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[2013] ZALCD 1
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Kelly Group Ltd v Khanyile and Others (D 28/11) [2013] ZALCD 1; (2013) 23 ILJ 2035 (LC) (23 January 2013)
Reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN DURBAN
JUDGMENT
Case
no: d 28/11
In the matter between:
KELLY GROUP LTD
Applicant
and
BUSISIWE MOIRA KHANYILE
First Respondent
COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION
Second Respondent
A B NGCOBO (
n.o.
)
Third Respondent
Heard
:
16 August 2012
Delivered
:
23 January 2013
Summary:
(Review-dismissal for taking unauthorised leave-
formalism in internal enquiries unnecessary-investigative purpose of
enquiry permits
chairperson to intervene-disciplinary context in
which enquiry occurs permits chairperson to comment on reasons for
rules in the
course of enquiry-considerations affecting compensation
not justified –compensation reduced).
JUDGMENT
LAGRANGE, J
Introduction
The applicant in this matter, Kelly Group Ltd, dismissed the first
respondent, Ms B Khanyile (‘Khanyile’) on 21 July
2010
after she was found guilty of failing to follow company leave
application procedures, and for 10 days unauthorised absence
from
work from 5 to 16 July 2010.
The arbitrator agreed that Khanyile, an account executive, was
guilty of absenting herself without authorisation. However, the
arbitrator felt that the sanction was too harsh. Ultimately he found
that the dismissal was both substantively and procedurally
unfair,
but declined to reinstate Khanyile because the relationship between
Khanyile and her immediate superior, Ms S Alcock
(‘Alcock’),
had broken down even though the trust element of the relationship
had not been damaged. The arbitrator
awarded Khanyile six months’
salary as compensation and justified this amount on the basis of the
discomfort he felt about
the way that the chairperson of the
disciplinary enquiry, Mr B Nash, had conducted himself.
The applicant seeks to set aside the award on review and asks the
court to substitute the arbitrator’s findings with a
finding
that the dismissal was substantively and procedurally fair.
The material facts
According to the company leave policy, the applicant was entitled to
18 days leave a year. The policy further stated:
"As per the Basic Conditions of Employment Act, both the
employer and employee should agree to the timing of the considering
operational requirements.”
The leave policy also contained the following provision:
"
2.
Leave Applications
Applications
for leave should be made
at least one month
in advance
except
in cases of emergency or unforeseen
circumstances.
No employee may proceed on leave unti
l he/she has had the
leave application form
authorised
by an authorised senior
manager.
..."
(emphasis
added)
Clause 9.1.3 of the contract of employment stated:
"Leave must be applied for on the official leave application
form.
Leave will be granted at the sole discretion
of your
Manager, considering operational requirements."
(emphasis
added)
The firm's code of conduct provided that an employee could be
dismissed for unauthorised absenteeism or absence without notice.
Late on Friday 2 July 2010, Khanyile completed a leave application
form and at 17:17 the human resources department sent an e-mail
to
Alcock confirming receipt of the application. Khanyile also sent an
e-mail to Alcock at 17h30 the same day stating:
"Good afternoon Boss
I will be giving you a call to discuss this further, but Umesh has
to leave now so he can lock the office .
I was accepted for a two week training program for HIV and AIDS
Counselling. They confirm today that the training is starting next
week.
I need to do this and have applied for leave. If I don't get the
chance to do it now, I don't know when they will give the opportunity
again.
I had my out of office on and have signed the leave form."
Khanyile agreed that she did not make any proper handover
arrangements before she attended the course. Her view was that the
leave application was made in an emergency situation that justified
her non-compliance with the requirements of the leave policy
in
terms of which the application should have been made a month
beforehand. In fact she had applied to attend the course as early
as
February, but did not apply for leave because she was unsure if and
when she would be accepted on the course.
Alcock testified that she only received the application form on 5
July 2010 when she found it on her desk where Khanyile had
left it
the previous Friday. When she received Khanyile’s e-mail at
home that Friday she had sent her an SMS message that
evening
informing her that her leave was not approved. Khanyile did not
respond until 06h35 hours on Monday 5 July. Alcock was
in the shower
at the time and when she returned Khanyile's call, Khanyile's phone
was switched off. She left a message confirming
her previous advice
that the leave had not been approved.
On Tuesday, 6 July, Alcock sent a telegram to Khanyile once again
confirming that the leave had not been approved and a further
telegram on 9 July giving Khanyile an ultimatum to return to work by
the end of the day. Khanyile conceded that she saw the first
telegram on 12 July. On 16 July, Alcock notified Khanyile by
registered mail of a disciplinary enquiry. Khanyile did visit the
office on both Fridays during her 10 day absence but on each
occasion Alcock was not at the office. Khanyile made no further
attempt to contact Alcock telephonically after 5 July even when she
visited the office on the two occasions mentioned. Khanyile
also
agreed that Alcock had phoned her and advised her that unauthorised
absenteeism was a dismissible offence. It appears she
adopted the
attitude that her dismissal was a foregone conclusion and completed
the course.
The arbitrator's award
As mentioned, the arbitrator found that the applicant was justified
in deciding that Khanyile was absent without authority.
In turning his attention to whether dismissal was an appropriate
sanction, the arbitrator found that Khanyile was "perhaps
justified in her view that no matter what she did, or did not do,
she would most likely be dismissed", because Alcock had
conveyed to her that her conduct amounted to a dismissible offence.
He also found it significant that Khanyile tried to attend
the
course in her own time and that is why she took leave. The
arbitrator then focused on the failure of the chairperson of the
enquiry to consider alternatives to dismissal. He noted that
Khanyile did not have a history of infringing company policy and
that there was not a complete breakdown of trust contrary to what
the chairperson concluded. In arriving at this conclusion,
the
arbitrator was satisfied that there was no dishonesty on the part of
Khanyile.
In the arbitrator's opinion an appropriate alternative to dismissal
would have been to treat Khanyile’s absenteeism as
unpaid
leave and to withdraw support which the company had been providing
to her to study a B Com degree. Although he identified
these
alternative penalties he did not mention whether a warning of any
sort should also be imposed.
Despite his views that the dismissal was substantively unfair, he
declined to reinstate Khanyile because he recognised that the
relationship between Khanyile and Alcock could not be restored, even
though dishonesty on Khanyile was not a consideration in
reaching
this conclusion. It seems his conclusion that the relationship had
broken down was most probably based on his observation
that Alcock’s
pain and anger at having been undermined by Khanyile was palpable.
In deciding on a payment of six months’ compensation as a
suitable alternative remedy, it is obvious that the arbitrator
was
overwhelmingly influenced by his conclusion that the chairperson had
not conducted the internal disciplinary hearing with
sufficient
detachment and had shown himself to be biased in favour of the
employer. The arbitrator concluded his analysis with
the following
statement:
“
I deem fit to express my extreme
discomfort at the matter in which Mr Nash conducted himself by
ordering compensation equivalent
to 6 months wages."
(sic)
The arbitrator's discomfort appears to have stemmed from a number of
factors he identified. Alluding to
De Beers
Consolidated Mines Ltd v Commission for Conciliation
,
Mediation & Arbitration &
others
(2000) 21
ILJ
1051 (LAC), he
concluded that the dismissal was an expression
of the chairperson’s moral outrage rather than a sensible
operational response
to managing risk. The arbitrator also accepted,
without explanation, that Khanyile correctly surmised that her
dismissal was
a foregone conclusion. He further found that it was
not sufficient for Nash to have simply asked Khanyile if she
objected to
him as the chairperson. The arbitrator held that this
seemingly straightforward question was ambiguous because it could
have
referred to him as an individual or in his capacity as
chairperson. He accepted also that since Nash spent an hour in the
boardroom
between his arrival and the commencement of the hearing
that he probably spoke to the complainant, Alcock, during this time.
He found the frequent interventions by Nash and the relatively few
statements by Alcock as indicative of that the chairperson had
descended "into the arena". He held that the tone of the
chairperson’s interventions indicated that the chairperson
had
failed to separate his role as chairperson from his role as
management, such as when he explained to Khanyile how business
operates. Lastly, he criticises the chairperson for phoning the
providers of the course which the applicant attended without
the
parties being present and without advising them that he intended to
do so. The arbitrator found that Nash had failed to provide
Khanyile
with an opportunity to present mitigating evidence before he
dismissed her. Lastly, the arbitrator found Nash’s
instruction
to Khanyile to hand over her laptop as indicative of his management
sympathies.
Consideration of grounds of review
The applicant attacks the arbitrator's reasoning which led him to
conclude that Khanyile’s dismissal was substantively
and
procedurally unfair and claims that his award of six months’
compensation amounted to a misdirection.
On the question of the substantive fairness of the dismissal, the
applicant essentially complains that the arbitrator failed
to
consider that Khanyile’s unauthorised absence was compounded
by her flagrant disregard for Alcock's instruction that
she must
return to work and he should have taken a more serious view of her
misconduct. It has already been mentioned that the
arbitrator was
sympathetic to Khanyile’s view that when she was told halfway
through her absence that her conduct amounted
to a dismissible
offence, she felt entitled to assume that it was a foregone
conclusion that she would be dismissed. It is noteworthy
that
nowhere in his evaluation of the appropriateness of the sanction
does the arbitrator discuss the significance to be attached
to
Khanyile’s decision to continue with the course and to ignore
the direct and unequivocal instruction to return to work.
This was a material factor in considering the seriousness of her
misconduct, but he failed to deal with it, whereas he placed
significant value on the fact that the applicant had applied for
leave in order to attend the course in her own time. In giving
weight to the latter consideration the arbitrator appears to have
accepted Khanyile's version that the course would have helped
her in
the performance of their duties despite evidence that counselling of
employees on HIV and AIDS was not part of her functions
and was
normally conducted under the auspices of the firm's Wellness
Program. No reasons are provided by the arbitrator why he
simply
accepted the relevance attached to the course by Khanyile rather
than relevance attached to it by the company.
I am satisfied that had the arbitrator considered Khanyile’s
behaviour after being told to return to work ,he could not
have
found that dismissal was an inappropriate sanction. Accordingly, his
finding of substantive unfairness must be set aside.
In attacking the arbitrator's assessment of the
procedural unfairness of the internal hearing, the applicant rightly
criticises
the formalistic approach adopted by him in certain
respects. Thus, item 4 (1) of schedule 8 to the Labour Relations Act
66 of
1995 (‘the LRA’) specifies that the employer ought
to conduct an investigation to determine if there are grounds for
dismissal, which does not have to be a formal enquiry. It is some
years since this court set out the less stringent procedural
requirements envisaged for fair internal enquiries in
Avril
Elizabeth Home for the Mentally Handicapped v CCMA & others
(2006)
27 ILJ 1644 (LC)
at 1653, viz:
“
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 are 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.
...
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.”
In this instance, the arbitrator does not appear to have considered
the standard of procedural fairness required by the LRA in
criticising some of the chairperson’s conduct. For example,
the investigative character of an internal enquiry does not
require
a chairperson to assume an aloof stance during the elicitation of
evidence. There is nothing in principle untoward about
a chairperson
probing statements made by witnesses or pursuing a line of enquiry
with a witness in an attempt to get to the bottom
of a relevant
factual issue. Similarly, if the chairperson is of the view that it
would assist in the investigation to obtain
additional evidence,
there is nothing inherently unfair about the chairperson taking
steps to obtain that evidence, provided
the accused employee is
given an adequate opportunity to deal with the same.
In this enquiry the information from the training provider was
obtained during a break in the enquiry and the chairperson advised
Alcock and Khanyile of what he had found out in their absence when
the enquiry resumed. He had not indicated when the hearing
adjourned
that he was going to make this enquiry during the break. The enquiry
was made telephonically and there is no reason
why this could not
have been done while the hearing was in session to give Khanyile an
opportunity to hear first-hand what the
training provider’s
spokesperson said and to pose her own questions if she wished. Thus,
even though the chairperson’s
enquiries might have been
justified as a legitimate issues for investigation, there was no
justification for doing it in the
absence of Khanyile thereby
depriving her of an opportunity to deal with it on an equal footing
with the employer.
It is also necessary to remember that the enquiry takes place as
part of the employer’s disciplinary process, which is
a tool
for correcting misconduct where possible. This is expressed in the
concept of progressive discipline described in item
3(2) of Schedule
8 of the LRA:
“
The courts have endorsed the concept of
corrective or progressive discipline. This approach regards the
purpose of discipline as
a means for employees to know and understand
what standards are required of them. Efforts should be made to
correct employees'
behaviour through a system of graduated
disciplinary measures such as counselling and warnings.”
Landman, J (as he then was) in
Country Fair v Commission For
Conciliation, Mediation & Arbitration & Others
(1998) 19
ILJ
815 (LC)
described a key
attribute of progressive discipline in the following terms:
“
Progressive discipline acknowledges that
the goal of discipline in the workplace is primarily, but not
exclusively, geared to the
reform or the rehabilitation of the
offending employee.”
After Khanyile had explained that she believed the opening to attend
the course was an unforeseen opportunity and she might not
be able
to attend the program again and after she had defended her failure
to hand over her duties properly on the basis that
staff had
previously gone off without prior authorisation, the chairperson
addressed her as follows:
"You are missing the whole business point here. We're talking
about business on how to run a business. The most important thing
the
one that Friday was not going on the course. It was to look after the
interest of the company. To speak to your manager and
wait for her to
give the green light to go on leave. Then to hand over. Because going
on that course, until Alcock give the green
light you're not going.
That is how it works. First thing would have been speaking to Alcock.
Second thing would be to sort out
your clients and third thing would
have been to hand over to your colleagues and then start thinking
about the course...”
(
sic
).
It appears that the chairperson was trying to explain to Khanyile
why she could not simply follow the dictates of her personal
priorities and why that could not justify her taking leave without
giving proper notice to the employer. This intervention by
the
chairperson was not out of keeping in the context of a disciplinary
enquiry.
The arbitrator concluded that Nash had probably discussed the case
with Alcock in the boardroom before the hearing commenced.
Nash was
the only witness who gave evidence on what transpired. He said that
Alcock had come to boardroom to meet him and they
exchanged
greetings, chatted about business and their respective offices. He
denied discussing the hearing with her.
While their presence alone together in the boardroom could have
given rise to a reasonable suspicion that they might have discussed
the matter, the difficulty I have is that this proposition was not
put to Nash or Alcock either directly or indirectly, and Khanyile
did not even testify on this. Before the arbitrator reached the firm
conclusion that Nash had acted improperly it should at least
have
been an issue that Alcock and Nash were tested on and Khanyile ought
to have given evidence of why she formed her suspicion.
In the
circumstances, there was insufficient evidence for the arbitrator to
make an adverse finding on this question.
On the question of whether or not Khanyile had an opportunity to
present mitigating evidence before a sanction was pronounced,
it is
clear that the chairperson did say after pronouncing that he found
Khanyile guilty on both charges, that both parties should
bring
anything to the table that they felt was important before he made a
decision on the penalty. Even though he might have
expanded on what
he meant, it is apparent from Khanyile's response to that invitation
that she understood him to be inviting
her to mitigate her
misconduct, because she then proceeded to explain why she felt the
course was relevant to her work and could
be of benefit to the
company.
In summary, the arbitrator’s findings on procedural fairness
were in part derived from a misdirection on his part on the
appropriate standard of procedural fairness to apply and partly from
plainly ignoring the evidence. The only material finding
of
procedural unfairness was soliciting evidence from the training
provider in the absence of Khanyile when there was no good
reason
for doing so. Thus even though this indicated an element of
procedural unfairness, the gravity of the unfairness was much
less
serious than the arbitrator believed, and the evidence cannot
reasonably support his strong conclusions in this regard.
This has a direct bearing on the reasonableness of the relief he
awarded Khanyile in the form of half a year’s salary.
Substitution of remedy
It is clear that the extreme discomfort felt by the arbitrator over
the conduct of the enquiry was not justified, and that the
enquiry
was not conducted in an unfair manner, apart from the exclusion of
Khanyile from the enquiries made of the course provider.
Consequently, the award of compensation which was significantly
affected by his view on the gravity of the procedural unfairness
cannot be considered reasonable and needs to be adjusted.
Having regard to the more limited extent of the procedural
unfairness of the enquiry and the fact that the finding of the
substantive
fairness of the dismissal must be set aside, the award
of compensation is reduced to one and a half month’s
compensation.
Order
The finding of the third respondent in his award dated 18 November
2010, issued under CCMA case number KNPM 2817-10, that the
first
respondent’s dismissal was substantively unfair is set aside
and substituted with a finding that her dismissal was
substantively
fair.
The third respondent’s award of compensation of six months’
remuneration is set aside and substituted with an order
that the
applicant must pay the first respondent an amount of one and a half
month’s remuneration, equivalent to eighteen
thousand rands (R
18,000-00) within 30 days of the date of this judgment.
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: A J Hamilton of Hamilton attorneys
FIRST RESPONDENT: J T Dladla of S.F Mkhwanazi & Associates