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[2014] ZALCJHB 94
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Famous Brands Management Company (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR2616/12) [2014] ZALCJHB 94 (25 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,IN JOHANNESBURG
JUDGMENT
Of
interest to other judges
Case
no: JR 2616/12
In
the matter between:
FAMOUS
BRANDS MANAGEMENT COMPANY (PTY) LTD
Applicant
and
THE
COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION
First
Respondent
MARINA
TERBLANCHE
N.O.
Second
Respondent
CUSA
obo BONGANI STANLEY MADONDO
Third
Respondent
Heard:
14 March 2014
Delivered:
25 March 2014
Summary:
(Review-findings not ones that a reasonable arbitrator could have
reached on the evidence).
REASONS
FOR JUDGMENT
LAGRANGE,
J
Background
[1]
Judgment in this matter was handed down on
25 March 2014. The reasons for the judgment and the order made are
set out below.
[2]
This is an application to review an
arbitration award dated 18 September 2012 in terms of which the
arbitrator (the second respondent)
found that the dismissal of Mr B S
Madondo (the third respondent) was substantively and procedurally
unfair and ordered his retrospective
reinstatement with backpay.
[3]
The third respondent was charged and
dismissed for gross insubordination for going on leave on 26 June
2012 without authorisation.
It was common cause on the evidence that
on that date, the applicant was refused permission to go on annual
leave from the following
day. Two witnesses of the employer testified
that when the third respondent was informed on that day that his
application for annual
leave had been refused by the Depot Manager,
Ms Coetzer, his response was that he was going on leave regardless.
Both witnesses
also testified that Madondon had said he would not be
at work for the rest of the week. On the applicant's version he
denied saying
this but admitted only that he questioned why there was
always a problem when he applied for leave. However, this version was
not
put to either of these witnesses under cross-examination.
[4]
When the applicant gave his evidence in
chief he explained that on 26 June 2012, he had gone to the
distribution and warehouse manager,
one Marius, to say that he had
put in an application for leave on the basis that if school closed at
Friday he wanted to go on
leave the following week. He alleges Marius
agreed to this even though he told him that he did not know when the
schools were closing.
He further testified that towards the end of
the day he was approached by Marius who asked him if his need to go
on the leave was
so serious. He continued:
"I told Marius,
Marius you know we black people have traditions that we have to
follow. When the time was set to go on that
time you cannot change
it. But he said okay I will come back to you. And then about past
16:00 we were busy loading the track and
I told Marius I do not feel
so well. He said are you all right? Can you proceed? I said no will
proceed and then about before knockoff
time she told me Stanley go to
Elsa and tell else I say you can go on leave."
[5]
Mr Madondo further claimed that he relayed
Marius’s endorsement to the HR Administrator Ms Boshoff, but
was advised that his
leave was not approved. He claimed that he
queried why his leave was not approved because he had told the
distribution manager
when he came with the leave plan that he wanted
to go on leave if the school closed that week. He said that the next
day he woke
up not feeling well as he had advised his supervisor
Marius. He faxed the doctor's certificate to work but had forgotten
his cell
phone at home. As with other elements of his defence, this
evidence, apparently intended to explain why he had not responded to
Coetzer’s two calls that morning, was never put to Coetzer in
cross-examination.
[6]
Under cross-examination he agreed that he
had been warned by Boshoff administrator that he would be in trouble
if he went on leave
when it had been declined, but said he had felt
ill the following day when he woke up and he had already indicated he
was not feeling
well to his supervisor Marius on 26 June 2012.
According to his evidence he did not anticipate staying away but fell
ill and was
booked off.
[7]
The Depot manager, Ms A Coetzer, confirmed
her written statement that she declined his leave application because
three crew members
were already on leave. After instructing Boshoff
to notify him that the leave had been declined she was phoned a few
minutes later
to say that the third respondent said he was going on
leave regardless of whether he had authorisation to or not. When she
enquired
the following day whether he had come into work she was told
that he had not and also that he had not been scheduled to accompany
a truck on that day because he had told his supervisor that he would
not be coming in for the rest of the week. She further testified
that
she phoned him twice that morning that he did not answer the call or
make contact with her. Madondo did not dispute that he
had told
Marius he would not be coming in, nor did he dispute that he had made
an arrangement for a replacement to take over his
duties on 27 June
2012.
[8]
When Madondo did not arrive again on Monday, Coetzer notified him via
SMS that he was currently not on authorised leave as his
leave was
declined and that leave for the first week of July had not been
authorised. Her evidence was that when he reported for
work the
following day he was served with the notice to attend the enquiry, he
said that he had wanted to leave for the previous
week but did not
know what the date was and then it was put incorrectly on the leave
plan. It seems what Madondo was trying to
convey was that he still
believed he was entitled to take leave but that it had not been
correctly entered on the leave planner.
Again, Madondo did not
challenge Coetzer’s evidence in this regard.
[9]
Coetzer also confirmed that at no point
when the application for leave was made did Madondo mention that he
was ill. She further
confirmed that the charge concerned the fact
that he refused to accept the decision she had made to decline his
leave.
[10]
She further emphasised that the third
respondent was not charged for being on sick leave but for not
accepting the instruction refusing
him leave. She reasoned that if he
did not know that he would be sick, the only conclusion to draw from
his actions on 26 June
in telling his supervisor he would not be in
for the rest of the week and even arranging another van assistant to
do his job the
following day, was that he intended to take his leave
despite it being declined. Coetzer further emphasised that the fact
that
the sick note only covered the period ending 29 June 2012 was a
further indication that he refused to accept the decision declining
his leave because he only returned to work on 3 July 2012.
[11]
It is further common cause that on 27 June
2012 the third respondent faxed a medical certificate issued by one
Dr WJ Jacobs on the
same day to the effect that he was suffering from
what appears from the handwriting on the certificate to be “backache
and
dermatitis”. It is unclear from the cryptic marks on the
certificate supposedly made by the doctor if he was recording his
own
professional assessment or simply recording what the third respondent
told him when he stated that the applicant "was
unfit" for
work for the period 27 June up to and including 29 June 2012.
[12]
The third respondent only reported for work
again on Tuesday 3 July 2012 even though the period of anticipated
incapacity in the
medical certificate should ended the previous
Friday. Eleven months earlier, the third respondent had been issued
with a final
written warning for insubordination for refusing to
follow instructions and turning his back while discussing a matter.
The warning
was still valid at the time the third respondent was
dismissed.
[13]
At the arbitration hearing the only issue
of alleged procedural unfairness raised by the third respondent’s
representative
was that the chairperson of the disciplinary enquiry
regarded the information about the third respondent's illness as
irrelevant
when he should have applied his mind to it. The arbitrator
confirmed her understanding that the challenge to the fairness of the
procedure of the disciplinary enquiry concerned what information the
chairperson did or did not consider but then concluded that
the
alleged unfairness was essentially a claim of bias.
The
arbitrator’s award
[14]
The arbitrator analysed the fairness of the
third respondent's dismissal using the guidelines in item 7 of
schedule 8 to the Labour
Relations Act 66 and 1995 ('the LRA’).
On the issue of substantive fairness, the crux of the arbitrator’s
reasoning
concerned whether or not the third respondent had
contravened a rule of the workplace.
[15]
Firstly, the arbitrator declared herself
unsure as to whether the charge of insubordination against the third
respondent was because
he actually took leave despite his application
been declined or because he said he was going to take leave
regardless of his leave
application being declined. She reasoned that
if it was the former then he did not actually take leave in defiance
of the instruction
not to because he had a valid medical certificate,
which the employer did not challenge. On the other hand, if it was
the latter,
his defiant utterance to the HR administrator that he
would take his leave regardless of being refused permission did not
constitute
insubordination because it was not made to the person
issuing the instruction, namely Ms Coetzer. In passing it should be
mentioned
that the third respondent himself did not raise a challenge
that the charge was ambiguous. In essence, his defence was that he
was not insubordinate because he was absent on account of ill health.
Similarly, neither was it part of his defence that he could
not have
been insubordinate because his defiance of Coetzer was not conveyed
to her directly.
[16]
Secondly, the arbitrator found that the
respondent had not proved that he had actually followed through on
this intention because
of the valid medical certificate. She
dismissed the evidence that he had intended to defy the instruction
as being merely being
‘circumstantial’.
[17]
The arbitrator concluded that the
employer’s case was based on a suspicion that the third
respondent was not really ill and
that the medical certificate was
simply a ruse to obtain the time off which he had failed to get
approved as annual leave. The
arbitrator reasoned that if the
employer wished to question the applicant's intention it ought to
have gone a step further and
challenged the validity of the medical
certificate.
[18]
Consequently, the employer had failed to
prove that the applicant was intentionally subordinate by taking
leave when it had been
declined. In fact he never took the leave but
was booked off ill and the medical certificate stood as unchallenged
proof of his
illness.
[19]
Turning to the question of procedural
fairness, the arbitrator decided that this issue concerned bias and a
lack of objectivity
on the part of the chairperson. The arbitrator
concluded that the respondent had failed to discharge the onus of
proving that the
chairperson was fair in applying his mind. In order
to prove this, the applicant should have called the chairperson of
the enquiry
to “rebut” the allegation of bias.
Evaluation
[20]
The applicant raised a number of
grounds of review relating to the arbitrator’s alleged failure
to apply her mind to the evidence
and alleged lack of rationality in
her award.
[21]
In
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013]
11 BLLR 1074
(SCA)
the SCA said
the following of the reasonableness review test laid down in
Sidumo
v Rustenburg Platinum Mines Ltd
2008 (2) SA 24
(CC)
:
[12]
......That test involves the reviewing court examining the merits of
the case “in the round” by determining whether,
in the
light of the issue raised by the dispute under arbitration, the
outcome reached by the arbitrator was not one that could
reasonably
be reached on the evidence and other material properly before the
arbitrator.
On
this approach the reasoning of the arbitrator assumes less importance
than it does on the SCA test, where a flaw in the reasons
results in
the award being set aside. The reasons are still considered in order
to see how the arbitrator reached the result. That
assists the court
to determine whether that result can reasonably be reached by that
route. If not, however, the court must still
consider whether, apart
from those reasons, the result is one a reasonable decision-maker
could reach in the light of the issues
and the evidence
.”
[1]
(emphasis
added)
Further
on in the judgment the SCA stated:
“
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator.
Material
errors of fact, as well as the weight and relevance to be attached to
particular facts, are not in and of themselves sufficient
for an
award to be set aside, but are only of any consequence if their
effect is to render the outcome unreasonable
.”
[2]
[22]
These dicta determine the framework within
which the applicant’s review grounds must be evaluated.
Finding
on procedural fairness
[23]
Turning to the arbitrator’s finding
of procedural unfairness, the applicant complains that she accepted a
mere allegation
that the commissioner was biased without any evidence
being led to this effect. The only evidence the applicant sought to
adduce
was evidence to the effect that the chairperson of the enquiry
did not apply his mind to the matter. It seems the arbitrator was
of
the view that the chairperson ought to have testified on this issue.
However, no specific allegation was put in cross-examination
to any
of the applicant’s witnesses in the enquiry about the way in
which the chairperson’s alleged bias was demonstrated.
If the
third respondent’s complaint was about whether the chairperson
accepted the evidence of the medical certificate as
a valid defence
to the charge, which is what appears to be the third respondent’s
main complaint of about the chairperson’s
handling of the
enquiry, this was actually not an issue going to the procedural
fairness, but rather concerns the substantive fairness
of the
dismissal, because it is really an attack on the correctness of the
chairperson’s findings Moreover, the applicant
did lead
evidence that the third respondent had confirmed he had been advised
of all his rights before the hearing. This was not
disputed by him,
nor did he suggest any procedural flaws in the way the proceedings
were conducted that were indicative of bias.
On any reasonable
interpretation of the evidence, there was nothing to support a
finding that the chairperson acted procedurally
unfairly in the
conduct of the enquiry. The arbitrator seems to have been of the view
that the applicant was obliged to canvass
every aspect of procedure
to show that it had been fair. What the applicant did was to
establish a
prima facie
case of procedural fairness. It was then for the third respondent to
attack that version in cross-examination and by leading his
own
evidence on the alleged shortcomings of the enquiry. Failing that,
the
prima facie
evidence hardens into proof of procedural regularity on a balance of
probabilities. The third respondent did not launch any
significant attack against the fairness of the disciplinary
procedure. The mere allegation of procedural impropriety based on a
criticism more akin to a ground of appeal on the merits of the
chairperson’s finding, was a wholly insufficient basis for
the
arbitrator’s finding on procedural fairness, which appears to
have been an argument developed more by the arbitrator
herself than
the third respondent.
Finding
on substantive fairness
[24]
Was the arbitrator unreasonable in her
reasoning on substantive unfairness? The thrust of the applicant’s
attack on the arbitrator’s
findings on this issue, is that the
arbitrator accepted the third respondent’s version, namely that
he was not wilfully disobeying
an instruction he could not take
leave, without giving any weight to the evidence that he had no
intention of obeying it and that,
on the contrary, his actions
plainly demonstrated that intention.
[25]
The applicant argued that there was ample
evidence of the third respondent’s insubordination, which was
not materially disputed,
but the arbitrator focussed narrowly on the
medical justification of three days of his absence, which in her view
was enough to
disprove an insubordinate intent, or that his absence
from work was evidence of him carrying through his threat of defying
the
refusal to grant him leave. On any analysis, it seems the
arbitrator regarded the medical certificate as dispositive of the
question
whether insubordination was in fact committed. The question
that must be asked is whether the arbitrator’s emphasis on the
significance of the medical certificate was such that it rendered her
conclusion unreasonable, on any plausible interpretation
of the
evidence before her.
[26]
As
the applicant points out the essential characteristic of
insubordination is conduct by an employee which demonstrates an
intention
to defy the employer’s authority.
[3]
The arbitrator appears to have accepted that the third respondent did
clearly state his intention to disregard the refusal of his
leave
application to Ms Boshoff, who was conveying the instruction of the
Depot Manager, Ms Coetzer and that this statement of
defiance
occurred in the presence of another employee, Ms Schropfer, who
shared Boshoff’s office. The arbitrator seeks to
avoid the
implications of this indisputable conduct by introducing her own
requirement for proving an insubordinate act: that because
he
expressed his intention to defy Coetzer’s decision to a third
person in the form of Boshoff and not to Coetzer directly
his action
did not amount to an act of insubordination. The fact that he did not
express his intention to defy a superior’s
decision to her in
person, but to her subordinate intermediary, cannot by any stretch of
imagination rob his act of its insubordinate
character. If anything,
it aggravated the gravity of the insubordination because he expressed
his defiance in the presence of other
subordinates rather than in
private to Coetzer.
[27]
The second device the arbitrator relies on
is to find that another pre-requisite for proving insubordination is
whether the employee
follows through on the act of defiance by
fulfilling his threat. The first difficulty with this, is that the
third respondent’s
conduct on 26 June 2012, was itself an
unequivocal act signifying an intention to defy the Depot manager’s
authority not
only to her, through Boshoff, but also to her
subordinates.
[28]
The arbitrator was unreasonable in
effectively insisting that the employer also had to prove that
Madondo did not waiver in his
resolve to defy the leave decision as
time passed by. It simply does not follow that if an employee later
changes their mind and
complies with an instruction, that their
initial refusal to accept the instruction then evaporates as if it
was conduct that never
occurred. The duration of an employee’s
defiance is a matter which concerns the continuation of the
insubordination not whether
the employee was guilty of
insubordination at all. It is possible the arbitrator might have
conflated what are normally considered
elements of gross
insubordination that might justify dismissal for a first offence,
with ordinary insubordination. In this regard,
it has been held that
gross insubordination occurs when the defiance is serious, persistent
and deliberate. .
[29]
The third respondent’s defence was
that he had not been insubordinate because he was absent because he
was ill. On his argument,
the fact that he plainly stated he would
not respect the Depot manager’s decision did not amount to
insubordination at all.
This defence does not rely on the extended
conception of persistent defiance as a pre-requisite for proving
insubordination that
features in the arbitrator’s reasoning..
[30]
Even if a continuing intent was a
pre-requisite for proving insubordinate conduct, by focussing
exclusively on the medical certificate
as the sole explanation for
the third respondent’s subsequent absence from work from 27
June 2012, the arbitrator failed
to consider the fact that he
provided no other coherent reason for his continued absence on 2 July
2012, which was after the period
of incapacity indicated in the
medical certificate. All the third respondent provided by way of
explanation was a somewhat garbled
explanation suggesting he was
confused about whether he was on leave or not. It is noteworthy that
he offered this explanation,
which is more in line with someone who
believed he was wrongly deprived of his leave, than an explanation
that he had not recovered.
[31]
Further, the arbitrator completely ignored
the uncontested, albeit hearsay evidence of Coetzer that the third
respondent had made
an arrangement for someone else to take on his
duties as a van assistant on 27 June 2012 and he had not been
assigned to any vehicle
for that day. The third respondent never
disputed that he had made such arrangements nor that he was not
assigned duties for that
day. It is difficult to escape the inference
that he had made such arrangements in advance because he had no
intention of coming
to work on 27 June 2012, and when he woke up that
morning to find himself stricken with backache and dermatitis, this
simply provided
him with a reason for not going to work which he
previously lacked. But his steps the day before clearly indicated
that in all
probability he would not have come in even if he had not
fallen ill. . It is noteworthy that nowhere in his own evidence did
the
third respondent suggest that between the time he was told his
leave had been refused on 26 June and before he woke feeling ill
the
next morning, he had decided to report for work despite his
utterances to the contrary made to Boshoff. There was no evidence
before the arbitrator to support an inference that it was reasonably
possible he would have recanted on his stated intention to
ignore the
refusal of his leave application, but for the fact that he fell ill.
His conduct before the onset of his illness was
consistent with
someone who intended to make good his assertion that he would stay
away despite his leave being refused. However,
the arbitrator simply
relegated evidence of this to the category ‘circumstantial
evidence’, which she seemingly believed
did not warrant
consideration.
[32]
It should also be mentioned that no attempt
was made to contradict Boshoff and Schropfer’sevidence about
what the third respondent
said on 26 June. It was not put to them
that the third respondent had reported any feeling of illness, nor
that Marius had endorsed
him being absent. The third respondent also
never disputed that he had told Marius he would not be at work the
rest of the week.
[33]
In the circumstances, the arbitrator’s
conclusion that the applicant failed to prove the third respondent
was insubordinate
was an unreasonable one that cannot be plausibly
supported on the evidence and must be set aside together with the
finding that
the dismissal was procedurally unfair.
Substitution
[34]
For the reasons which are apparent in the
analysis above, it is more probable than not that the third
respondent did demonstrate
open defiance towards the Depot Manager by
stating he would go on leave regardless of her decision to refuse it,
and it is also
probable that the fact he might have fallen ill would
not have altered that resolve. In any event, his act of defiance on
26 June
2012 was a serious challenge to the Depot Manager’s
authority and was expressed to other subordinates. The third
respondent
already had a final written warning for insubordination
toward the same manager which was still current. I think, in the
circumstances
that it was not unfair of the applicant to have
dismissed the third respondent.
Order
[35]
The second respondent’s findings in
her arbitration award dated 18 September 2012 under case number FS
4655-12 that the third
respondent’s dismissal was procedurally
and substantively unfair are reviewed and set aside and substituted
with findings
that his dismissal was substantively and procedurally
fair.
[36]
The further consequential relief awarded in
paragraphs [2] and [3] on page 7 of the award is also reviewed and
set aside.
[37]
No order is made as to costs.
__________________
R
G LAGRANGE, J
Judge
of the Labour Court
For
the Applicant: W Hutchinson instructed by Fluxman’s Inc.
For
the Third Respondent: R K Mashego of Mashego Attorneys Inc.
[1]
1080
at
para
[12]. This
approach
had previously been endorsed by the LAC in
Fidelity
Cash Management Service v Commission for Concili
at
ion,
Mediation & Arbitration & others
(2008)
29
ILJ
964 (LAC)
where
Zondo JP said, at 997, para [102]:
“
In
many cases
the reasons which the
commissioner gives for his decision, finding or award will play a
role in the subsequent assessment of whether
or not such decision or
C finding is one that a reasonable decision maker could or could not
reach. However, other reasons upon
which the commissioner did not
rely to support his or her decision or finding but which can render
the decision reasonable or
unreasonable can be taken into account.
This would clearly be the case where the
commissioner gives reasons A, B and C in his or her award but, when
one looks at the
evidence and other material that was legitimately
before him or her, one finds that there were reasons D, E and F upon
which
he did not rely but could have relied which are enough to
sustain the decision.”
[2]
1084
at para [25]
[3]
See
Grogan J, Workplace Law, 10 ed (2009) at 218, viz:
.
“
The
test, it seems, is whether the employee intended to challenge the
employer's authority.
Insubordination
is a more serious offence than mere rudeness
because it presupposes a calculated breach by the employee of the
duty to obey the
employer's instructions.”