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[2013] ZALCPE 16
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Cadbury SA (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (P 29/11) [2013] ZALCPE 16; [2013] 8 BLLR 761 (LC) (14 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not reportable
Case No: p 29/11
In the matter between:
CADBURY SA (PTY) LTD
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER ERNA LOOCK
Second Respondent
ROSEMARY NASSON
Third Respondent
Heard
:
14 August 2012
Delivered
:
14 May 2013
Summary:
A commissioner’s failure to consider relevant
and material evidence renders his or her award reviewable based on
the process
followed in conducting the arbitration.
Section145 of the LRA review-dismissal for misconduct.
JUDGMENT
LALLIE, J
Introduction
The applicant seeks an order reviewing and setting aside or
correcting the arbitration award of the second respondent (the
commissioner) in which she found that the applicant had dismissed
the third respondent, Ms Nasson (Nasson), unfairly.
Nasson started working for the applicant as a seasonal worker in
1987. She was dismissed in August 2009 while holding the position
of
team manager. Her internal appeal was dismissed. She referred an
unfair dismissal dispute to the first respondent where the
commissioner issued an arbitration award that the dismissal was
substantively unfair but procedurally fair and ordered her
reinstatement. In this application the applicant seeks an order
reviewing setting aside and substituting that award.
Background
In 2009 employees of the applicant committed an act of misconduct
involving absenting themselves from work. The applicant responded
by
instructing its team managers to take disciplinary action against
them. Some team managers including Nasson refused to carry
out the
instruction. Other team managers were issued with final written
warnings but a disciplinary inquiry was held into three
acts of
misconduct against Nassn two of which are stated below as she was on
a final written warning for similar misconduct;
‘
Insubordination in that
(a) On the
15th April you were tasked to have one on one counselling session
with your team (namely Mnconywa L, Mngcete L, Styebi
E, Jantjies N,
Nkewu N, Baba) that took sick leave prior and post Easter holidays.
(b) On the
29th of May you were instructed to discipline all employees in your
shift that participated in the illegal strike action.’
She was found guilty of both acts of misconduct and dismissed.
The commissioner found that the applicant had failed to prove that
Nasson had blatantly defied an instruction. She added that
Nasson
attempted to follow the instruction although she failed to follow it
in the manner that was expected of her. She found
that dismissal was
not an appropriate sanction on the grounds that Nasson had 20 years’
service, it would have been more
appropriate to deal with the
misconduct as a performance issue and the applicant had failed to
prove that she had made herself
guilty of misconduct.
The applicant sought to rely on a long list of grounds for review.
In essence they are that the arbitration award stands to be
reviewed
and set aside because the commissioner’s findings are
unjustifiable, unreasonable and not based on the evidence
which
served before her. The applicant submitted that it led sufficient
evidence to prove that Nasson’s dismissal was substantively
and procedurally fair. Part of the applicant’s evidence which
the commissioner unreasonably and unjustifiably disregarded
was that
it always follows misconduct procedures in cases of insubordination.
Nasson could not furnish any explanation for using
a counselling
form different from the one the applicant provided. Another attack
on the award was based on the commissioner’s
failure to reject
Nasson’s evidence that she kept the one on one chat forms in
her possession and did not hand them to
Mr Ntshudu (Ntshudu) even
after she had held the one on one counselling with employees and
after she had been charged with insubordination.
The applicant submitted that the commissioner acted unreasonably by
disregarding its evidence that Mr Ndingela (Ndingela) counselled
some employees who should have been counselled by Nasson for taking
sick leave before or after the a public holiday. She also
disregarded the applicant’s evidence that the team managers,
including Nasson, were reminded on four occasions to conduct
the
counselling sessions. She further unreasonably failed to consider
that Nasson’s version that she prepared the one on
one chat
forms on 16 April 2009 was improbable as she could give no reason
for not disclosing to Ntshudu on 17 April, 20 April
and 4 May 2009
when she was reminded to hold the one on one counselling sessions
that she had already done so. The applicant
further submitted that
it was improbable that Nasson issued final written warnings for
participation in the unprotected strike
before a decision for such
warnings to be issued was made by the senior management.
Review
The applicant’s review application is processed based. It is
the applicant’s case that the commissioner’s finding
is
inconsistent with the evidence which served before her and her
conduct of the arbitration led her to reach a conclusion which
a
reasonable commissioner could not reach. Commissioners’ duties
regarding the manner in which they should conduct arbitration
proceedings is expressed as follows in
Southern Sun Hotel
Interests (Pty) Ltd v CCMA and Others
:
1
‘
[
16]
Since
Sidumo,
the
Constitutional Court has again had occasion to consider the role of
commissioners and their process-related obligations when
conducting
arbitrations. In
CUSA
v Tao Ying Metal Industries and Others
2
.
It is clear, as Ngcobo J holds, that a commissioner is obliged to
apply his/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 administration.
[17] In summary, section 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
scrutinising 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.’
In
Herholdt v Nedbank Ltd,
3
it was held that:
‘
This
approach has been followed subsequently by this court in
Ellerines
Holdings Ltd v CCMA and Others
and appears to have been endorsed by the Constitutional Court in
CUSA
v Tao Ying Metal Industries and Others
where it was stated that it is now axiomatic that a commissioner is
required to apply his or her mind to the issues before him.
One of
the duties of a commissioner is to determine the material facts and
then to apply the provisions of the LRA to those facts
in answering
the question whether the dismissal was for a fair reason.
Commissioners who do not do so do not fairly adjudicate
the issues
and the resulting decision and award will be unreasonable. 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.’
The CCMA failed to file the entire record of the arbitration
proceedings. It filed only its portion. However, nothing turns on
the omission as the applicant’s case is based on the
arbitration award and it made no reference to the record in its
heads of argument. Mr Unwin for the third respondent referred to the
record briefly. Applicants are not required to file the whole
record
of the arbitration proceedings in all review applications. Rule 7A
(5) requires the applicant to file the portion of the
recording as
maybe necessary for the purpose of the review. The filed portion of
the record is sufficient for purposes of this
application. The
absence of the portion which was not filed neither prejudiced the
parties nor prevented me from taking a proper
or fair decision on
this application.
The applicant’s evidence on charge (a) was that the
respondent, in defiance of his instruction, did not conduct the one
on one counselling sessions. Nasson failed to submit to the human
resources office the completed counselling forms at the required
time and after she was reminded on 17 and 20 April and on 4 May
2009. She also did not disclose that she had already held the
counselling sessions an all the occasion she was reminded. She only
submitted them at the disciplinary enquiry. When the forms
were
scrutinised it was discovered that she gave the employees
counselling on the same date which turned out to be a date on
which
all the employees were not on duty. Some of the employees she
claimed to have counselled were counselled by Dingela, another
team
manager. Nasson’s version of the issue was that she conducted
the counselling but did not record it on the prescribed
forms. She
used a different form which provided detailed explanation, dated all
the forms 16 April 2009 and recorded names in
her diary under 15
April.
Had the commissioner applied her mind to the evidence before her,
she would have found Nasson’s version untrue. Had Nasson’s
evidence on the use of the incorrect form and her diary been true,
she would have presented factually correct information. She
would
have submitted the forms by the due date, told Ntshudu on all three
occasion he reminded her or shortly after gaining the
knowledge that
the applicant was taking her omission to submit the forms seriously
and not allow herself to be subjected to a
disciplinary enquiry when
she was in possession of the relevant forms, completed in terms of
the applicant’s instructions.
In respect of charge (b) the applicants’ evidence was that
Nasson had not carried out its instruction to issue the employees
who reported to her with final written warnings. She did not submit
warnings on their due date and submited them at the disciplinary
enquiry in June. She claimed to have issued them in April. An
examination of the warnings reflected that Nasson had issued them
two weeks before management took the decision that they be issued.
The warnings also reflected that the employees refused to
sign them.
Contrary to the applicant’s policy Nasson did not get a
witness to sign the warnings and confirm the employees’
refusal. At the time the applicant took the decision to dismiss
Nasson she had given no explanation for the way she had completed
the warnings. Had the commissioner applied her mind to the evidence
she would have accepted the applicant’s version and
drawn a
negative inference on Nasson’s credibility for offering, for
the first time at the arbitration, explanation for
the
irregularities in completing the warnings.
The commissioner’s conclusion that the applicant failed to
prove that Nasson was guilty of blatantly defying an instruction
is
in contrast with her findings that on the direct evidence before her
it was clear that Nasson did not follow the instruction
in the
manner expected of her. Insubordination is refusal carry out lawful
instructions. In this regard see
Acrylic Products (Pty) Ltd and
Another v CWIU and Another
4
.
The
commissioner’s finding is that to justify dismissal
insubordination must be gross in that it must be serious, persistent
and deliberate. It disregards the fact that Nasson was on final
written warning for similar misconduct. When an employee is on
a
final written warning it means that the employer may dismiss him/her
when there is a recurrence of similar misconduct. In this
regard see
NUM and Another v Amcoal Collieries t/a Arnot and Colliery and
Another
5
The commissioner’s decision that the applicant should have
treated the misconduct which led to Nasson’s dismissal
as a
performance issue instead of misconduct as it had done so in the
past is not supported by the evidence before her. It is
common cause
that Nasson was on a final written warning for similar misconduct.
This is an indication that the applicant had
treated similar conduct
as misconduct. Nasson led no evidence to the effect that she lacked
capacity to perform her duties.
The commissioner disregarded material and relevant evidence which,
had she applied her mind to, she might have reached a different
result and found Nasson’s dismissal substantively fair. In the
circumstances the arbitration award stands to be reviewed
and set
aside.
I have considered arguments on behalf of Nasson which are based on
the result based test for review. The authority sought to
be relied
upon is not opposite as the applicant’s case is process based.
I do not agree that the flaws in the commissioner’s
reasoning
are not sufficient to set the award aside. The difficulty with this
argument is that it loses sight of the commissioner’s
duty to
appy her mind to the issues in the matter before her.
The applicant sought an order substituting the commissioner’s
finding that Nasson’s dismissal was substantively unfair
with
an order that her dismissal was both substantively and procedurally
fair. I am satisfied that I have been provided with
sufficient
information for making a determination on the fairness of Nasson
dismissal. For the reasons I have given for finding
the
commissioner’s award reviewable, I am of the view that the
commissioner did not apply her mind to relevant and material
evidence before her. The record proves that Nasson was given clear
instructions to conduct counselling and later to issue employees
who
reported to her with warnings. The instructions were clear and
lawful. Nasson understood them but elected not to execute
them.
The explanation proffered by Nasson for committing both acts of
misconduct which led to her dismissal was patently false. The
acts
of misconduct she made herself guilty of were serious. She did not
claim to have been incapable of executing the reasonable
and lawful
instructions issued to her. Consistently with her colleagues, Nasson
was disciplined and she was justifiably given
a sanction more severe
than her colleagues’ as, unlike them, she was on a final
written warning for similar misconduct.
I have considered the evidence in mitigation especially her lengh of
services of twenty one years. I am however of the view that
the
gravity of the misconduct she made herself guilty of and the fact
that she was on final written warning for similar misconduct
out-weighed mitigation by far. Her dismissal was appropriate. In
this regard see
Toyota South Africa Motors (Pty) Ltd v Radebe and
Others.
6
I therefore conclude that Nasson’s dismissal was substantively
fair.
Cost
The applicant sought a costs order against Nasson. Section 162 of
the LRA enables this court to make costs orders according to
the
requirements of the law and fairness. Amongst the factors to be
taken into account in deciding whether to grant a costs order
is the
conduct of the parties in proceeding with or defending the matter
before this court. I have considered the submissions
on behalf of
both parties on the question of costs. I am not convinced that
Nasson unreasonably defended this application. She
was armed with an
arbitration award in her favour which she sought to protect. In the
circumstances I am of the view that granting
a costs order will not
be appropriate.
[21] In the premises, the following order is made :
21.1. The arbitration award issued by the second respondent under
case number ECPE 4132-09 and dated 6 December 2010 is reviewed
and
set aside and substituted with the following:
21.2. The third respondent’s dismissal was substantively and
procedurally fair.
21.3. No order is made as to costs.
_______________________
Lallie, J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv Grogan
Instructed: Joubert Galpin & Searle
For the first Respondent: Mr Unwin of Chris Unwin Attorneys
1
[2008]
2 ILJ 2461 (CC) also reported at
[2009] 1 BLLR 1
(CC)-ED.
2
[2009]
11 BLLR 1128
(LC) Ed at 134 D-G.
3
[2012]
33 ILJ 1789 (LAC) at para.39.
4
[1997]
4 BLLR 370
LAC.
5
[2000]
8 BLLR 869
(LAC).
6
[2000]
3 BLLR 243
(LAC)