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[2015] ZALCJHB 49
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Rheinmetall Denel Munition (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others (C 528/13) [2015] ZALCJHB 49; [2015] 6 BLLR 633 (LC); (2015) 36 ILJ 2117 (LC) (24 February 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA,
IN JOHANNESBURG
CASE NO: C 528/13
DATE: 24 FEBRUARY 2015
In the matter between:
RHEINMETALL DENEL MUNITION (PTY)
LTD
.............................................................
Applicant
And
NATIONAL BARGAINING COUNCIL FOR THE
CHEMICAL INDUSTRY
.....
First Respondent
J LE F PIENAAR
(N.O.)
..........................................................................................
Second
Respondent
AKHILE
NOMBANDE
..............................................................................................
Third
Respondent
Heard: 20 May 2014
Delivered: 24 February 2015
Summary: (Review – dismissal –
finding of dishonesty irrational – failure to appreciate
seriousness of later misconduct
not rational – failure to
consider the fairness of the dismissal in the light of the code of
good practice – failure
to consider the nature of the post and
the reason for the candidates appointment when deciding on the
appropriate sanction resulting
in irrational outcome).
JUDGMENT
LAGRANGE, J
Introduction
[1] On 17 September 2012, third
respondent, Ms A Nombande (‘Nombande’), was appointed on
a six-month probationary period
as the personal assistant to the
General Manager: Human Relations of the applicant, Ms N Nakedi
(‘Nakedi’). On 11 February
2013 she was dismissed for
dishonesty, poor performance and absenteeism before the probationary
period had expired.
[2] The arbitrator who decided her
unfair dismissal claim found that, even though she was guilty of
failing to perform regular and
lawful instructions and guilty of poor
work performance, the sanction of dismissal was too severe and
ordered her reinstatement
retrospective to the date of her dismissal
with backpay. In relation to a third charge of dishonesty, the
arbitrator found Nombande
not guilty. The applicant seeks to set
aside the award on review.
The award
[3] The charges against Nombande read:
“1. Dishonesty
1.1 The year end function was not
properly organised, and when asked why you did not source proper
assistance, you indicated that
you had asked both Chrisna and Lee.
This was later discovered to be not true.
2. Failure or refusal to perform a
lawful and regular instructions relating to your job
2.1 You were tasked on or about the
first week of December 2012, to close collection boxes at the
reception area for the purpose
of collecting cheque clothes and toys
for charity, you failed to perform the task.
2.2 You were instructed to send
communication to General Management in good time regarding year end
function, you failed to do this
in time.
3. Poor Work Performance
3.1 You were tasked to seek for charity
organisation which could be RDM beneficiaries, you failed to perform
the task within reasonable
and expected time and you only started
task on the last minute after you were reminded.
3.2 You failed to organise the year end
function as expected on 14 December 2012, despite being instructed by
your line manager
to ensure all is organised be all before you leave
on the 13 December 2012.
4. Poor Work Attendance
1.1 You arrived late for duty, and left
early on the 08-01-2013 without any supervisory authority.
1.2. You failed to keep office hours a
few occasions during the period 14 December 2012 to 8 January 2013.”
[4] The disciplinary enquiry found
Nombande not guilty of the complaint about her poor work attendance
and the arbitrator noted
that the applicant conceded that Nombande
was not guilty of irregular attendance on the 18, 19 and 20 December
2012. The arbitrator
noted that Nombande pleaded guilty to the charge
of dishonesty at both the disciplinary and arbitration proceedings.
[5] The arbitrator found that it was
the arrangements concerning the year end function that precipitated
the disciplinary action
taken against Nombande. In the arbitrator’s
evaluation of the evidence, he was clearly of the view that Nakedi
should have
had a greater hand in the arrangements and should not
have left it up to Nombande to manage at relatively short notice. In
the
course of doing ‘damage control’ after the event,
Nakedi had asked Nombande why she had not sought additional
assistance,
in particular from two other staff members who were
referred to in the arbitration only as ‘Chrisna’ and
‘Leah’.
Nombande said that she had done so simply to keep
the general manager, who was furious, quiet. Later it was discovered
that she
had lied about the request for assistance. The arbitrator
found however that this lie did not entail a willingness to cheat,
steal,
lie or act fraudulently nor was there an intention to deceive
on the part of Nombande. He felt that she had answered yes to the
question put to her “under the most stressful circumstances in
an effort to defuse the situation”. Accordingly, the
arbitrator
found her not guilty of the allegation of dishonesty despite her plea
of guilty on this count.
[6] In relation to the charge of being
off duty without authority on 8 January 2013, the arbitrator found
that Nombande was guilty
of this charge. In the course of his
analysis he related the factual circumstances which may be stated
summarily. Nombande had
told her superior that she was going to
assist with registration at a creche in Macassar, which was a
charitable project of the
applicant. However instead of going to the
creche, the applicant had been assisting her cousin, to whom she was
guardian, to register
for a post-matric course.
[7] The arbitrator also decided that
the two charges relating to sending out a communication related to
general management concerning
the year end function and failing to
organise it as instructed before going on leave on 13 December 2012
amounted to the same thing.
The arbitrator found Nombande guilty of
failing to timeously advise general managers to arrange for staff to
be given time off
to attend the year end function.
[8] On the charge of work performance
relating to the identification of a suitable charity to secure the
applicant’s BBBE
rating, the arbitrator found Nombande was not
guilty of this charge because no deadline had been set for completion
of the task
and it had basically been completed by the end of
December 2012. However, the arbitrator agreed that she was guilty of
poor performance
for failing to put out the charity boxes timeously
despite being reminded by Nakedi to do it.
[9] In deciding what an appropriate
sanction would be, the arbitrator had regard to Nombande’s
status as a probationary employee
and considered the matter in the
light of item 8 of schedule 8 -Code of Good Practice: Dismissal
dealing with probation, which
he cited in full. He then summarised
the import of the guideline on probation thus:
“[40] the purpose of probation is
to give the employer an opportunity to evaluate the employee’s
performance before
confirming the appointment (item 8 (1) (b), and in
terms of guideline 8 (1) (j) any person making a decision about the
fairness
of the dismissal of an employee for work performance
(including a decision at arbitration) or to accept reasons for
dismissal that
may be less compelling that would be the case in
dismissals affected after the completion of a probationary period.
These guidelines
provide the opportunity to the employer not to be
burdened to cry on a permanent basis, an employee who cannot does not
provide
satisfactory services. The applicant has been found guilty of
poor work performance, and it has been shown that the applicant is
capable of doing the work she has been employed to do, provided she
gets the required support.”
[10] The arbitrator found that one of
the persons involved in the year end function who had a vital role to
perform in that regard
had been withdrawn from the event at least
with the knowledge of Nombande’s superior and without
Nombande’s consent.
This did not amount to giving her the
required support she could have expected. Secondly, even though
Nakedi had spoken to Nombande
about her shortcomings, there was no
meaningful evaluation instruction and training guidance or
counselling as envisaged in item
8 (1) (e) nor was she invited to
make representations as expected in terms of item 8 (1) (h) of the
code.
[11] In relation to the claim of
dishonesty, the arbitrator noted that in respect of the first
incident he had found Nombande not
guilty of the charge and she had
not been charged with dishonesty in relation to her misleading
explanation of her whereabouts
on 8 January.
[12] The arbitrator concluded that the
approach of the applicant had been to see if Nombande could ‘swim
without sinking’
and had not given her any prior formal warning
for her dismissal. Consequently, he found that the sanction of
dismissal was too
harsh. In considering the appropriate relief, the
arbitrator accepted that even though said she could work with Nakedi,
Nakedi
could not work with her, but that did not mean that Nombande
could not have been placed in another position or some other
administrative
capacity. He therefore ordered her reinstatement but
in the position of a permanent employee of the respondent in a post
other
than secretary to the General Manager: Human Resources.
Grounds of review
[13] The applicant raises a number of
grounds of review claiming in the main that the arbitrator’s
findings are unreasonable,
particularly those relating to the charge
of dishonesty and Nombande’s need for training and guidance.
The attack on the
reasonableness of the arbitrator’s decision
is not merely an attack on his own reasoning, but also an attack on
his failure
to consider other material evidence in reaching his
conclusion. Further, the applicant accuses the arbitrator of
displaying bias
against it in the course of intervening in the
proceedings to advance Nombande’s case. The grounds are set out
in the applicant’s
founding affidavit and it is not necessary
to iterate each one here.
[14] It is apparent from the
arbitrator’s evaluation that he also found that no
investigation was held to establish the reason
for Nombande’s
unsatisfactory performance nor was she invited to make
representations before being dismissed.
Evaluation
[15] On the question of Nombande’s
need for training, although the arbitrator appeared to be aware of
the evidence that she
had “considerable experience in an
administrative capacity and as PA, as well as arranging events such
as mayoral functions,
workshops farewell parties” and although
she acknowledged the evidence of Nakedi that Nombande’s prior
“experience
in the arrangement of functions was a factor which
influenced her appointment as a secretary”, she did not factor
these considerations
into her evaluation of the need for further
training, instruction, guidance and counselling. Furthermore, there
was ample evidence
that
she was regularly told to
improve her
performance and that Nakedi was constantly having to
remind her to do things and complained about her trying to do too
many things
at the same time. During the course of her evidence,
Nakedi said:
“… Before the charges, I
would even call her to my office to say, Akhile I like you. You
presented something to me
in the interview that I have never seen
before. Can you please just improve on your performance because I do
not want to lose you?
I would continuously tell her that, you know
what I like you. I want to keep you. Hence I think I was tolerating
whole lot of things
maybe that he should not have, but I was hoping
that once she gets used to the organisation she was just a bit
confused, because
if you have been a PA before you do not need to be
taught on how a PA should conduct them.” (sic)
Further, as the applicant’s
representative pointed out in closing argument the specific tasks she
had to perform as part of
her duties as a PA were not complex in
nature and hardly required specific training.
[16] The arbitrator’s conclusions
about Nombande’s dishonesty are baffling. Nombande lied about
having approached the
two other employees for help. Nakedi then
chastised at least one of them for not responding to the call for
help as a result of
this misrepresentation. When Nombande was
cross-examined about this, it was apparent that she did not see it as
very serious because
it did not involve theft or dishonesty of that
kind. Even though the arbitrator’s own characterisation of
dishonesty clearly
embraced the conduct of Nombande, it seems that he
also accepted her rationalisation of it as a trivial instance of
dishonesty
to such an extent that he found she had not been
dishonest.
[17] When Nombande was asked how the
employer could be expected to trust her after the second incident
involving the concealment
of her activities on 8 January 2012, her
somewhat enigmatic response was that it was something that she and
Nakedi could “work
through” and “resolve”
even though she had conceded in an email to Nakedi that it would be
difficult for Nakedi
to trust her after she lied on that occasion.
It should have been obvious to the arbitrator from Nombande’s
own admission
that lying to Nakedi had created an untenable
situation. Nakedi had testified that as a result of not being able to
trust Nombande
she was doing more things herself. Nakedi further said
that the PA position Nombande held was one that required someone who
was
reliable and honest.
[18] It may be true that Nombande was
not charged specifically with dishonesty in relation to the events of
8 January, but it was
obviously relevant to whether or not Nombande
had learnt anything from the previous occasion when she had lied,
less than a month
before. Nombande’s deliberate concealment of
what she was doing that day aggravated the seriousness of her
unauthorised absence
from work, which is something the arbitrator did
not even consider.
[19] Considering the impact, can it be
said that the arbitrator’s findings were ones that no
reasonable arbitrator could have
come to on the evidence before him?
On the question of Nombande’s guilt on the charge of
dishonesty, there is no rational
way of explaining the arbitrator’s
conclusion.
[20] In considering the appropriate
sanction, even on the charges which the arbitrator concluded Nombande
was guilty of, the arbitrator
appears not to have applied the
guidelines for dealing with a probationer when considering the
standard of what constitutes a sufficient
reason for dismissal in the
circumstances before him. While acknowledging the basis on which
Nakedi said she employed Nombande,
namely as someone with sufficient
prior experience to organise functions and perform the required
responsibilities, the arbitrator
appears to have implicitly believed
that the employer was expected to treat her as someone who was still
in training.
[21] It will often happen that a
probationary appointment is made in a junior level post in which it
is anticipated that a considerable
degree of on-the-job training will
be conducted during the probation period. This was clearly not the
kind of post to which Nombande
was appointed. Consequently, the
arbitrator ought to have realised that when dealing with a person on
probation in a responsible
position like that of a PA, where the
successful candidate claimed to have the necessary experience for
doing the job, it is not
unreasonable for the employer to simply
point out the perceived shortcomings of the probationer and to
emphasise the importance
of improving her performance if she wanted
to be permanently appointed. His failure to appreciate this led him
to arrive at an
outcome that was not one a reasonable arbitrator
could have come to.
[22] Quite apart from that, there was
nothing to suggest that Nombande was asked to do tasks beyond the
level of competence she
professed to have. At the end of the day, the
essence of the applicant’s complaint was that Nakedi could not
depend on Nombande
as she ought to have been able to. In this
respect, the arbitrator simply did not consider the specific
attributes of the probationary
appointment that was under
consideration. Had he done so, he could not but have realised that
this was not a situation involving
the appointment of a novice or
where the duties imposed where ones that required close supervision
and guidance. Again, even if
one leaves aside the arbitrator’s
unreasonable finding on the charge of dishonesty, the applicant’s
conduct on 8 January
in attending to her own personal business when
her superior was not at the office and misrepresenting her
whereabouts to obscure
the unauthorised nature of what she was doing
is clearly conduct that would raise grave concerns if committed by a
permanent P
A, let alone someone on probation.
[23] At the hearing of the application,
it was contended on behalf of Nombande that although the arbitrator
“might notionally
have taken the lie [about her whereabouts]
into account when he considered the severity of the misconduct for
the purposes of assessing
the fairness of the dismissal, he was not
obliged to do so”. The contention was made that the arbitrator
had simply chosen
to deal holistically with the charges as part of an
assessment that went to the “failure of Denel to properly
trained and
mentor Nombande as part of her probation’.
[24] The difficulty with this line of
argument is that the kind of misconduct under consideration in
relation to her unauthorised
absence from work on 8 January 2013 was
not the type of conduct that an employer might be expected to train
or mentor an employee
on in an effort to correct it during the
probation period. It is not misconduct arising from a failure to
appreciate the workplace
rules and practices of a particular
workplace. Consequently, even if the arbitrator had not been
unreasonable in finding that there
was more than sufficient reason to
end Nombande’s probation and the arbitrator’s failure to
appreciate the serious
nature of her misconduct on 8 January cannot
be rationally justified.
[25] When the arbitrator’s
finding on the charge of dishonesty is corrected, as it must be, to a
finding of guilty, there
can be even less doubt that the sanction of
dismissal was an appropriate one.
[26] In view of the findings above, it
is not necessary to pronounce on the complaint of bias against the
arbitrator, which is a
complaint that might have required the matter
to be referred for a fresh arbitration. As the record is sufficient
to make a finding
on the reasonableness of the award, it is not
necessary to venture into that enquiry.
Order
[27] In light of the reasoning above,
the arbitration award of the second respondent dated 20 June 2013
under case number WCCHEM243-12/13
is reviewed and set aside.
[28] The arbitrator’s effective
finding that the third respondent’s dismissal was unfair is
substituted with a finding
that her dismissal was fair.
[29] No order is made as to costs.
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
For the Applicant: W Jacobs of
Willem Jacobs & Associates
For the Third Respondent: M H Steyn
instructed by Cheadle Thompson Inc.