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[2015] ZALCJHB 317
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Ngobe v J.P Morgan Chase Bank and Others (JR 1893/2012, JR 1882/2012) [2015] ZALCJHB 317; (2015) 36 ILJ 3137 (LC) (17 August 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 1893/2012, JR 1882/2012
DATE:
17 AUGUST 2015
Reportable
In the matter
between:
KOKETSO PRUDENCE
NGOBE
....................................................................................
APPLICANT
And
J.P. MORGAN CHASE
BANK
.........................................................................
FIRST
RESPONDENT
DINAH MOJA-SIBIYA
N.O
........................................................................
SECOND
RESPONDENT
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
......................................................................................
THIRD
RESPONDENT
Heard: 12 August
2015
Delivered: 17
August 2015
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an
application to review and set aside an arbitration award made by the
second respondent, to whom I shall refer as
‘the commissioner’.
In her award, the commissioner held that the applicant’s
dismissal by the first respondent
was substantively fair but
procedurally unfair, and awarded the applicant the equivalent of two
months’ salary as compensation.
The basis of the review
application is that the third respondent, the CCMA do not have
jurisdiction to hear the dispute, the matter
being one of a claim for
automatically unfair dismissal based on the employee’s
pregnancy.
[2] The first
respondent has filed across review in which it challenges the
commissioner’s finding on procedural fairness
and the award of
compensation.
Background facts
[3] The material
facts are recorded in the commissioner’s award and I do not
intend to repeat them here. For present purposes,
it is sufficient to
say that the applicant was employed as a data base administrator in
the first respondent’s global technology
infrastructure team
when the first respondent commenced with a restructuring exercise.
The applicant, the first respondent’s
human resources manager
(Surendra) and manager of the GTI team (Naidu) met on 11 November
2011 to discuss the proposed restructuring.
The applicant was invited
to apply for a new position in the applications development team. On
28 November 2011 a meeting was held
between Surendra and the
applicant. On 2 December 2011, the applicant was informed of the
vacancy in the AD team. On 7 December
2011, she enquired regarding
the first respondent’s policy on moving positions and roles
across different divisions and suggested
that the position in the AD
team was not substantially different from the current position. A Mr
Burbridge respondent on 9 December
2011 stating that those persons
involved in the consultation process would respond to her concerns
regarding the differences between
the two positions. On 29 December
2011, the applicant was interviewed by Mr Ebrahim, the application’s
delivery manager in
the team. Her application was unsuccessful. The
applicant was ultimately retrenched on 13 January 2012.
[4] The applicant
disputed the fairness of her dismissal dispute that was ultimately
referred to arbitration before the commissioner.
Prior to the
arbitration, they held a pre-arbitration conference at which a
pre-arbitration minute was concluded. The minute sets
out, amongst
other things, the facts that were common cause, the facts in dispute,
the legal issues to be decided by the commissioner
and the reasons
why the applicant contended that the dismissal was substantively and
procedurally unfair. The minute specifically
records that there were
no preliminary points to be determined, and that the commissioner was
required to determine whether the
dismissal was procedurally and
substantively unfair. The applicant was represented by an attorney
and indeed, over the course of
a four-day arbitration, the parties
were both legally represented throughout. At the hearing, the first
respondent called Surendra,
Ebrahim and Niadu as witnesses; the
applicant gave evidence and did not call any witnesses.
The award
[5] For present
purposes, the relevant part of the arbitration award under review is
the finding on procedural fairness. In this
regard, the commissioner
held that although the parties had held consultation meetings on 11
and 28 November 2011 the first respondent
had failed adequately to
consider alternatives to dismissal, and that this rendered the
procedure adopted by the first respondent
unfair. What is significant
is that the commissioner does not reject the evidence of any of the
first respondent’s witnesses;
on the contrary, and particularly
in relation to the evidence concerning the new position created, the
commissioner specifically
accepted their evidence that the new
position was substantially different from the applicant’s
existing position, that the
applicant did not have the experience in
some of the duties relevant to the new position and that the first
respondent legitimately
rejected, is now genitive to the
retrenchment, the applicant’s proposal that she be trained for
the new position.
[6] The arbitrator’s
reasoning appears to be that recorded in paragraph 50 of the award.
The commissioner says the following:
‘If one looks
at the specific matter, after the respondent had introduced its
models that led to the restructuring process,
the question is what
alternative did it look at with regard to the affected employees that
occupied the affected positions but
for dismissal. As already
mentioned, other than an undertaking made in the latter (sic) dated
31 October 2011 no mention has been
made of whether or not
alternatives were considered…’
And in paragraph 52:
‘I therefore
find that the failure of the respondent during the consultation
process to consider alternative to dismissal
of the applicant
rendered the procedure for the dismissal for operational requirements
unfair.’
[7] Also relevant
for present purposes is that part of the record in which the fact of
the applicant’s pregnancy is raised.
The applicant are
testified that the effect of the pregnancy may have irritated against
her appointment to the alternative position,
at least to the extent
that it would result in a delay in any required training and her
appointment to that position. The relevant
exchange that took place
during the course of cross-examination between the applicant and the
first respondent’s representative
is the following:
Respondent
representative: now I understand your case your case here today is
not that you didn’t get this position because
you were pregnant
and Mr Ebrahim do not appoint you because of that that’s not
your case, right?
Applicant: the case
here from your last question is the urgency of the role being filled
and if unfortunately the urgency here becomes
an issue to me now as
you raised it because to me from what you saying it was urgent for
the role to be filled and I was in no
position to fill that role
urgently.
Respondent
representative: the question is your case is not that you were not
appointed to this position because of your pregnancy
Applicant: I
certainly wouldn’t say not all yes what I’m saying is
that an urgency is a matter here now from what you’ve
asked me
that arises me to ask a question of the urgency of the role to be
filled for the fact that I was going to come back in
June that
already defeats the urgency itself.
Respondent
representative: this taken as a point you were never told by anyone
that the reason you are not appointed had to do with
your pregnancy,
correct?
Applicant: I was
never told that yes…
Commissioner: the
case it has been referred to CCMA only some having a wrong file
Respondent
representative: yes
Commissioner: was an
issue of retrenchment
Applicant: yes
Commissioner: and if
it’s an issue of pregnancy this was another [inaudible] so
let’s move on?...
Let’s not
deviate from the disputed hand, there was a comment that was done by
the third witness of the respondent Mr Ebrahim
in the reference to
the pregnancy far remember correctly was the fact that the matter
could not be resolved as soon as possible
because they was
complications or issues the applicant had complications with her
pregnancy not that the postal the position or
whatever was happening
had anything to do with the pregnancy so let’s leave it for now
because it will be another point that
the art have to deal with
something else that is outside my hands, if that is to be brought to
the table…
Grounds for review
[8] The applicant
contends in these proceedings that it was incumbent on the
commissioner to identify what she refers to as the
true dispute
before her, namely that the reason for her retrenchment was based on
her pregnancy and that she had accordingly been
discriminated
against. Since the CCMA has no jurisdiction to entertain disputes
concerning dismissals effected for reasons that
are alleged to be
automatically unfair, the applicant avers that the commissioner’s
award is reviewable on the basis that
she lacked jurisdiction.
[9] The cross-review
is based on the application of the reasonableness threshold –
in particular, the first respondent avers
that the decision to which
the commissioner came is one to which no reasonable decision-maker
could have come on the available
material.
Analysis
[10] The challenge
to the commissioner’s jurisdiction in the application for
review ignores the fact that the applicant was
dominus litis in the
CCMA, that she was assisted by her attorneys of record throughout,
that she failed to raise any jurisdictional
issue during the course
of the arbitration and that more fundamentally and she agreed in the
pre-arbitration minute that there
were no preliminary points to be
determined unless these were raised if need be. This is despite the
commissioner’s confirmation,
prior to any evidence being led,
that she was seized with a dispute consequent on the retrenchment of
the applicant and that the
applicant disputed both the substance and
procedure of her dismissal. The record discloses, as indicated above,
that the applicant
pursued a dispute concerning her dismissal on the
grounds of operational requirements throughout and that even when the
commissioner
raised the evidence relating to the applicant’s
pregnancy and in doing so, made a jurisdictional challenge possible,
there
was none.
[11] In short, the
applicant, with the advice of the attorneys of record, made an
election to rely on a course of action that is
capable of being
determined by the CCMA and she remains bound by that election.
[12] The applicant’s
case appears, to some extent at least, to rest on the assumption that
it was somehow incumbent on the
commissioner to intervene in the
process and herself to decide that the real dispute between the
parties was one that concerned
a dismissal on account of pregnancy.
There is a trend in the CCMA for commissioners to intervene on this
basis and to halt arbitration
proceedings and refer a dispute to this
court when the commissioner forms the view that he or she has no
jurisdiction on the basis
that the real dispute between the parties
concerns a reason for dismissal that is listed as automatically
unfair. This is an unfortunate
trend. A party referring a dispute to
the CCMA must stand or fall on the merits of that dispute. If it is
clear from an initial
interrogation of the dispute that the applicant
has erred in referring a dispute concerning an automatically unfair
dismissal to
the CCMA, there can be no harm done in advising an
applicant of that fact and that the matter ought appropriately to be
referred
to this court for adjudication. However, where as in the
present instance, the parties make conscious decisions to run a case
in
an arbitration process in full appreciation of the jurisdictional
consequences of their election, it is not appropriate for
commissioners
to intervene by abandoning the proceedings, thereby
dictating to parties what he or she thinks their real dispute is and
how it
should be litigated.
[13] Insofar as the
cross-review is concerned, it is well-established that the failure by
a commissioner to have regard to particular
evidence or to place
weight on the evidence that is not relevant, is not in itself a
ground for review. What matters is the reasonableness
of the outcome.
In the present instance, there was uncontested evidence before the
commissioner that the first respondent did not
consider viable to
maintain the status quo, and that the applicant was informed when the
section 189 (3) notice was issued that
she would be considered for
the vacant positions. The applicant was considered for the AD
position. The possibility of training
was given consideration
throughout and found not to be a reasonable possibility. The
applicant accepted, the evidence, that the
status quo could not be
retained and that apart from the new position, there were no other
vacancies at the first respondent. I
fail to appreciate how the
commissioner, the circumstances, could reasonably have come to the
conclusion that the first respondent
had failed adequately to
consider alternative to the applicant’s retrenchment. That is
never the applicant’s case,
the record of the proceedings
before the commissioner does not sustain such a conclusion and, on
the contrary, indicates that the
first respondent did indeed consider
the applicant for the alternative position and as an alternative to
her retrenchment. In my
view, even failing to have regard to the
evidence, the commissioner committed a reviewable irregularity which
had the consequence
of her coming to a decision that was unreasonable
in the circumstances. Her finding of procedural unfairness
accordingly stands
to be reviewed and set aside. There is little
point in remitting the matter for rehearing. The record is before the
court and it
is in the interests of both parties that finality be
reached. I intend therefore to substitute the commissioner’s
award with
a ruling to the effect that the applicant’s
dismissal was substantively and procedurally fair.
Costs
[14] The court has a
broad discretion in terms of s 162 of the Act to make orders for
costs on the basis of the requirements of
the law and fairness. The
court is traditionally reluctant to penalise individual employees who
bona fide pursue grievances against
their employers. Despite the
applicant’s misguided reliance on a ground for review that is
clearly an afterthought (some
might consider it to be opportunistic),
I am unable to find on the papers before me that the applicant’s
conduct is mala
fide or that these proceedings were frivolously
instituted. I intend therefore to make no order as to costs.
For the above
reasons, I make the following order:
1. The application
to review and set aside the second respondent’s award is
dismissed.
2. The cross-review
is upheld and the second respondent’s award is substituted by
the following:
‘The
applicant’s dismissal was substantively and procedurally fair’.
3. There is no order
as to costs.
ANDRE VAN NIEKERK
JUDGE OF THE
LABOUR COURT
APPEARANCES
For the
Applicant: Adv. L Pillay instructed by Mothuloe ATTORNEYS
For the
Respondent: Mr. I Gwaunza, Edward Nathan and Sonnenbergs