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[2014] ZALCJHB 155
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Dorrainn Bailiff Investments (Pty) Ltd t/a Linksfield Pharmacy v Commission For Conciliation Mediation And Arbitration and Others (JR86/2011) [2014] ZALCJHB 155 (6 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: JR86/2011
In
the matter between:
DORRAINN
BAILIFF INVESTMENTS (PTY) LTD
t/a
LINKSFIELD
PHARMACY
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER
LANCE CILLIER
N.O Second
Respondent
EMMANUEL
MUFUNWAINI Third
Respondent
Heard:
2 July 2013
Delivered:
6 May 2014
Summary: Adjudication
of an Application in Terms of
Section 145
of the
Labour Relations
Act, 66 of 1995
.
JUDGMENT
MANCHU
AJ
Introduction
[1]
In this review, the record of the proceedings of the CCMA is short
and the facts involved are largely common cause. Briefly
stated the
facts are as follows.
[2]
The Third Respondent was employed by the Applicant as a driver of a
motor vehicle since 2003.
[3]
In 2010, the Applicant’s operational requirements dictated that
the Third Respondent should move from driving a motor
vehicle to
riding a motorbike. The Third Respondent was instructed to learn to
ride a motorbike and acquire a motorbike licence.
[4]
It appears that the Third Respondent took a period of almost six
months before acquiring a learner licence to ride a motorbike.
From
my reading of the record, it is suggested that the Third Respondent
was, after obtaining a learner licence, legally permitted
to man a
motorbike but he did not have the necessary skill and practical
experience to ride a motorbike.
[5]
On Wednesday 28 July 2010, the Applicant handed the Third Respondent
R800.00 and instructed him to attend five lessons over
the period
Thursday 29 July to saturday 31 July. The Third Respondent would have
to attend two lessons on at least two days for
him to be able to
attend the five lessons in the three days.
[6]
It is common cause that the Third Respondent was not able to secure
five lessons over the three days. It is also common cause
that the
Third Respondent sought to advise the Applicant, by sending a “call
back” test message, that he was unable
to secure the five
lessons in the three dates. The “call back” text was sent
on Wednesday 28 July 2010.
[7]
The Applicant contacted the Third Respondent on Monday 2 August 2010
to enquire why he had not arrived at work, to which the
Third
Respondent responded that he was unable to attend work because he had
scheduled ‘riding’ lessons for Monday 2
August to Tuesday
3 August.
[8]
At a disciplinary enquiry, the Applicant brought charges against the
Third Respondent alleging that the Third Respondent had,
inter
alia
, failed to follow company procedure by not informing his
employer of his inability to attend work and that he had shouted and
swore
at his employer.
[9]
At a hearing before the First Respondent, the Second Respondent (the
Commissioner), found that the Applicant’s conduct
viewed
holistically did not justify dismissal.
The
applicant’s grounds of review
[10]
The grounds of review relied on by the Applicant are largely directed
at the Second Respondent’s findings on whether
dismissal was an
appropriate sanction in the circumstances.
[11]
The Applicant’s heads of argument attack the Second
Respondent’s findings on the charge that the Third Respondent
shouted and swore at his employer. The attack was mostly directed at
paragraph 18 of the award.
[12]
In paragraph18 of the award, the Second Respondent found as follows:
‘
The
applicant’s telephone manner that Wednesday could indicate his
repudiation of his duty to show respect to his employer.
The gravity
of this disrespect would surely reflect on factors which includes the
action of the employer prior to the outburst.
Disrespect to an
employer justifies termination of the employment relationship only
when it is so gross (i.e; insulting and abusive)
or so frequent as to
suggest that the employee has repudiated the employers lawful
authority. I cannot and will not endeavour to
justify the applicant’s
outburst. However, I am compelled to consider the fact that the
employer’s unfair and unlawful
behaviour of withholding a
month’s salary from the applicant caused him severe duress and
embarrassment and trigerred his
unacceptable conduct. Although guilty
of misconduct these mitigating factors ought to soften an instinctive
reaction to dismiss
an employee.’
[13]
The Applicant argued that the decision of the Second Respondent that
“the employees dismissal was too harsh is unreasonable
in that
he failed to properly consider the totality of relevant factors”.
The Second Respondent’s task, so it is argued,
was to assess
whether the Applicant’s decision to dismiss was fair and not to
substitute the sanction with one he deemed
appropriate and to decide
whether the misconduct was perpetrated, and then decide on the
fairness of the sanction of the dismissal.
[14]
It appears from a reading of the award that the Second Respondent did
follow this approach. The Second Respondent found that
the misconduct
had been committed, and that the Third Respondent had shouted and
swore at his employer, but he found that dismissal
for this reason,
in the circumstances, was unfair.
[15]
Furthermore, the Second Respondent did consider the “totality
of relevant factors”. Firstly, he noted that disrespect
to an
employer justifies termination of the employment relationship only
when it is either so gross (i.e. insulting and abusive)
or so
frequent so as to suggest that the employee has repudiated the
employer’s lawful authority.
[16]
Secondly, he considered the circumstances in which the outburst was
made; that the outburst was attributed to the Third Respondent’s
severe financial duress and embarrassment that had been brought by
the Applicant witholding the Third Respondent’s salary.
[17]
In my view, the Second Respondent considered all the evidence before
him prior to deciding that dismissal was in the circumstances
unfair.
The Second Respondent said this in paragraph 19 of his award, wherein
he said that “Despite the valid final warning
on record, I must
find that the Applicant’s conduct viewed holistically does not
justify dismissal. I must thus find that
the sanction of dismissal
was too harsh under the circumstances.”
[18]
Even if the Second Respondent did substitute the sanction with one
that he deemed appropriate, this would not constitute a
sufficient
ground of review.
[1]
[19]
It was further argued that the Second Respondent acted unreasonably
by finding that the alleged non-payment of the July salary
was unfair
and that he attached too much weight to it as a mitigating factor.
[20]
Although the Second Respondent made reference to the issue of the
non-payment of the July salary, its relevance is only in
respect of
the circumstances prevailing at the time that the Third Respondent
had the outburst. In other words, it is relevant
because it gives
background facts of what led to the Third Respondent’s
outbursts.
[21]
The Second Respondent did not concern himself with the fairness of
the non payment. In fact, the Second Respondent expressly
said that
this it is not an issue before him.
[22]
The charge of the Third Respondent’s failure to attend work is
also the subject of this review.
[23]
The Second Respondent found that he accepted the Third Respondent’s
submission that he was told to stay home until he
knew how to ride a
motor bike.
[24]
In his award, the Second Respondent considered that the Third
Respondent attempted to contact the Applicant, in the usual manner
at
the workplace, to advice the Applicant that he had not been able to
secure the agreed dates and he would attend lessons the
following
week and would not be attending work. Furthermore, the Second
Respondent considered that the Third Respondent did not
perform any
gainful work, from about March 2010, because there was no car for him
to drive and he could not ride a motorbike, and
that reporting to
work under those circumstances would have served no purpose at all.
[25]
The Second Respondent was faced with two versions concerning the
events of Monday to Wednesday and he was persuaded by the
Third
Respondent’s version. In my view, it cannot be said that his
decision is unreasonble or that it warrants interference.
Conclusion
[26]
The Second Respondent’s award does not warrant interference. I
am not persuaded that his decision does not fall with
the bands of
reasonableness.
[27]
In the premises, the review is dismissed with costs.
________________________
Manchu AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
FOR
THE APPLICANT: Advocate
Wilhelm
P Bekker
Instructed by Nothnagel
Attorneys
FOR
THE RESPONDENTS: Unknown
Instructed
by Stan Fanaroff & Associates
[1]
See
Lithotech
Manufacturing Cape, A division of Bidpaper Plus (Pty) Ltd v
Statutory Council Printing, Newspaper & Packaging Industries
and
Others
[2010]
6 BLLR 652
(LC), at para 25 where the court found that although it
considered that “
an
arbitrator cannot find an employee guilty on a lesser charge, I am,
despite of this defect in the award not persuaded that
the award
cannot stand.”