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[2013] ZALCJHB 28
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Farmers Meat Supply v Mgwenya NO and Others (JR 248/2011) [2013] ZALCJHB 28 (12 March 2013)
REPUBLIC OF SOUTH AFRICA
Reportable
the labour court of South Africa,
in johannesburg
judgment
c
ase
no
: JR 248/2011
In
the matter between:
Farmers
meat supply
Applicant
and
VUSI
MGWENYA (
N.o.
)
First
Respondent
the
commission for conciliation, mediation and arbitration
Second
Respondent
abel
matsana
Third
Respondent
Heard
:
05 February 2013
Delivered
: 12 March
2013
Summary:
(Review – Dismissal - misconduct - commissioner
misconstruing duties on appropriate test of fairness -award set
aside).
judgment
LAGRANGE, J
Background
The
third respondent in this matter, Mr A Matsana, was charged and found
guilty of "neglect of duty/failing to comply with
duties and
responsibilities in that you did not cut 200 kg of meat as you are
supposed to on 28 July 2010." At the time
of his dismissal on 4
August 2010 the applicant’s duty was to strip meat from
carcasses. The target set was that he was
expected to strip 200 kg
of meat per day. Between 26 June and 28 July 2010, he fell
considerably short of this target on approximately
10 days.
The
first respondent (‘the arbitrator’), who arbitrated the
ensuing unfair dismissal dispute, decided that Matsana's
dismissal
was substantively and procedurally unfair and awarded him five
months salary, amounting to only R13,000. The arbitrator's
reasoning
is summarised below.
Firstly,
the arbitrator found that even though Matsana had been dismissed for
misconduct, he was of the view that the dispute
was essentially a
poor work performance issue because the employee had failed to reach
specific targets and the employer had
not followed the procedure set
out in Item 9 of Schedule 8 to the Labour Relations Act 66 of 1995
(‘the LRA’), being
the Code of Good Practice for
Dismissal (‘the Code’) dealing with dismissals for poor
work performance. Further,
the arbitrator found that the employer
had failed to follow the substantive test for dismissal for poor
work performance as set
out in Item 8 of the Code. The arbitrator
then proceeded to evaluate what the employer did by the procedural
and substantive
criteria set out in Items 8 and 9 of the Code. The
employer was found wanting in both respects and this was the basis
for the
arbitrator’s conclusion that the dismissal was
substantively and procedurally unfair.
Although he concluded that the dismissal was substantively and
procedurally unfair, the arbitrator decided not to reinstate Matsana
because he had testified himself about the unhealthy working
relationship between him and his manager. Accordingly, the
arbitrator
was of the view that it would be intolerable to reinstate
him and awarded compensation instead.
The review application
Even
though it was somewhat poorly phrased, the principal ground of
review relied on by the applicant is that the arbitrator misdirected
himself by evaluating the fairness of Matsana’s dismissal
according to the standards of a dismissal for poor work performance.
In the case of
Fidelity Cash Management Service v Commission
for Conciliation, Mediation & Arbitration & others
(2008)
29 ILJ 964 (LAC)
, Zondo JP, as he then was, held that:
“
[32] It
is an elementary principle of not only our labour law in this country
but also of labour law in many other
countries that the fairness or
otherwise of the dismissal of an employee must be determined on the
basis of the reasons for dismissal
which the employer gave at the
time of the dismissal. The exception to this general rule is where at
the time of the dismissal
the employer gave a particular reason as
the reason for dismissal in order to hide the true reason such as
union membership. In
such a case the court or tribunal dealing with
the matter can decide the fairness or validity of the dismissal not
on the basis
of the reason that the employer gave for the dismissal
but on the basis of the true reason for dismissal.”
1
In this
instance, there is no suggestion that the applicant gave misconduct
as a reason for dismissal in order to conceal the
real reason for
the dismissal. I believe it would be wrong to interpret the dictum
above to mean that if an employer relies on
one lawful reason for
dismissal, the adjudicator is entitled,
mero motu,
to decide
that the employer ought to have relied on a different lawful ground
for dismissal and then evaluate the fairness of
the dismissal as if
the employer had chosen that alternative justification, rather than
to evaluate the fairness of the dismissal
with reference to the
actual ground relied on by the employer. I think that the LAC
envisaged that the kind of scenario, where
such an exceptional
approach would be justified was the type of case where there is
reason to believe that the employer deliberately
relied on one
lawful reason for the dismissal to disguise an unlawful real motive.
I fully
appreciate why the arbitrator might have felt that the employer
would have better dealt with this case as a matter of
poor
performance, but what he ought to have decided was whether or not
the employer had been able to prove that Matsana’s
non-performance amounted to misconduct which justified dismissal.
Clearly, non-performance according to the required standards
of the
workplace could either be on account of an inability of the employee
to perform to the required standards or an unwillingness
to do so.
If an employee is charged with misconduct, but pleads an inability
to perform for one or other reason as a defence,
then if the
evidence shows that there is good reason to believe that the
non-performance is not wilful, then dismissal for misconduct
would
not be justified.
In this
instance, I am satisfied that this was not a case in which the
arbitrator was entitled to determine the fairness of the
dismissal
based on a reason other than the ground of misconduct actually
relied on by the applicant.
Although
the record is complete, this is a matter in which the parties might
wish to make further submissions in argument based
on the fairness
of the dismissal on the grounds of misconduct, as opposed to its
fairness as a dismissal for work performance.
Accordingly, I believe
this should be remitted to be determined on the existing record
subject to the parties being able to present
further argument.
Order
The
award issued by the first respondent dated 27 December 2010 under
case number MP6482-10 is reviewed and set aside.
The
matter is remitted to the second respondent to be set down before a
commissioner other than the first respondent for arbitration
on the
existing record and subject to the parties being permitted to make
further submissions in argument on the procedural and
substantive
fairness of the dismissal for misconduct.
No
order is made as to costs.
_______________________
R LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT: S U Roeloffs instructed by Vogel Malan Attorneys
FIRST RESPONDENT: M Bayi of General Industrial Workers Union of South
Africa
1
At 975