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[2015] ZALCJHB 229
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Shoprite Checkers v Commission for Conciliation, Mediation And Arbitration and Others (JR2471/13) [2015] ZALCJHB 229; [2015] 10 BLLR 1052 (LC); (2015) 36 ILJ 2908 (LC) (31 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JR2471/13
DATE:
31 JULY 2015
Reportable
SHOPRITE
CHECKERS
.........................................................................................................
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
..........................................................................
First
Respondent
COMMISSIONER
PRAKASH ROOPA,
N.O
.......................................................
Second
Respondent
ANNIE
MARIETTE
JACOBS
..................................................................................
Third
Respondent
Heard:
30 July 2015
Delivered:
31 July 2015
Summary:
Sanction review – distorting effect of
failure to consider materially relevant facts and considerations
causing an unreasonable
award that dismissal for what amounted to
gross insubordination not warranted – award set aside and
substituted with an order
that dismissal fair.
JUDGMENT
MYBURGH,
AJ
Introduction
[1]
In his award, the second respondent (the
commissioner) found the third respondent (Ms Jacobs) guilty of
misconduct, but held that
the sanction of dismissal was unfair and
awarded her four months’ remuneration as compensation.
[2]
The
applicant (the company) now seeks to review the award in terms of
section 145 of the LRA.
[1]
This
is thus what is commonly referred to as a penalty review.
The
basis of Ms Jacobs’ dismissal and the award
[3]
Ms Jacobs, who was employed as the fresh
food manager at the company’s Jouberton store, was dismissed in
June 2013 on two
counts of misconduct: (1) “serious misconduct
in that you did not follow a legal and reasonable instruction from
your branch
manager on 04/06/2013 by not locking the store as
instructed”; and (2) “[you] did not adhere to your
contract of employment
with regards to the hours of work as
stipulated in point 10”.
[4]
The commissioner found that Ms Jacobs was
guilty of these charges, which arose in the following circumstances.
a.
In terms of the contractual regime between
the parties (read together with the relevant sectoral determination),
Ms Jacobs was required
to either work from 06h00 until 17h00 or from
08h00 until closing time – this without the payment of
overtime. When scheduled
to work until closing time, Ms Jacobs was
typically required to attend to locking the store.
b.
Having worked these hours for some two
years, Ms Jacobs raised a grievance about not being paid
overtime. According to her,
she had obtained some advice in this
regard from the CCMA and the Department of Labour. (It is, however,
now common cause between
the parties that any such advice was wrong,
and that the contractual regime regulating working hours and the
non-payment of overtime
was lawful.)
c.
On 2 June 2013, when things had not been
resolved in her favour, Ms Jacobs gave the company an ultimatum:
from 3 June
2013 onwards, she would work 45 hours per week and
no overtime unless paid, and she would not work hours outside of
08h00 - 17h00.
d.
True to her word, on 3 June 2013, Ms
Jacobs, who was scheduled to work from 08h00 until closing time that
day, refused to stay on
to lock the store, and left early.
e.
Following this, Ms Jacobs was instructed by
the branch manager (Adri Jacobs) to report to her at 06h00 the
following morning,
but she refused to do so and only arrived at work
at 10h00. This resulted in Ms Jacobs being given a formal
warning by the
branch manager during the course of the morning of 4
June 2013 (for having refused to report to work at 06h00).
f.
Upon receipt of the warning, Ms Jacobs made
an annotation on it to the effect that she refused to work overtime
without pay. (Seen
in context, this was a show of defiance, and more
was to come.)
g.
Also on 4 June 2013, the branch manager
instructed Ms Jacobs to work until closing time, which meant that she
would have been responsible
for locking the store.
h.
The instruction was followed by an exchange
of emails on the issue between Ms Jacobs and Mr Meyer (the regional
personnel manager).
In the process, Ms Jacobs stuck to her guns (she
would not work past 17h00 on 4 June 2013 unless she was paid
overtime), with Mr
Meyer having warned her on two occasions that this
would result in disciplinary action being taken against her. In his
dealings
with Ms Jacobs, Mr Meyer carefully explained the
company’s position regarding Ms Jacobs’ hours of work and
remuneration,
and even went so far as to send her an opinion that it
had obtained from its lawyers.
i.
Despite all of this, and as she had done
the previous day, Ms Jacobs refused to work to closing time (and
attend to the locking
of the store) on 4 June 2013.
j.
Significantly, Ms Jacobs had told Ms Nel
(an administration manager) on 4 June 2013 that she wanted the
company to dismiss her because
she wished to be paid certain monies
that it owed her. (Although Ms Jacobs disputed this in her
evidence, there was no challenge
to this evidence by Ms Nel under
cross-examination. I am thus inclined to accept it.)
[5]
In
finding Ms Jacobs guilty as charged, the commissioner found that the
advice that she said she had received from the CCMA and
Department of
Labour could not be justified on the evidence, and that – the
error of her ways having been brought to her
attention by the company
– she had to bear the consequences of bad advice.
[2]
In the context of dealing with the issue of guilt (and not sanction),
the commissioner described the attitude adopted by Ms Jacobs
as
being that “she was bent on following her own dictates and
immune to any advice to desist from the course she had chosen”.
[6]
Turning to the issue of sanction, the full
text of the commissioner’s findings in this regard are as
follows:
“
I
warned the [company] during the matter to deal with the issue of
whether [it] was confident that the sanction of dismissal was
proper
given the nature of the charges. All it presented was the view of
Adri [the branch manager], who when I put questions to
her in this
regard, was most unconvincing. All she could rely upon was the
previous warnings given to Jacobs, which was not further
pursued by
the [company] and did not suggest that at least one of them was a
final warning.
I am of the view
that the [company] was not justified in dismissing Jacobs given the
nature of the misconduct she was charged for,
and that a sanction
short of dismissal would have been an appropriate one. I therefore
find that Jacobs’s dismissal to be
unfair for that reason
alone.”
[7]
In the result, the commissioner awarded Ms
Jacobs four months’ remuneration in compensation (this in
circumstances where she
did not seek reinstatement).
Review and
evaluation
[8]
Following
the SCA’s judgment in
Herholdt
[3]
and the LAC’s judgment in
Gold
Fields
,
[4]
the LAC handed down a very important judgment in
Mofokeng.
[5]
In this judgment, Murphy AJA provided the following (with respect,
typically insightful) exposition of the review test:
“
[33]
Irregularities or
errors in relation to
the facts
or issues, therefore, may or
may not produce an unreasonable outcome or provide a compelling
indication that the arbitrator misconceived
the inquiry.
In
the final analysis, it will depend on the materiality of the error or
irregularity and its relation to the result. Whether the
irregularity
or error is material must be assessed and determined with reference
to the distorting effect it may or may not have
had
upon the arbitrator’s conception of the inquiry, the
delimitation of the issues to be determined and the ultimate outcome.
If but for an error or irregularity a
different outcome would have resulted, it will
ex
hypothesi
be material to the
determination of the dispute. A material error of this order would
point to at least a
prima facie
unreasonable result
.
The reviewing judge must then have regard to the general nature of
the decision in issue; the range of relevant factors informing
the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable equilibrium
has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the arbitrator,
a wrong answer
will not necessarily be unreasonable. By the same token, an
irregularity or error material to the determination
of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the issues, with the
result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted from the correct
path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.” (Emphasis
added.)
[9]
This
dictum
in
Mofokeng
says many important things about the review test. But for present
purposes, consideration need only be given to the guidance that
it
provides for determining when the failure by a commissioner to
consider facts will be reviewable. The
dictum
provides for the following mode of
analysis:
a.
the first enquiry is whether the facts
ignored were
material
,
which will be the case if a consideration of them would (on the
probabilities) have caused the commissioner to come to a different
result;
b.
if this is established, the (objectively
wrong) result arrived at by the commissioner is
prima
facie
unreasonable;
c.
a second enquiry must then be embarked upon
– it being whether there exists a basis in the evidence overall
to displace the
prima facie
case of unreasonableness; and
d.
if
the answer to this enquiry is in the negative, then the award stands
to be set aside on review on the grounds of unreasonableness
[6]
(and
vice
versa
).
[10]
The shorthand for all of this is the
following: where a commissioner misdirects him or herself by ignoring
material facts, the award
will be reviewable if the distorting effect
of this misdirection was to render the result of the award
unreasonable.
[11]
Essentially, this is the case that the
company mounts on review – it contends, in effect, that the
commissioner ignored a
host of material facts, which had the
distorting effect of causing an unreasonable result.
[12]
To
my mind, there is merit in the review application. As a point of
departure, the commissioner clearly went wrong in failing to
consider
“all relevant circumstances” and the “totality of
circumstances”, and then weigh and balance them
in arriving at
a decision on sanction – this as required in terms of the
Constitutional Court’s judgment in
Sidumo
.
[7]
Instead of adopting this approach, the commissioner simply made one
or two findings in isolation (see para 6 above), before concluding
that the sanction of dismissal was inappropriate.
[13]
As a consequence of not undertaking a
proper enquiry into sanction, the commissioner failed to consider the
following relevant facts,
which had a direct bearing on sanction:
a.
the nature and relative seniority of Ms
Jacobs’ position;
b.
the
fact that, properly construed, Ms Jacobs’ misconduct amounted
to gross insubordination
[8]
(which typically warrants dismissal for a first offence), with the
commissioner thus having misconceived the gravity of Ms Jacobs’
misconduct;
[9]
c.
the equally important fact that, on the
unchallenged evidence of Ms Nel, Ms Jacobs had, in effect,
contemplated her dismissal
(with the result that it arguably did not
lie within her mouth to complain about that sanction);
d.
the fact that Ms Jacobs had worked in
accordance with the contractual regime for some two years;
e.
the
fact that Ms Jacobs’ misconduct was not spontaneous, but was
instead planned and orchestrated,
[10]
and involved her deliberately setting herself on a collision course
with management;
[11]
f.
the
fact that Ms Jacobs repeatedly engaged in misconduct – first on
3 June 2013 and then again on 4 June 2013;
[12]
g.
the fact that despite being issued with a
formal warning on the morning of 4 June 2013 by the branch manager
(for refusing to attend
work at 06h00, which amounted to
insubordination), Ms Jacobs was again insubordinate (and grossly so)
a few hours later;
h.
the fact that, on 4 June 2013, Ms Jacobs
was warned against again misconducting herself by Mr Meyer –
this on two occasions;
i.
the fact that, in the process of his
interaction with Ms Jacobs, Mr Meyer explained the company’s
position to her, and even
went so far as to provide her with written
legal advice that the company had obtained;
j.
the fact that Ms Jacobs’ misconduct
of refusing to work until closing time and lock the store involved an
important component
of her duties, and meant that another manager had
to be deployed to do her work;
k.
the
fact that Ms Jacobs displayed no remorse whatsoever, either during
her disciplinary inquiry or during the arbitration;
[13]
and
l.
the fact that both Mr Meyer and the branch
manager (Adri Jacobs) gave cogent evidence to the effect that Ms
Jacobs’ misconduct
served to destroy the trust relationship
(with the commissioner’s finding that the branch manager’s
evidence was restricted
to her having made mention of undefined
warnings, being at odds with the transcription of her evidence and
unreasonable).
[14]
Having identified the relevant facts
ignored by the commissioner, the
Mofokeng
analysis should now be undertaken. To begin with the first enquiry,
to my mind, the relevant facts set out above that were ignored
by the
commissioner constitute material facts, because if they had been
considered by the commissioner, he would (on the probabilities)
have
come to a different conclusion on sanction. In the result, the award
is
prima facie
unreasonable. Turning to the second enquiry, the question is whether
there exists a basis in the evidence overall to displace the
prima
facie
case of unreasonableness. To my
mind, no such basis exists in this case, with the result that the
award is unreasonable.
[15]
Put simply, what occurred in this matter is
that the distorting effect of the commissioner’s failure to
consider a host of
material facts was of such a nature as to cause an
unreasonable (and thus reviewable) award.
Order
[16]
In the result, the following order is made:
1.
the arbitration award issued by the second
respondent is reviewed and set aside;
2.
the arbitration award is substituted with
an order that the third respondent’s dismissal was fair;
3.
there is no order as to costs.
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the applicant: J Jones of Norton Rose Fulbright
On
behalf of the third respondent: G Kirsten of Theron Jordaan &
Smit
[1]
Labour
Relations Act 66 of 1995
.
[2]
This
finding and construction accords with a comparable finding made by
the LAC in
Coin
Security Group (Pty) Ltd v Adams & others
[2000]
4 BLLR 371
(LAC) at para 18: “It was argued by Mr Trengove
for the respondents that they
bona
fide
but mistakenly believed their strike to be protected. Whilst a
bona
fide
,
and reasonable, yet mistaken, belief by strikers in the legality of
their strike action may have a bearing on the fairness of
any
subsequent dismissals (especially if the illegality is technical)
that is not the case in circumstances where strikers have
been
warned that their belief is mistaken. In those circumstances the
strikers, as the collective entity that they are when they
undertake
concerted action, must bear the risk that their union is wrong and
their employer is right. In the present case, the
union and the
respondents were warned on a number of occasions that, since they
had the right to refer the underlying dispute
to arbitration, their
strike would be and was unprotected.”
[3]
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as
amicus
curiae
)
[2013] 11 BLLR 1074 (SCA).
[4]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and others
[2014] 1 BLLR 20 (LAC).
[5]
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50 (LAC).
[6]
The
test for reasonableness was set as follows in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC) at para 110: “Is the decision
reached by the commissioner one that a reasonable decision-maker
could not reach?”
[7]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC) at paras 78-79.
[8]
To
qualify as gross insubordination, the insubordination must be
serious, deliberate and persistent.
[9]
Arbitration
awards dealing with sanction have often been set aside on review on
account of the commissioner having misconstrued
the gravity of the
employee’s misconduct. See, for example,
Motsamai
v Everite Building Products (Pty) Ltd
[2011] 2 BLLR 144
(LAC) at para 23;
National
Union of Mineworkers on behalf of Selemela v Northam Platinum Ltd
(2013) 34
ILJ
3118 (LAC) at para 39;
Zono
v Gruss NO & others
[2011] 9 BLLR 873
(LAC) at para 35.
[10]
See
National
Union of Metalworkers of South Africa (NUMSA) v CBI Electric African
Cables
[2014] 1 BLLR 31
(LAC) at para 39.
[11]
See
Slagment
(Pty) Ltd v BCAWU & others
[1994]
12 BLLR 1
(AD) at 10G-H.
[12]
As
held in
Modise
& others v Steve’s Spar Blackheath
[2000]
5 BLLR 496
(LAC) at para 154, “[a]n employee may successfully
argue that one instance of insubordination should not have led to
dismissal;
but he could never argue that he might continue being
insubordinate without being dismissed, no matter what his employment
record
or his personal circumstances are.”
[13]
See
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) & others
(2010) 31
ILJ
2475 (LC) at paras 27-31.