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[2015] ZALCJHB 87
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Jordex Agencies v Gugubele NO and Others (JR2971/12; J1609/12) [2015] ZALCJHB 87; [2015] 6 BLLR 600 (LC) (11 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: JR 2971/12
J1609/12
Reportable
DATE:
11 MARCH 2015
In
the matter between
JORDEX
AGENCIES
...............................................................................................................
Applicant
And
QUEENDY
GUGUBELE
N.O
.....................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
JOAN
MSIMANGO
...................................................................................................
Third
Respondent
Heard:
14 August 2014
Delivered:
11 March 2015
Summary:
The commissioner’s decision that the third respondent’s
dismissal for leaving the workplace early in order
to catch the last
bus home in breach of a new timekeeping rule taken without regard to
her transport needs was not unreasonable.
The award was therefore not
susceptible to review.
JUDGMENT
LALLIE
J
Introduction
[1]
The applicant brought an application to review and set aside an
arbitration award of the first respondent (“the Commissioner”)
in which she found the dismissal of the third respondent both
substantively and procedurally unfair and ordered her reinstatement.
The third respondent filed an application to have the arbitration
award made an order of court. The applications were consolidated
and
heard together. The parties agreed that if the review application is
unsuccessful then the award will be made an order of court,
however,
should it be successful the other application fall away.
Factual
background
[2]
The third respondent worked for the applicant as a cleaner from 1
October 2003 until her dismissal on 2 August 2012 for living
the
workplace without permission. She challenged the fairness of her
dismissal at the second respondent (“the CCMA”)
where the
Commissioner issued the award which the applicant seeks this court to
review and set aside. The review application is
opposed by the third
respondent.
The award
[3]
The Commissioner found the third respondent’s dismissal
procedurally unfair because his manager allowed her to bring
witnesses who were not the applicant’s employees but the
chairperson did not allow them to testify on her behalf. Giving
reasons for finding the third respondent’s dismissal
substantively unfair, the Commissioner found it common cause that the
applicant and the third respondent enjoyed a cordial working
relationship. Working hours were from 07h30 to 16h30, however, when
the applicant changed the workplace to a place further from the third
respondent’s home, she was allowed to leave earlier
to enable
her catch the last bus home at 16h45. Working hours were changed with
effect from 1 April 2011 at the request of some
employees, excluding
the third respondent who was not present when the request was made,
to 08h00 to 17h00 in order to accommodate
couriers arriving after
16h30. The Commissioner found it common cause that as a cleaner, the
third respondent had nothing to do
with couriers. She was not
convinced that the third respondent decided out of the blue to leave
work early, despite warnings, a
dismissal and a subsequent
reinstatement. She took cognizance of the fact that the third
respondent was allowed to leave early
for a period of four years. She
found that Ms Van Der Walt (“Van Der Walt”) allowed a
personal vendetta against the
third respondent to cloud her
reasonableness. She accommodated the desire of other employees based
on their duties but inexplicably
refused to allow the applicant to
continue working in the manner which accommodated her transport needs
for four years. As a manager
Van Der Walt knew the third respondent’s
plight. The third respondent performed her duties well as a cleaner,
clocked in
early and left earlier than other employees as she had to
catch the last bus home.
[4]
The Commissioner considered the provisions of Item 3 of Schedule 8 to
the Labour Relations Act 66 of 1995 (“the LRA”),
the Code
of Good Practice which deals with disciplinary measures short of
dismissal to determine whether the applicant had taken
corrective
measures before dismissing the third respondent. She also referred to
Item 7 of the same schedule which she erroneously
referred to as Item
3. She found that the rule changing the third respondent’s
working hours of four years was unreasonable.
She was not convinced
that accommodating the third respondent had a negative effect on the
applicant’s operations or work
progress. She concluded that the
third respondent’s dismissal was substantively and procedurally
unfair and ordered her reinstatement
and a payment of an amount of
R2750. 00.
Grounds for
review
[5]
The applicant submitted that the Commissioner committed a gross
irregularity by finding that Dexter prevented the third respondent
from calling witnesses when the evidence before her was that he
prevented the presence of outsiders and third respondent’s
family members from a disciplinary enquiry. Her decision that the
dismissal was procedurally unfair and was not based on evidence
as
the chairperson never refused the third respondent the right to call
witnesses. She committed an error by drawing a negative
inference
from the applicant’s failure to call Harry as a witness having
acknowledged that Jordaan is deceased, as Harry
and Jordaan are one
and the same person. She made an unreasonable finding that the
applicant should have counselled the third respondent
when warnings
and a dismissal had no effect on the third respondent’s
conduct. The applicant further alleged that the Commissioner
committed a gross irregularity by not considering the validity of the
rule breached by the third respondent and reached an unreasonable
conclusion by finding that the applicant was unreasonable in setting
a standard of working time for its employees.
[6]
The applicant submitted that the Commissioner disregarded Van Der
Walt’s evidence that the applicant could not tailor
make its
employees’ work times to their individual needs and required
the whole workforce to work the same hours. She second-guessed
the
applicant on this score thus exceeding her powers.
[7]
The third respondent submitted that the arbitration award was
reasonable and should therefore not to be reviewed and set aside.
She
attacked most of the grounds the applicant sought to rely on as
invalid. She conceded that the Commissioner made an error by
not
recognising that Harry and Jordaan were the one and same person but
submitted that the error was immaterial. She further submitted
that
the Commissioner’s reference to the incorrect item of schedule
8 was not irregular. So was her omission to deal with
the validity of
the rule which formed the basis of the third respondent’s
dismissal.
The test for
review
[8]
Circumstances in which arbitration awards of CCMA Commissioners may
be reviewed are elucidated in the following dictum of
Fidelity
Cash Management Services v CCMA & Others
[1]
‘
[97]
The Constitutional Court further held that to determine whether a
CCMA commissioner’s arbitration award is reasonable
or
unreasonable, the question that must be asked is whether or not the
decision or finding reached by the Commissioner ‘is
one that a
reasonable decision-maker could not reach’. If it is an award
or decision that a reasonable decision-maker could
not reach, then
the decision or award of the CCMA is unreasonable and, therefore,
reviewable and could be set aside. If it is a
decision that a
reasonable decision-maker could reach, the decision or award is
reasonable and must stand’. The court further
held that the
court needs to remind itself that the task of determining the
fairness or otherwise of a dismissal is, in terms of
the LRA,
primarily given to the commissioner. In exercising the power to
review the court needs to consider the totality of the
evidence
before the Commissioner, determine whether the Commissioner dealt
with the principal issue, considered the evidence and
reached a
reasonable decision. In this regard see
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2]
[9]
I have considered the totality of the evidence which served before
the Commissioner and the submissions on behalf of the applicant
and
the third respondent. The applicant submitted that the Commissioner
acted unreasonably by finding the third respondent’s
dismissal
procedurally unfair because she failed to put her allegation of
procedural unfairness to its witnesses, thus denying
the applicant
the opportunity to respond to the allegation. The record reflects
that in her evidence in chief, Van Der Walt testified
that the
chairperson informed the third respondent that her husband and her
friend could not be witnesses or her representatives
because they
were not part of the company. She further indicated that the third
respondent brought people from outside as witnesses
in her case. She
added that there was a whole big thing going on between the
chairperson and the representative/witnesses that
the third
respondent had brought with. Although the evidence supports the
Commissioner’s conclusion that the third respondent
was denied
the opportunity of calling witnesses she erred in concluding that the
denial rendered the dismissal procedurally unfair
because the
applicant was denied the opportunity of responding to the allegation.
[10]
In determining the substantive fairness of the third respondent’s
dismissal the Commissioner considered whether the rule
which the
third respondent had breached was reasonable but did not consider its
validity. The applicant argued that the failure
to consider the
validity of the rule rendered the award unreasonable. In
Herholdt
v Nedbank LTD
[3]
it
was held that material errors of fact are not sufficient to have an
award set aside, but are of consequence if their effect
is to render
the outcome unreasonable. Her omission to deal with the validity of
the rule the third respondent breached did not
constitute an error as
the validity of the rule was not in dispute. The Commissioner’s
reference to Item 8 as Item 3 of schedule
8 to the LRA did not affect
her decision. The errors therefore did not render the award
unreasonable. The Commissioner’s
error in finding the third
respondent’s dismissal procedurally unfair has no effect on her
decision that the dismissal was
substantively unfair. It also
does not affect the relief she awarded because section 193 of the LRA
permits reinstatement
of employees whose dismissal has been found to
be substantively unfair.
[11]
The applicant further submitted that the Commissioner’s finding
that the change of working hours without accommodating
the third
respondent’s circumstances was unreasonable. This argument is
based on
SAPU and Another v National
Commissioner of the South African Police Service and Another
[2006]
1 BLLR 42
(LC) where it was held that an employer is entitled to
regulate work practices. What the applicant overlooked is that the
power
to regulate work practices of members of the Police Service is
governed by the South African Police Service Employment Regulations
(“the Regulations”). Regulations 30 and 31 provide as
follows:
‘
30.
Principles
‘
Working
hours of the service and conditions must support effective and
efficient service delivery while, as far as reasonably possible,
taking into account the personal circumstances of employees including
those of employees with disabilities.
31.
Working Hours
The
National Commissioner must determine –
(a)
the work week and daily hours of work for
employees; and
(b)
the opening and closing times of places of
work and her or his control, taking into account –
(i)
the needs of the public in the service delivery improvement programme
of the service; and
(ii)
the need and circumstances of employees, including family obligations
and transport arrangements’.
[12]
The authority the applicant sought to rely on supports the third
respondent’s version that the Commissioner’s decision
was
not unreasonable. It provides that the employer’s power to
regulate work practices is not without boundaries. Amongst
the
factors the employer needs to consider in exercising the power is
service delivery. It is common cause that the applicant changed
hours
of work to accommodate members of its staff who deal with couriers
which arrive after 14h30. That part of the applicant’s
service
delivered does not affect the third respondent. The applicant should
have taken into account the third respondent’s
personal
circumstances, her needs and circumstances, including family
obligations and transport arrangements when changing hours
of work.
It is common cause that the third respondent left the workplace early
in order to catch the last bus home. For four years
the applicant had
arranged working hours to allow her catch the bus. When it acceded to
the request of a part of its staff complement
to have the working
hours changed, it did not take into account the third respondent’s
transport needs, forcing her to breach
the timekeeping rule in order
to catch the last bus home. Based on the very case the applicant
sought to rely on and the evidence
tendered at the arbitration, the
Commissioner’s decision cannot be faulted as being unreasonable
because it is one which
a reasonable decision-maker could have taken
on the evidence before her. The application for review can, in the
circumstances,
not succeed.
[13]
The parties agreed that should the review application be unsuccessful
then the application in terms of section 158 (1) (c)
of the LRA to
make the arbitration award an order of court should be granted. I
have considered the application and I am satisfied
that the applicant
(who is the third respondent in the review application) has made out
a case for the application to be granted.
[14]
In the premises the following order is made:
14.1
The application for review is dismissed.
14.2
The arbitration award issued by the first respondent under case
number GAJB21394-12 and dated 26 October 2012 is made an order
of
court.
Lallie J
Judge of the
Labour Court of South Africa
APPEARANCES
For
the Applicant: Advocate Beaton SC
Instructed
by: De Villiers & Duplessis Attorneys
For
the Third Respondent: Mr Goldberg of Goldberg Attorneys
[1]
[2008]
3 BLLR 197 (LAC):
[2]
[2014]
1 BLLR 20 (LAC).
[3]
[2013]
11 BLLR 1074
(SCA) at para [25]