submissions were
actually made in the name of the third
respondent, and on face value purported to come from him. It was then
established in the
arbitration that the submissions came from one of
the subordinates in Legal Services, being Henry Madalane
(“Madalane”).
Madalane contended that the third
respondent instructed him to make these submissions, and that the
third respondent in fact checked
the content before it being. The
third respondent disputed this, and stated that he had no knowledge
of submission and never authorised
it. It was however common cause
that Madalane put the third respondent’s name on the
submissions. If the third respondent’s
contentions are correct,
then Madalane not only acted on his own bat and without authority but
actually misrepresented that he
was doing so in the name of the third
respondent as Chief Director. The crisp question then was – why
did the third respondent
not take action against Madalane, and he was
confronted with this in cross examination. The answer of the third
respondent was
that because Madalane did not report directly to him
but to one of his subordinates, he could not take action. Despite
this explanation
of course being entirely unacceptable, it
illustrates the core problem in the management of Legal Services.
[72] I thus conclude that
based on all of the above, whether it be considered to be misconduct
or poor performance, there can be
little doubt that the third
respondent failed. I also conclude that such failure was of
significant scope and extent so as to have
principally justified his
dismissal on a substantive basis. The third respondent, in my view,
was clearly “guilty”
(and I use the term very loosely) of
either the principal charges of misconduct against him or of poor
performance or both. If
this was where the enquiry stopped, I would
have had little hesitation in concluding that the dismissal of the
third respondent
by the applicants was substantively fair. However,
what also needs to be considered is the issue of sanction, and this I
will consider
hereunder.
[73] I will now turn to
where I believe the second applicant did fail in this matter, and
this is in respect of the issue of sanction.
As the second respondent
determined that the third respondent was not guilty of any of the
issues against him, she did not determine
the issue of sanction. I
have however concluded, as set out above, that the second
respondent’s conclusion that the third
respondent is not guilty
of anything is not sustainable and thus reviewable. Since I have
concluded that a proper determination
of the evidence reveals that
the third respondent is indeed “guilty” of the principal
causes of complaint against him,
the issue of sanction must be now be
considered, which I will now do. In general terms, the failure of the
second applicant lies
in its failure to afford the third respondent
an opportunity to remedy his failures. In my view, if the issues were
that of misconduct,
progressive discipline needed to be applied, and
if the issues were that of poor performance, the deficiencies the
second applicant
perceived with his performance should have been
highlighted to him and he should have been given the opportunity to
remove such
causes of complaint. The fact of the matter is that what
the evidence shows is that by the end of 2004, the second applicant
had
had enough of the third respondent. It was then decided to throw
the book at him on each and every failure for the preceding year
that
the second applicant could think of. The problem with this approach
of the second applicant is that whether one calls it progressive
discipline or an opportunity to remedy poor performance, what the
second applicant should have done is to consistently address
each of
these issues during the course of the year with the third respondent,
give him an opportunity to remedy these causes of
complaint, and
specifically warn him that if he failed to do so, his continued
employment was being placed at risk.
[74] Based on the
principles I have discussed above relating to senior managers, I do
not say that the full poor performance process
must be applied. I do
not say that the third respondent required training, guidance,
counseling and assistance. I also do not say
that the third
respondent was in any way unable to properly fulfill his functions.
In my view, it is clear that the third respondent
knew exactly what
he required to do in order to properly discharge his duties, that he
was the expert in his field and did not
require any assistance or
guidance or training. In my view, it was also not necessary to apply
the “full” poor performance
process as envisaged by the
SMS handbook and/or Schedule 8 of the LRA to the third respondent.
All I say, in simple terms, is that
the third respondent in the
circumstances of this particular matter should have been forewarned
of his failures and forewarned
that if he does not fix the failures
in a specified time period, he would face dismissal.
[75] I have referred
above to the address by the DG on 25 September 2003 to senior
management in the second applicant. In this address,
and in
specifically addressing Legal Services, the DG recorded that
“critical and decisive” intervention was required
and it
was certainly intimated that the DG himself would be involved in the
intervention. Even if it was not the intimation of
the DG to become
involved in the intervention referred to, it still remains my view
that he should have done so. The DG should
have engaged the third
respondent to make it clear to the third respondent what in the view
of the DG was wrong and where intervention
was required, and then
give the third respondent the opportunity, against the risk of
dismissal if this did not happen, to give
the DG what the DG
required. There is no evidence that this ever happened. It must also
be considered that that Gilder was at the
time the newly appointed
DG, which made such a kind of intervention even more important.
Finally, and as I have said before, the
fact that the situation was
in essence allowed to perpetuate for more than a year with no real
intervention could reasonably have
lulled the third respondent into a
false sense of security under the new DG, for want of a better
description, which had to be
dispelled first.
[76] If the appointment
of Thlagale could be considered to be an attempted intervention in
Legal Services, this was wholly insufficient
and inadequate. It must
have been clear relatively early in the relationship that there was
no working relationship between Thlagale
and the third respondent.
Also, Thlagale was not really the appropriate person to make it clear
to the third respondent what was
required of him and what the
consequences would be if this did not happen. The evidence also
showed that instead of giving guidance
on how to resolve problems,
where the same existed, Thlagale instead took on individual
functional duties and responsibilities
– in other words she did
the work herself. This does not assist in identifying problems for
resolution with the involvement
of the third respondent.
[77] I specifically refer
to what the Court said in
Somyo
v Ross Poultry Breeders,
50
as referred to above, to
the effect that ‘[a]n employer who is concerned about the poor
performance of an employee is normally
required to... to warn the
employee that if his work performance does not improve, he might be
dismissed; and to allow the employee
a reasonable opportunity to
improve his performance’.
It
is in these two respects where the second applicant in my view thus
failed. If the situation is one of misconduct, I refer to
Chibi
v MEC: Department of Co-operative Governance and Traditional Affairs
(Mpumalanga Provincial Government) and Another
51
where the Court held,
with specific reference to the SMS handbook:
‘
Further
the SMS Handbook incorporates the Labour Relations Act's Code of Good
Practice on dismissal. This means that the respondents
intended that
progressive discipline be applied to acts of misconduct rather than
employees being dismissed in the first instance.’
In
Department
of Labour v General Public Service Sectoral Bargaining Council and
Others,
52
the Court said:
‘
It
is to be noted that the director-general, when offering the
respondents to consider an alternative sanction short of dismissal,
was in effect complying with the provision relating to the purpose
and object of discipline. By giving the respondents an option
of
accepting a sanction other than dismissal, the director-general was
offering them an opportunity to correct their behaviour
and to
rehabilitate themselves.
’
Therefore, and in the
event of the issues being that of misconduct, this was first instance
misconduct, which in the circumstances
required an opportunity to be
given to the third respondent to correct his behaviour. It is
therefore on the principles of law
as set out in this paragraph that
the second respondent, in my view, could have concluded that the
dismissal of the third respondent
was substantively unfair, had she
considered the issue. I, accordingly, intend to determine that the
dismissal of the third respondent
was substantively unfair on this
basis.
[78] In the
circumstances, I would uphold the determination of the second
respondent that the dismissal of the third respondent
was
substantively unfair. I, however, cannot sustain the reasoning of the
second respondent in coming to this conclusion, being
in essence that
the third respondent is guilty of nothing. There can be no doubt that
the third respondent indeed failed, and this
must still have a
material impact on the relief that should have been afforded to the
third respondent for the finding of unfair
dismissal in this matter,
as will be addressed hereunder.
The issue of the
relief
[79] It is clear from the
award of the second respondent that she simply opted for awarding
reinstatement to the third respondent.
She gave no reason for this
determination, referred to no evidence in this regard and exercised
no judicial discretion as required.
This the second respondent did
despite the issue of reinstatement is being an inappropriate remedy
being specifically raised by
the second applicant. It is true that
reinstatement is the primary remedy in the case of a dismissal of an
employee that is found
to be substantively unfair. Section 193(1)
provides that:
‘
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 … ‘
Section
193(2) then provides that ‘
The
Labour Court or the arbitrator must require the employer to
re-instate 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.’
In applying the above
provisions, the Court in
Equity
Aviation Services Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
53
said:
‘
The
legislative structure for the resolution of unfair dismissal disputes
is clear and coherently crafted. The LRA allows for any
of the three
remedies set out in s 193(1) to be granted to an unfairly dismissed
employee. Reinstatement or re-employment remains
the legislatively
preferred remedy so as to restore the employee to the employment
relationship. They safeguard the employee's
security of employment.
Either of the two remedies may be granted except in the specified
circumstances set out in s 193(2) in
which case compensation in terms
of s 193(1)
(c)
may be ordered, the amount of which depends on the nature of the
dismissal.’
[80] What the above means
is that, despite the fact that reinstatement is indeed the primary
remedy for a substantively unfair dismissal,
it is not a compulsory
remedy. In this regard, and in the recent judgment of
Mediterranean
Textile Mills (Pty) Ltd v SA Clothing and Textile Workers Union and
Others,
54
the Court said:
‘
By
its use of the word 'must' in s 193(1)
(a)
of the LRA, the legislature clearly intended that upon the finding in
a given case that the employee concerned was substantively
unfairly
dismissed, such employee must be reinstated, if the employee so
wished, unless either or both of the conditions referred
to in paras
(b)
and
(c)
of subsection (2) of the said section (hereinafter, for the present
purpose, referred to as 'the non-reinstatable conditions')
are
present. It was common cause that the appellant sought to rely only
on the second-mentioned condition, namely, that it was
'not
reasonably practicable' for the appellant to reinstate the employees.
It is notable that in terms of the earlier decisions,
s 193(2) was
construed as placing an onus on the employer to establish the
existence of any of the non-reinstatable conditions,
but since
Equity
Aviation
there has been a constitutional paradigm shift in this regard. Rather
than departing from the premise of a legal onus, the focal
point and
overriding consideration in this enquiry should be the underlying
notion of fairness between the parties 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”.
In further amplification, the Constitutional Court, in
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
,
stated: “The remedies awarded in terms of s 193 of the LRA must
be made in accordance with the approach set out in
Equity
Aviation
.
That approach is based on underlying fairness to both employee and
employer. It would introduce unwanted and unnecessary rigidity
to
saddle an enquiry into fairness with notions of a legal onus.”'
The Court in
Mediterranean Textile
Mills (Pty) Ltd
concluded
that:
55
‘…
at
the conclusion of each case it remains the responsibility of the
court or the arbitrator to determine whether or not, on the
evidentiary material properly presented and in the light of the
Equity
Aviation
principle, it can be said that the reinstatement order is justified.
In other words, even in a situation such as the present, where
no
specific evidence was canvassed or submissions made during the trial
on the issue of the non-reinstatable conditions, the court
or the
arbitrator is not only entitled but, in my view, is obliged to take
into account any factor which in the opinion of the
court or the
arbitrator is relevant in the determination of whether or not such
conditions exist.’
[81] In applying a
judicial discretion in order to determine whether the
“non-reinstatable” conditions exist in the
current
matter, as would be required in terms of the above principles, it is
my view that this is clearly an instance where reinstatement
would
simply not be appropriate because of the fact that Section 193(2)(b)
would certainly find application. I say this for a number
of reasons.
The first and immediate issue is that the third respondent, no matter
how one looks at it, failed in his position as
Chief Director of
Legal Services. This is evident from the dysfunctional state of Legal
Services and the complete lack of credibility
of such department. The
consequences of this state of affairs have been disastrous, not only
in monetary terms but also in terms
of reputation, considering the
contempt issues and compliance with Court Orders referred to in the
evidence. There can be no doubt
that the second applicant saw the
third respondent as the cause of this situation, and it is highly
likely that this view of the
second applicant will remain. In my
view, the same problems would simply be perpetuated by placing the
third respondent back into
such position, as the situation would
simply deteriorate back into the third respondent defending himself
rather that proactively,
progressively and innovatively managing the
department, which is what is really needed.
[82] The next important
issue to consider is what in fact happened in the arbitration itself,
which cannot be ignored. The attitude
exhibited by the third
respondent in the arbitration was manifestly unacceptable. His
conduct towards his employer in the arbitration
was confrontational,
aggressive and insulting. There are several examples of this on the
record, but I wish to refer to one in
particular. As at the date of
arbitration, the third respondent was still in possession of the lap
top belonging to the applicants,
and never returned it, despite being
dismissed. The third respondent was confronted with this under cross
examination, and he stated
that he was entitled to keep it because he
felt he was owed money and was challenging his dismissal, and for as
long as this was
the case, he would keep it.
56
This is clearly not the
conduct of an employee that wishes to restore an employment
relationship with an employer. The conduct of
the third respondent in
the arbitration also mitigated against any reasonable prospect of the
restoration of the employment relationship.
[83] The third respondent
further contended, as I have already touched on above, that he was
dismissed for being a Christian and
because he did not to ascribe to
the corrupt practices of his employer. The third respondent also
stated that there was a campaign
to get him to resign so that
Thlagale could take over his position, despite the fact that even
after he left Thlagale did not apply
for his position despite acting
in the same on an interim basis upon the third respondent leaving.
The third respondent accused
the disciplinary hearing chairperson of
being biased, without there being any substance in this contention.
When the third respondent
was confronted under cross examination
about not calling particular witnesses, the third respondent answered
that he could not
call such witnesses because they would be corrupted
by the persons remaining behind after he left, and that in any event
all witnesses
are harassed and intimidated by the second applicant.
The third respondent maintained this contention despite conceding
that he
had no evidence of this. The point I wish to make that this
is not the conduct of an employee which could be conducive to the
restoration
of any workable employment relationship, and actually
mitigated against the restoration of such employment relationship.
[84] I will also consider
what Modise, the disciplinary hearing chairperson, found in his
judgment.
57
This judgment was
properly in evidence before the second respondent as well. Modise in
fact considers the issue of progressive discipline,
but unfortunately
was confronted with the absence of the third respondent in the
disciplinary proceedings which prevented him from
properly
determining the issue. Modise recorded that the third respondent made
unreasonable demands in respect of participating
in the disciplinary
hearing and consistently shifted the goal posts. Modise recorded that
‘I expected the employee to welcome
the hearing as an
opportunity to clear his name. He did the opposite’. Modise
stated that he was shocked by some of the allegations
made by the
third respondent in his abortive High Court application. Modise
concluded that it was in the best interest of the department
and
pursuant to considerations of good governance that the third
respondent be dismissed. I agree with what Modise said in this
matter, and this in turn must also mitigate against any award of
reinstatement. I add that the conduct of the third respondent
in
simply refusing to participate in the disciplinary proceedings where
he could have sought to convince his employer to continue
with the
employment relationship strongly counts against any award of
reinstatement. The third respondent in effect deprived the
second
applicant though his own conduct from properly applying corrective
discipline, and this must count against him where it
comes to the
consideration of the restoration of the employment relationship.
[85] The third respondent
never showed any remorse for any of his conduct, even in the
arbitration. The third respondent continued
to maintain that he had
no responsibility at all for the state Legal Services was actually
in. The third respondent continued to
contend that all that had gone
wrong was the fault of everyone else, and in particular Thlagale and
the DG. It is so that it was
raised in the arbitration that Gilder
and Thlagale had since left the second applicant, but in my view this
simply does not matter.
Without the third respondent at least showing
some remorse for what he did and exhibited a willingness to
rehabilitate, no working
relationship with anyone in the second
applicant can be restored.
As
the Court said in
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others:
58
‘
This
brings me to remorse. It would in my view be difficult for an
employer to re-employ an employee who has shown no remorse.
Acknowledgment of wrong doing is the first step towards
rehabilitation. In the absence of a re-commitment to the employer's
workplace
values, an employee cannot hope to re-establish the trust
which he himself has broken. Where, as in this case, an employee,
over
and above having committed an act of dishonesty, falsely denies
having done so, an employer would, particularly where a high degree
of trust is reposed in an employee, be legitimately entitled to say
to itself that the risk to continue to employ the offender
is
unacceptably great.’
In my view, the above
directly applies to the current matter.
[86] In
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others,
59
it was held as follows:
‘
The
general principle that conduct on the part of an employee which is
incompatible with the trust and confidence necessary for
the
continuation of an employee relationship will entitle the employer to
bring it to an end is a long-established one. See
Council
for Scientific and Industrial Research v Fijen
(1996)
17 ILJ 18 (A)
at
26E-G… It is to be underlined that Mr Henn's course of conduct
leaves no space at all for one to distil a spirit of remorse
or an
allied desire to repair any damage to the employment relationship
which had resulted from his unlawful retention of the amounts
paid to
him. In regard to the latter aspect, a striking feature of the case
presented for Mr Henn was the submission that the root
cause of the
problems which have arisen lies in the municipality's administrative
incompetence in making the payments in the first
place. That is a
fundamentally unsound approach... His attempt to transpose the
culpability on to his employer does no more than
to accentuate his
lack of remorse.’
[87] The Labour Appeal
Court specifically dealt with the issue of appropriate relief in the
case of a finding of unfair dismissal
in the matter of
Independent
Municipal and Allied Trade Union on behalf of Strydom v Witzenberg
Municipality and Others.
60
The Court held that:
61
‘
I have noted that
the relief sought by the employee was that of reinstatement,
alternatively compensation. It is trite that the
primary remedy is
that of reinstatement, except where same is inappropriate, in which
event compensation should be ordered.’
The Court considered the
conduct of the employee party, and the fact that the employee had not
worked for the employer for a considerable
period of time as relevant
factors in coming to the conclusion that reinstatement was not
appropriate.
62
[88] I also find guidance
in the recent judgment of
National
Union of Metalworkers of SA on behalf of Maifo and Others v Ulrich
Seats (Pty) Ltd,
63
where the Court dealt
with the same issue. It was held as follows:
‘
In
the present matter, the applicants prayed for reinstatement. The
issue that then arises is whether any of the factors listed
in of the
LRA exists, which may in terms of the principles of fairness require
the court to make an order that is less than reinstatement.
’
After analysing the case
law on this issue, the Court concluded as follows, which I
respectfully agree with:
64
‘
It
would seem to me that in considering whether the remedy of
reinstatement is just and equitable, account should be taken of the
following:
(a)
the outcome of the enquiry into
the fairness or otherwise of the dismissal;
(b)
the core value of the LRA being
security of employment;
(c)
the period between the dismissal
and trial or the arbitration hearing;
(d)
the impact that the delays
between the date of the dismissal and the date of the hearing may
have on the fairness of the relief
to be made;
(e)
that the employees were without
income during the period of dismissal.
’
[89] I also refer to
Boxer
Superstores (Pty) Ltd v Zuma and Others,
65
the Court held as
follows:
‘
Secondly,
in attacking the conclusion reached by the court a quo that 'the only
appropriate remedy was to reinstate the employee
fully', Mr
Smithers
correctly
referred to the architecture of the Labour Relations
Act
66 of 1995
(the
Act) and particularly to s 193(2) thereof. In a case, as in the
present dispute, where it is found that an employer has not
discharged the onus of proving that a dismissal was fair, the
competent remedy is that of reinstatement. Reinstatement is in
effect,
the default position. Section 193(2) sets out alternative
remedies that the Labour Court or an arbitrator may utilize other
than
reinstatement. These include re-employment or compensation.
In
Volkswagen
SA (Pty) Ltd v Brand NO and Others
(2001)
22 ILJ 993 (LC)
;
[2001] 5 BLLR 558
(LC) at 582, Landman J found
that it was not open to an arbitrator, if the circumstances
surrounding the dismissal were that a
continued employment
relationship would be intolerable, nevertheless to order
reinstatement. In these circumstances, an arbitrator
would have no
discretion, she could only award compensation and not reinstatement.
In short, s 193(2) mandates the arbitrator or
the court, where
applicable, to examine the factors set out in the section, in order
to craft the remedy. If the evidence indicates,
for example, that a
continued employment relationship is intolerable, the arbitrator
cannot reinstate but must employ an alternative
remedy, in this case
compensation. Mr
Smithers
correctly
noted that Pillay J had not engaged with the requirements of s 193(2)
but simply concluded that the only appropriate remedy
was to
reinstate. The only appropriate remedy may well have been to
reinstate but that could not simply be concluded without more.
The
enquiry required an engagement with the requirements of s 193(2) and
the evidence before the court as to the nature of the
relationship
between the parties.’
The Court concluded as
follows:
66
‘
The
third respondent's award was manifestly irrational and to that extent
the judgment of Pillay J is correct. It is irrational
because the
third respondent gave no reasons for awarding compensation after
having found that the appellant had failed to discharge
the onus in
relation to substantive dismissal. What third respondent should have
done was to have said in effect: I have examined
the evidence. It
appears to me that, given the grave nature of the charges levelled
against first respondent, that is of dishonesty,
it is clear that the
relationship between the two parties is at the level where they can
no longer work together. Reinstatement
would therefore be
inappropriate, re-employment would be inappropriate because of the
conclusions reached by the appellant as set
out in my award.
Accordingly in terms of the powers that I have under s 193(2), I make
a small award of compensation.’
[90] The dismissal of the
third respondent dates back to 2005, the principal cause of which
seems to be systemic delays. In the
judgment of
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others,
67
the Court said:
‘
I
now return to the argument at hand. It is that "systemic delays"
justify the development of a constitutional duty for
the Labour
Appeal Court to initiate an enquiry of its own into post-judgment
facts, even when the original order was justified
on the facts at the
time it was made and where no application to lead further evidence on
appeal was made by any of the parties
either. The answer to that
contention must, in each instance where it is aired, be determined by
an examination of the facts of
the particular case. A similar kind of
argument was raised, but rejected, in
Equity
Aviation
[
Equity
Aviation Services (Pty) Ltd v Commission of Conciliation, Mediation
and Arbitration and Others
[2008] ZACC 16
;
2009
(2) BCLR 111
;
2009 (1) SA 390
(CC); (2008)
29 ILJ 2507 (CC)]. It needs to be rejected in the present case as
well.’
In the light of this
judgment, and as can be seen from what is set out above, I limited
the basis of the determination of the issue
of reinstatement as an
appropriate remedy to the circumstances and events as they existed at
the time of the arbitration in 2006.
I shall have no regard to any
events between this date, and when the matter finally came before me
in 2013.
[91] The third respondent
was dismissed at the end of April 2005. The arbitration was only
concluded at the end of August 2006,
being some 16 months later. In
this period of time, matters at the second applicant had moved on and
there was even a new DG appointed.
The third respondent however
clearly did not work in Legal Services in this period, and
considering the nature of the functions
that Legal Services fulfill,
in particular that of dealing with continuing legal proceedings, this
long period of absence is significant.
The period of delay in this
regard must therefore be considered in determining whether
reinstatement is appropriate, and in my
view, clearly mitigates
against it. In
Republican
Press (Pty) Ltd v CEPPWAWU and Others,
68
the Court said:
‘
...
While the Act requires an order for reinstatement or re-employment
generally to be made a court or an arbitrator may decline
to make
such an order where it is "not reasonably practicable" for
the employer to take the worker back in employment.
Whether that will
be so will naturally depend on the particular circumstances, but in
many cases the impracticability of resuming
the relationship of
employment will increase with the passage of time. In my view the
present case illustrates the point.’
That
is not to suggest that an order for reinstatement or re-employment
may not be made whenever there has been delay... It means
only that
the remedies were probably provided for in the Act in the belief that
they would be applied soon after the dismissals
had occurred, and
that it is a material fact to be borne in mind in assessing whether
any alleged impracticability of implementing
such an order is
reasonable or not. In the present case the passage of six years from
the time the workers were dismissed, all
of which followed
consequentially upon the failure of the union to pursue the claim
expeditiously, was sufficient in itself to
find that it was not
reasonably practicable to reinstate re-employ the workers. In my view
it was entirely inappropriate for such
an order to be granted.
'
[92] In the end, and if
there is ever a case where the evidence clearly indicates that any
award of reinstatement would be inappropriate
on the basis that a
continued employment relationship would be intolerable as
contemplated by Section 193(2)(b), then this case
must be it. What is
clear from the award of the second respondent is that she simply
plumbs for reinstatement. She does not properly
determine the issue,
and does not exercise any discretion at all. Having regard to the
events before her in the arbitration as
evidenced by the record of
the arbitration proceedings, the second respondent would be compelled
to have, had she exercised her
discretion on the issue of relief in a
judicial manner, determined that any award of reinstatement simply
could not have been made
due to the existence of the non-reinstatable
factor as contemplated by Section 193(2)(b). The second respondent’s
conduct
in simply making an award of reinstatement in this instance
thus constituted a reviewable irregularity in terms of the principles
as set out above, and such conduct does not fall within the bands of
reasonableness expected of an arbitrator such as the second
respondent. I, accordingly, review and set aside the award of
reinstatement made by the second respondent in favour of the third
respondent.
[93] In this matter, the
appropriate relief to have been afforded to the third respondent was
one of compensation.
69
Since this was not the
determination of the second respondent in her award, I intend to
substitute the award of the second respondent
on the issue of relief
by making a determination of compensation. I see no need to refer the
issue of compensation back to the
first respondent for determination
by the second respondent, and will determine appropriate quantum of
compensation having regard
to the evidence on record, which is
sufficient to properly and reasonably do so in this instance.
70
Similarly, this requires
the exercise of a judicial discretion, and I refer to what the Court
said in
Matjhabeng
Municipality v Mothupi No and Others
:
71
‘
The
commissioner then decided that R250,000 was a just and equitable
amount without giving reasons why he came to that conclusion.
In my
opinion he should have gone further and given reasons why he accepted
that the said amount was just and equitable, and perhaps
also taken
into account whether the third respondent was working, how much he
was paid, etc. Even if he came to the same conclusion
at least one
would know why he came to that conclusion. On that basis, it is my
conclusion that the failure on the part of the
commissioner to
justify the compensation amounts to a reviewable irregularity.
Commissioners
should be vigilant at all times, especially where they decide not to
grant compensation or they grant one or two months
or so
compensation, or where the maximum compensation is granted, to make
sure that they give reasons therefor. Therefore, commissioners
should
be careful not [to burden] the courts with the task of making
inferences from the body of evidence for the reasons for the
compensation, although the courts will not fail in their duty in that
respect.’
[94] As to the exercise
of the discretion in making an determination of the quantum of
compensation, reference is made to the well
known considerations as
set out in
Ferodo
(Pty) Ltd v De Ruiter.
72
In
Le
Monde Luggage CC t/a Pakwells Petje v Dunn NO and Others,
73
the Court held
:
‘
The
compensation which must be made to the wronged party is a payment to
offset the financial loss which has resulted from a wrongful
act. The
primary enquiry for a court is to determine the extent of that loss,
taking into account the nature of the unfair dismissal
and hence the
scope of the wrongful act on the part of the employer. This court has
been careful to ensure that the purpose of
the compensation is to
make good the employee's loss and not to punish the employer.’
[95] Reference is also
made, with regard to how this discretion has been exercised in the
past, to the judgments in
Mohlakoane
v CCMA and Others (2010)
31 ILJ 2688 (LC)
;
SA Post
Office Ltd v Jansen Van Vuuren NO and Others
(2008)
29 ILJ 2793 (LC);
Metalogik
Engineering and Manufacturing CC v Fernandes and Others
(2002) 23 ILJ 1592 (LC):
Rope
Constructions Co (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
(2002)
23 ILJ 157 (LC);
H
M Liebowitz (Pty) Ltd t/a the Auto Industrial Centre Group of
Companies v Fernandes
(2002)
23 ILJ 278 (LAC);
Ensign
Brickford SA (Pty) Ltd v Shongwe NO and Others
(2001) 22 ILJ 146 (LC).
[96] In applying the
above principles, and in order to come to a fair and equitable
determination on the issue of the appropriate
amount in compensation,
I consider the following: (1) The second applicant did have a proper
cause of complaint against the third
respondent, but needed to give
him an opportunity to remedy the causes of complaint so as to avoid
his dismissal; (2) the third
respondent was still unemployed as at
the date of the arbitration; (3) the third respondent had a length of
service approaching
seven years at the time of his dismissal and was
a senior employee; (4) the third respondent presented no evidence as
to his attempts
to mitigate damages; (5) the third respondent refused
to participate in the disciplinary hearing where he could have
cleared his
name, if he believed he was wrongly treated; (6) I also
consider the conduct of the third respondent in the arbitration; and
finally
(7) the fact that the DG and Thlagale contributed to the
problem by not actively engaging the third respondent in an
intervention
in the department, as was envisaged would be the case.
Applying these considerations, and applying a general sense of
fairness,
it is my view that an award of 9(nine) months’ salary
in compensation in favour of the third respondent is appropriate. It
was common cause on the pre-trial minute that the applicant earned
R533 000,00 per annum, giving a total compensation award
of R399
750,00.
[97] Accordingly, in the
light of all of the above, I conclude that the award of the second
respondent on the issue that the third
respondent’s dismissal
was substantively unfair is upheld, but that the award of the second
respondent that the third respondent’s
dismissal was
procedurally unfair is reviewed and set aside. I further review and
set aside the award of the second respondent
as regards the issue of
relief, and shall substitute such award with an award of compensation
on the basis as set out above.
[98] This then only
leaves the issue of the third respondent’s Section 158(1)(c)
application and the issue of costs. Considering
the determination I
have come to as set out above, I shall make that part of the award of
the second respondent that has been upheld
an Order of Court. In
respect of the issue of costs, it is clear that both parties enjoyed
success in this matter. It is also clear
that both parties
contributed to the delays in this matter, and both parties had to be
directed to file heads of argument. Mr Beaton,
who represented the
third respondent, pressed for costs if I should find as I did in this
instance, and Mr Pio, who represented
the applicants, did not really
press the issue of costs and in essence left the matter in the hands
of the Court. In terms of the
provisions of Section 162(1) and (2) of
the LRA, I have a wide discretion where it comes to the issue of
costs. I exercise this
discretion in favour of making no order as to
costs, as I am of the view that this would be fair and appropriate in
this instance.
This, however, does not affect the wasted costs order
I have already made against the applicants in paragraph 7 of my Order
issued
on 15 January 2013.
Order
[99] In the premises, I
make the following order:
99.1. The arbitration
award of the second respondent, being arbitrator Z Mdladla, dated 14
August 2006 in the arbitration proceedings
between the second
applicant and the third respondent, under case number PSGA 126/05/06,
to the effect that the dismissal of the
third respondent by the
second applicant was substantively unfair, is upheld and confirmed;
99.2. The arbitration
award of the second respondent, being arbitrator Z Mdladla, dated 14
August 2006 in the arbitration proceedings
between the second
applicant and the third respondent, under case number PSGA 126/05/06,
to the effect that the dismissal of the
third respondent by the
second applicant was procedurally unfair, is reviewed and set aside
and replaced with a determination that
the dismissal of the third
respondent by the second applicant was procedurally fair;
99.3. The arbitration
award and the variation award of the second respondent, being
arbitrator Z Mdladla, dated 14 August 2006 and
30 August 2006
respectively, in the arbitration proceedings between the second
applicant and the third respondent, under case number
PSGA 126/05/06,
as to the relief of reinstatement and back pay afforded to the third
respondent, is reviewed and set aside;
99.4. The award of the
second respondent with regard to the issue of relief as contained in
the arbitration award dated 16 August
2006 and the variation award
dated 30 August 2006 is substituted
in toto
by an award that
the third respondent is entitled to compensation in an amount
equivalent to 9(nine) months’ salary, being
an amount of
R399 750.00;
99.5. The arbitration
award of the second respondent in favour of the third respondent as
amended by this Order to the effect that
the dismissal of the third
respondent by the second applicant was substantively unfair and
procedurally fair and that the third
respondent be awarded
compensation in an amount of R399 750.00 is hereby made an Order
of Court in terms of Section 158(1)(c)
of the LRA;
99.6. There is no order
as to costs in both the proceedings under case number JR 2326/06 and
J 1710/06, save for the award of wasted
costs made against the
applicants in paragraph 7 of the Order dated 15 January 2013 which
shall continue to apply.
____________________
Snyman AJ
Acting Judge of the
Labour Court
APPEARANCES:
For the Applicant:
Advocate P. Pio
Instructed by: The State
Attorney
For the third Respondent:
Adv R Beaton SC
Instructed by: Rooth &
Wessels Attorneys
1
66
of 1995.
2
See
Record page 383.
3
See
record page 105 – 106.
4
(2007)
28 ILJ 2405 (CC)
at para
106.
5
(2008)
29 ILJ 2461 (CC)
at
para 84.
6
(2012)
33 ILJ 1789 (LAC).
7
Id
at paras 36 and 39.
8
(2008)
29 ILJ 964 (LAC) at para 92.
9
(2010)
31 ILJ 452 (LC) at para 17.
10
(2010)
31 ILJ 1425 (LC) at para 18.
11
(2010)
31 ILJ 1460 (LC) at para 8.
12
(2004)
25 ILJ 231 (LAC) at para 55.
13
Fidelity
Cash Management Service
at para 40 – 41.
14
(2008)
29 ILJ 2933 (LC) at para 25.
15
(2007)
28 ILJ 1499 (SCA) at para 16.
16
(2010)
31 ILJ 1787 (LAC) at para 58.
17
(2006)
27 ILJ 1644 (LC) 1651-1652.
18
(2011)
32 ILJ 723 (LC) at para 9.
19
see
Rex v Dhlumayo
1948 (2) SA 677
(A);
Fidelity Cash
Management Services (Pty) Ltd v Muvhango NO and Others
(2005) 26
ILJ 876 (LC);
Scopeful 21 (Pty) Ltd t/a Maluti Bus Services v SA
Transport and Allied Workers Union on behalf of Mosia and Others
(2005) 26 ILJ 2033 (LC);
Custance v SA Local Government
Bargaining Council and Others
(2003) 24 ILJ 1387 (LC)). In this
regard, I further refer to
Standerton Mills (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
(2012) 33 ILJ 485 (LC) at para 18.
20
Id
at para 20 ; see also
Network Field Marketing (Pty) Ltd v
Mngezana NO and Others
(2011) 32 ILJ 1705 (LC) at para 18 –
19.
21
Id
at para 7.
22
(2005)
26 ILJ 1652 (LAC) at para 39; See also
Southern Sun Hotel
Interests (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(
supra
) footnote 13;
Masilela v
Leonard Dingler (Pty) Ltd
(2004) 25 ILJ 544 (LC).
23
2003
(1) SA 11
(SCA) at para 5.
24
(2000)
21 ILJ 2585 (SCA) at para 9.
25
1985
(3) SA 916
(A)
at
939I-J
.
26
1952
(1) SA 732
(N)
at
734A-C
.
27
(1994)
15 ILJ 1057 (LAC)
at
1064C-E
.
28
Para
6.16 of her award at record page 71.
29
(2002)
23 ILJ 1413 (LC) at para 14.
30
(2003)
24 ILJ 655 (CCMA).
31
(2002)
23 ILJ 189 (LC) at para 11.
32
Id
at 670F-H
33
(2009)
30 ILJ 1396 (CCMA) at 1417D-J.
34
(2011)
32 ILJ 1766 (LC)
at para 44 – 45.
35
Id
at para 56 – 57.
36
(2003)
24 ILJ 305 (CC).
37
Id
at para 66
38
(2001)
22 ILJ 495 (CCMA)
39
See
page 517C-F of the award where it was held: ‘
As
I see the dispute, rather than looking at each specific charge and
the factual disputes within those charges, one question
needs to be
asked: Did the employee's wor
k performance
justify her position on the top rung of middle management, namely as
manager of the planning and administration department? The
employee's challenge has been in the form of a piecemeal attack on
various factual (and grammatical) discrepancies within the
charges
as stated. Whilst I understand that it is necessary to highlight
specific occurrences in an attempt to assess the employee's
overall
performance
, the question to be decided
remains whether the employer justifiably demoted the employee on the
basis that she was not satisfactorily
discharging her duties as the
manager of the P&A department. The employer's case is that the
employee was incompetent at
her job
,
and therefore this dispute is essentially a dispute over alleged
incapacity and
whether,
as
a whole
, the employer has proven
its case on a balance of probabilities.’
40
Id
at 519F-H.
41
Id
at page 519I – 520B.
42
Id
at page 519E-F.
43
(2003)
24 ILJ 1995 (LC).
44
(2000)
21 ILJ 501 (LAC).
45
In
respect of the quotation referred to in this judgment, Conradie JA
however did concur in the majority judgment written by Zondo
AJP (as
he then was).
46
Id
at para 76.
47
(1997)
7 BLLR 862
(LAC).
48
Id
at para 73.
49
(2010)
31 ILJ 1644 (LC) at 1653A-E.
50
Supra,
footnote 45 above.
51
(2012)
33 ILJ 855 (LC) at para 27.
52
(2010)
31 ILJ 1313 (LAC) at para 32.
53
(2008)
29 ILJ 2507 (CC) at para 44.
54
(2012)
33 ILJ 160 (LAC) at para 28.
55
Id
at para 30.
56
See
record page 1147 – 1148
57
See
record page 108 – 110.
58
(2000)
21 ILJ 1051 (LAC)
at
para 25.
59
(2010)
31 ILJ 2475 (LC) at para 23.
60
(2012)
33 ILJ 1081 (LAC).
61
Id
at para 30.
62
Id
at paras 31 – 34.
63
(2012)
33 ILJ 2918 (LC) at para 40.
64
Id
at para 48.
65
(2008)
29 ILJ 2680 (LAC) at para –11.
66
Id
at para 11.
67
(2010)
31 ILJ 273 (CC) at para 48.
68
(2007)
28 ILJ 2503 (SCA) at para 20 and 22.
69
See
Section 193(1)(c)
70
As
the Court did in
Plasticwrap
- A Division of CTP Ltd v Statutory Council for the Printing,
Newspaper and Packaging Industry and Others
(2012)
33 ILJ 2668 (LC) at para 22
71
(2011)
32 ILJ 2154 (LC) at paras 47 – 48
72
(1993)
14 ILJ 974 (LAC)
. The
Court held that ‘(a)
[T]here
must be evidence of actual financial loss suffered by the person
claiming compensation; (b)
There
must be proof that the loss was caused by the unfair labour
practice; (c)
The loss must be
foreseeable, ie not too remote or speculative ; (d)
The
award must endeavour to place the applicant in monetary terms in
that position which he would have been had the unfair labour
practice not been committed ; (e)
In
making the award the court must be guided by what is reasonable and
fair in the circumstances ; (f)
There
is a duty on the employee (if he is seeking compensation) to
mitigate his damages by taking all reasonable steps to acquire
alternative employment.’
73
(2007)
28 ILJ 2238 (LAC)
.