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[2015] ZALCJHB 338
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Letlatsa v Air Chefs (Pty) Ltd (J1074/13, JR1155/13) [2015] ZALCJHB 338 (5 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J1074/13
JR1155/13
DATE:
05 OCTOBER 2015
Not
Reportable
In
the matter between:
LEHLOHONOLO
FORTUNE LETLATSA
….....................................................................
Applicant
And
AIR
CHEFS (PTY)
LTD
.......................................................................................................
Respondent
Delivered:
5 October 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
There
are two applications before the Court. The first application
(J1074/13) was brought by the Applicant in terms of section 158(1)(c)
of the Labour Relations Act
[1]
(the LRA). He seeks an order that the arbitration award issued under
GAEK 8301-12 dated 29 April 2012 under the auspices of the
CCMA be
made an order of court. The second application (JR11255/13) was
brought by the Respondent, in terms of which an order
is sought to
review and set aside the said award.
Background:
[2]
For the sake of convenience, the parties
shall be referred to as cited in the section 158 (1) (c) application.
The Applicant commenced
his employment with the Respondent in April
2003. At the time of his dismissal on 12 September 2012, he was
employed as Employee
Relations Manager. The allegations of misconduct
that led to the dismissal were;
a)
“
Gross negligence in that on the 29
th
June 2012 you attended a conciliation hearing at the CCMA and failed
to implement legal advice given to you by the Labour Lawyer
resulting
in the company being put at a risk of losing a Labour Court case with
the union;
b)
Alternatively gross negligence in that on
the 29
th
June 2011 you withdrew a conciliation referral at the CCMA without
consultation with your Manager or a legal representative, putting
the
company at risk of losing a Labour Court dispute with the union;
c)
Abdication of critical responsibility
relating to a conciliation hearing to your subordinate, whom you had
not properly briefed;
d)
Failure to communicate the outcome of
conciliation (withdrawal thereof) to our Manager and legal
representative for over a week
post-conciliation hearing”
[3]
Having referred an alleged unfair dismissal
dispute to the CCMA, the matter came before Commissioner Nomusa
Mbhele on 10 December
2012 and was finalised on 15 April 2013. An
award was issued on 29 April 2013, in terms of which the Applicant’s
dismissal
was found to be procedurally fair but substantively unfair.
The Commissioner ordered that the Applicant be reinstated with arrear
payment of his salary in the amount of R264 000.00.
[4]
On 23 May 2013, the Applicant launched an
application in terms of section 158 (1) (c) of the LRA to make the
award an order of court.
The Respondent promptly opposed this
application. This was followed by an application filed on 3 June 2013
to review and set aside
the award. The Applicant also opposed this
application.
[5]
The issues that led to the dismissal of the
Applicant are considered against the following background;
5.1
The Respondent entered into a substantive agreement with SATAWU on 11
June 2010 entitled
‘2010/2011 Substantive Agreement’.
Clause 3.4 of that agreement provided that;
‘
SATAWU
and management to conduct a benchmark exercise with the purpose of
determining the extent and to arrive at a ‘danger
allowance’
within 60 days of the signing of this agreement. Upon agreement
between the signing parties, it shall be implemented
with immediate
effect’
5.2
The parties could however not reach an agreement on how the process
of benchmarking should
unfold or be implemented, and this resulted in
a dispute pertaining to mutual interests being referred to the
Bargaining Council
for the Restaurant, Catering and Allied Trades on
12 January 2012. The dispute was in respect of non-payment of the
danger allowance.
5.3
The dispute could not be resolved on 26 March 2012 and a certificate
of outcome was issued.
Attempts were made by the parties to resolve
the issues but nothing came of it, and SATAWU issued a strike notice,
indicating that
its members would embark on strike action on 20 April
2012 in support of their demand for payment of danger allowance.
5.4
On 18 April 2012, the Respondent instituted an application to
interdict the proposed strike
action under Case Number J1002/12,
contending that the strike was unlawful as the parties were bound by
a collective agreement.
On the same date, the Respondent also
referred a dispute in terms of section 24 of the LRA to the
Bargaining Council to seek a
ruling that SATAWU should comply with
the provisions of the agreement.
5.5
The Respondent obtained an interim order on 19 April 2012, with the
return date being on
17 May 2012. The application was nevertheless
dismissed on 18 June 2012. Immediately thereafter, the Respondent
launched an application
for leave to appeal against the judgment, as
SATAWU indicated its intention to embark on strike action.
5.6
The Bargaining Council on the other hand had also declined to
consider the dispute referred
in terms of section 24 on the basis
that it lacked jurisdiction to do so, and that the dispute should
instead be referred to the
CCMA. The Respondent accordingly referred
the dispute to the CCMA, which matter was set down for a conciliation
hearing on 29 June
2012.
5.7
The Applicant together with his colleague, Tebogo Moloto were
supposed to attend to the
conciliation meeting scheduled for 29 June
2012. In order to assist them at the conciliation meeting, the
Respondent’s attorneys
of record had drafted a ‘conciliation
statement’, and to also to ensure that a certificate of
non-resolution was issued
so that the dispute could be referred to
arbitration. SATAWU nevertheless failed to attend the conciliation
meeting.
5.8
The Applicant’s contention is that on the advice of the
conciliating Commissioner,
the dispute was withdrawn. The dispute was
withdrawn by Moloto in the presence of the Commissioner. At that
time, the Applicant
had excused himself from the proceedings, but had
fully acquiesced to the withdrawal. The Respondent’s contention
is that
the withdrawal took place in circumstances where the
Applicant had abdicated his duties to Moloto, and also where he had
failed
to solicit further advice from its attorneys of record or its
management prior to the withdrawal.
The grounds of
review:
[6]
It was submitted on behalf of the
Respondent that two central issues were before the Commissioner, viz,
whether the withdrawal of
the section 24 dispute resulted in the
company being put at risk of losing the appeal before the Labour
Appeal Court, and secondly,
whether if the withdrawal placed the
company at risk of losing the appeal, the Applicant was grossly
negligent.
[7]
The Commissioner had found that the
Applicant was not grossly negligent because the withdrawal of the
section 24 referral did not
result in the company being put at risk
of losing the appeal. Her reasoning was that the withdrawal was not
part of a final settlement
of the dispute and therefore the company
was at liberty to re-refer the dispute which it could have done once
it became aware of
the withdrawal. The Commissioner had further
reasoned that the employees had in any event, not embarked on the
strike as at the
date of the arbitration. As I understand the essence
of the award, the Commissioner’s ultimate view is that the
Respondent
had not been prejudiced by the withdrawal of the dispute.
[8]
The Respondent’s contention was that
the Commissioner’s finding is wrong, and one that a reasonable
decision maker could
not have come to. In this regard, it was
submitted that the appeal in respect of the urgent application was
conditional on the
continuation of the section 24 dispute, as an
interdict was sought pending the finalization of that dispute. It was
contended that
once the dispute was withdrawn there was no dispute
pending upon which the interdict could be sought, and accordingly,
the interdict
was discharged as the basis of the appeal fell away.
[9]
It was further submitted that whether the
section 24 dispute could be re-referred to the CCMA was moot as the
re-referral could
not revive the appeal, and to this end, it was
contended that the Commissioner committed an error of law or fact
when she concluded
that the withdrawal of the dispute did not place
the company at risk in respect of the appeal, and that the company
could have
remedied the situation by a simple re-referral. The
Respondent further attacked the award in regard to the remedy
ordered, contending
that the Commissioner failed to properly exercise
her discretion in terms of section 193 of the LRA.
[10]
Submissions made on behalf of the Applicant
were vastly based on a legal opinion sought from Adv. Bruinders SC,
and whose view was
that by withdrawing the danger allowance dispute
from the CCMA on the suggestion of the conciliating commissioner, the
Applicant
was not guilty of gross misconduct. It was also submitted
that the Applicant could not be found guilty of a failure to obey an
instruction as there was no such an instruction; that at most, the
Applicant should have been found guilty of a lesser charge, and
that
the Respondent should have applied progressive discipline.
Furthermore, it was contended that the Commissioner relied on a
variety of factors in coming to her conclusions including the fact
that no consequences arose from the withdrawal of the matter.
Evaluation:
[11]
Where
it is alleged that a Commissioner misapplied the law to the facts
before him or her, the effect of the allegation is that
the
Commissioner committed gross irregularity as contemplated in section
145(2) (a) (ii) of the LRA. Gross irregularity occurs
“where
the decision-maker has undertaken the wrong enquiry or undertaken the
enquiry in the wrong manner and produced an
unreasonable award
[2]
.
The SCA in
Herholdt
further held that;
“…
an
error of fact or law by the arbitrator would not justify the
setting-aside of the award, unless it had the result that the
arbitrator
was diverted from the correct path in the conduct of the
arbitration and as a result failed to address the question raised for
determination in the arbitration.”
[3]
[12]
The complaint in this case was that the Commissioner had misapplied
the law in relying on what was in fact
obiter
dictum
in
Kgobokoe
v CCMA & Others
[4]
,
rather than following the
ratio
in
Public
Servants Association of South Africa on behalf of Strydom v SARS
[5]
,
where it was held that
once a party withdraws an application, he or she would be barred from
changing the choice by the doctrine of election which provides
that
once a choice is made, a party should stay with that choice. In
Kgobokoe
,
Shai AJ having considered that the issue before
Strydom
pertained
to peremption in respect of an appeal, had concluded that the facts
were distinguishable, and that in line with the principles
enunciated
in
Roupell
v Metal Art (Pty) Ltd and Another
[6]
,
the approach that a withdrawal of a dispute could be withdrawn should
be followed.
[13]
The consequences of a withdrawal of a dispute at the CCMA received
detailed attention by this Court in
Ncaphayi
v CCMA & Others
[7]
.
Having held that the withdrawal of a dispute referral to the CCMA was
not an act of any functionary, but the action of an employee
party to
a dispute, and further that the commissioner played no role in that
decision
[8]
, La Grange J further
concluded that
[9]
;
“
The
second reason relates to the effect of a withdrawal of a referral to
conciliation. The LRA does not deal with the withdrawal
of matters
referred to the CCMA and neither do the rules of the CCMA. Rule 13 of
the Labour Court merely deals with the procedure
to be followed if a
party wishes to withdraw proceedings. It is instructive to note how
the High Court has considered the effect
of a withdrawal of a matter.
It has been held that the withdrawal of a matter by a party is akin
to an order of absolution from
the instance. Ordinarily, an order of
absolution from the instance does not prevent a party from
reinstituting proceedings and
the defendant absolved in the first
proceedings will not be able to raise the
exceptio
rei judicatae
if sued again on the same
cause of action.” (Authorities omitted)
And,
“
If
the withdrawal of a matter in the High Court at a stage when it is
ripe for hearing does not necessarily prevent the institution
of
fresh proceedings, it would be anomalous if the withdrawal of a
matter at the conciliation stage of dispute resolution under
the LRA
– when no decision on the merits of the dispute is even
possible - precluded a party from making a fresh referral.
Obviously,
if the withdrawal under consideration is part and parcel of a final
settlement of the dispute the situation would be
quite different.
However, in this case, the withdrawal was at the applicant’s
own instance and not an intrinsic part of a
settlement agreement. It
should also be mentioned that the commissioner presiding at the first
conciliation did not issue a certificate
of outcome so the question
of whether or not that would have to be set aside before the matter
could be reconsidered does not arise
in this case.”
(Authorities omitted)
[14]
Ncaphayi
has been followed in a number of decisions by this Court. In
SAMWU
and Others v Commission for Conciliation Mediation and Arbitration
and Another
[10]
,
Steenkamp J, agreed with that decision, and drew a distinction
between a withdrawal at the applicant’s own instance and
where
the withdrawal is an intrinsic part of a settlement agreement. The
Court held that;
“…
.Whether
the notice of withdrawal can be seen to be akin to a settlement
agreement, is a different question that I will address
under the
heading of “election”. But it seems to me that, as was
the case in Ncaphayi, the withdrawal of the first
referral was akin
to an order of absolution from the instance. That does not deprive
the CCMA of jurisdiction to enrol the second
referral for
arbitration. Whether that referral has any prospects of success, and
whether the applicants will succeed in their
application for
condonation, is for the arbitrator to decide. So is the defence of
election or waiver.”
[11]
[15]
In also confirming the approach in
Ncaphayi,
Molahlehi J in
South
African Municipal Workers Union and Others v Zenzeleni Cleaning and
Transport Services CC and Others
[12]
,
held that;
“
There
is no automatic legal consequence that a withdrawal of a dispute
means that the withdrawal cannot be withdrawn and the dispute
be
re-enrolled. Once the applicants’ application to have the
matter re-enrolled was made it was incumbent on the Commissioner
to
enquire as to whether the withdrawal precluded the applicants from
proceeding further with the dispute. It is only where the
withdrawal
is consequent to the compromise of the dispute, that it cannot be
withdrawn….”
[16]
In the light of the consistent approach of this court, which I have
no reason to divert from, a withdrawal of a dispute at
the CCMA can
be withdrawn, and it is always open to a party to file a fresh
referral, subject to specific defences that may be
raised by
respondent party, including election, a waiver, a final determination
of a dispute and/or questions of prejudice. Prejudice
may have to be
addressed within the context of an application for condonation where
so required.
[17]
It therefore follows that any contention that the Commissioner had
misread or misapplied
Kgobokoe
, and that the correct approach
to follow is that in
PSA of SA obo Strydom
is clearly
misplaced. The matter having been withdrawn at conciliation, in
circumstances where the Applicant had acted on the
bona fide
advice of the conciliating commissioner, and further in circumstances
where the dispute had not been resolved or finalised, the
Respondent
was still at liberty to re-refer the dispute at any stage. There is
therefore no merit in the contention that the withdrawal
impacted on
the application for leave to appeal, and even if there was any
impact, this could have been circumvented with a re-referral
of the
dispute.
[18]
The contention that the continuation of the appeal hearing was
dependent on the section 24 referral is thus without merit in
that
what the Respondent sought with the urgent interdict was an order
declaring the intended strike action at the time to be unprotected
or
unlawful, whilst the section 24 referral pertained to the
interpretation and/or application of the substantive agreement. It
was common cause that SATAWU did not at any time after the withdrawal
of the dispute embarked on any strike action, and it can
only be
assumed that no strike action was taken in the light of the
application for leave to appeal. It can therefore not be correct
that
the withdrawal of the dispute at the CCMA rendered the application
for leave to appeal moot, as the dispute before the LAC
and the one
under section 24 of the LRA followed different jurisdictions,
albeit
the principal cause of the dispute was common to both processes.
[19]
In view of the conclusions reached that the dispute could have been
referred at any stage after its withdrawal, any connection
between
the disputes before the Labour Appeal Court and the one that was
withdrawn from the CCMA is clearly overplayed. I did not
understand
from the Respondent’s arguments as to whether its fears in
regards to the alleged detrimental effect of the withdrawal
of the
dispute on the Labour Appeal Court were proven to be correct. As at
the hearing of these applications, it is not known what
the effects
of the withdrawal were on the leave to appeal application.
[20]
In the light of the above conclusions, there is no merit in the
Respondent’s contention that the Commissioner committed
a
reviewable irregularity to the extent that it was argued that she had
misapplied the law in relying on
Kgobokoe.
The conclusions
reached by the Commissioner that the withdrawal of the dispute was
not part and parcel of a final settlement of
the dispute, and that
the dispute could be re-referred was a reasonable one and in
accordance with legal principles followed in
this court.
[21]
Once it was established that the Applicant had not placed the
Respondent’s application for leave to appeal at risk with
the
withdrawal of the dispute, it can therefore not be said that he was
grossly negligent. At most, and if ever there is anything
to be held
against the Applicant, it is that he had not conferred with the
Respondent’s attorneys of record or its management
when
deciding to withdraw the dispute. The first issue in this regard is
that I did no not understand the Respondent’s case
to be that
the conciliating commissioner’s advice was not made and
accepted in good faith. It is accepted that the Applicant
was not
bound to heed the advice of the conciliating Commissioner. It is also
accepted that the dispute is or was important to
the Respondent as it
wished to avert any strike action, and to hold SATAWU to the process
of implementing benchmarking in regards
to the issue of danger
allowance.
[22]
The issue nevertheless is whether the failure to consult with
attorneys and the Respondent’s management prior to withdrawing
the dispute constituted such gross misconduct to the extent that a
dismissal was appropriate. The Respondent’s contention
was that
the negligence of the Applicant was so gross that it goes to the very
heart of the employment relationship and the company’s
ability
to trust him. This contention was based on the grounds that the
Applicant was unrepentant and recalcitrant in insisting
that he had
done nothing wrong and had acted properly.
[23]
From the award, it does not appear that the Commissioner dealt
decisively with the other charges pertaining to abdication of
responsibilities and failure to communicate with the Respondent after
the matter was withdrawn. Even if the Applicant was found
guilty on
these charges, it is my view that the conclusions reached by the
Commissioner in regards to the appropriateness of the
sanction of
dismissal are unassailable.
[24]
It is trite that a sanction of dismissal is reserved for the most
forms of gross misconduct. A dismissal would have been appropriate
in
circumstances where the negligence complained of was so gross, as
would have been evident from potential or actual prejudice
or harm to
the Respondent. A Commissioner is required to come to an independent
decision as to whether the employer’s decision
was fair in the
circumstances established by the factual matrix confronting him or
her
[13]
. The gravity of the
misconduct is an important factor in determining the appropriateness
of dismissal as a sanction, and factors
such as long service, a clean
record have to be weighed against the risks posed to the employer’s
operations and the likelihood
of the misconduct being repeated. In
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[14]
,
it was held that;
‘
Dismissal
is not an expression of moral outrage; much less is it an act of
vengeance. It is, or should be, a sensible operational
response to
risk management in the particular enterprise. That is why supermarket
shelf packers who steal small items are routinely
dismissed. Their
dismissal has little to do with society’s moral opprobrium of a
minor theft; it has everything to do with
the operational
requirements of the employer’s enterprise.’
[25]
The argument that the sanction of dismissal was appropriate on
account of the Applicant not having shown contrition has merit.
However, a lack of remorse on its own is not a decisive factor, and
must be balanced against all other factors. Inasmuch as the
Applicant
may have failed to consult with the Respondent’s management or
its attorneys of record prior to and after withdrawing
the dispute,
the Commissioner had properly concluded that the Respondent had not
suffered any prejudice, and further that no evidence
was placed
before her that the employment relationship had broken down.
Effectively, the misconduct in question was not considered
to be
gross.
[26]
Furthermore, the Commissioner had pointed out that no evidence was
led as to whether the Applicant’s conduct would not
have been
corrected by progressive discipline in respect of those charges
against him. It is not sufficient for an employer to
simply allege
that the employee’s conduct has broken a trust relationship in
the absence of evidence in that regard
[15]
.
In my view, and having evaluated the merits of this case and the
reasoning of the Commissioner, there is no basis for a conclusion
to
be reached that the decision arrived at was one that another
reasonable decision maker could not have arrived at in the light
of
the material before her.
[27]
It is accepted that the Respondent may have been incensed by the
decision to withdraw the dispute in the light of the sole
purpose of
that referral being to avert a strike. However, the Applicant’s
conduct at the end did not result in strike action
being embarked
upon, and as already indicated the outcome of the application for
leave to appeal remains unknown. In my view, the
dismissal was not in
response to any real or potential risk posed to the Respondent’s
operations. The Respondent’s
incorrect interpretation of
principles regarding a withdrawal of disputes cannot be held against
the Applicant, and any other allegations
of misconduct did not
warrant a dismissal. If ever there was any inconvenience caused to
the Respondent as a result of the need
to re-refer the dispute, the
sanction of dismissal was clearly disproportionate to the
inconvenience caused. As correctly pointed
out by the Commissioner,
corrective action short of a dismissal would have sufficed in regards
to the need by the Applicant to
seek a full mandate whenever dealing
with matters at the CCMA in future.
[28]
To the extent that it has been established that the award of the
Commissioner falls within a range of reasonableness, it follows
that
there is no basis to interfere with it, and there is further no basis
to interfere with the relief granted to the Applicant.
Accordingly,
the application in terms of section 158 (1) (c) of the LRA should
also be successful. Further having had regard to
considerations of
law and fairness, it is concluded that the Respondent should be
burdened with the costs of the review application.
Order:
i.
The application to review and set aside the
arbitration award issued on 29 April 2013 under case number
GAEK8301-12 is dismissed.
ii.
The above mentioned award is made an order
of court in terms of the provisions of section 158 (1) (c) of the
Labour Relations Act.
iii.
The Respondent (Air Chefs (Pty) Ltd) is
ordered to pay the costs of the review application.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Mr. Andrew Goldberg of Goldberg Attorneys
On
behalf of the First Respondent: Mr. L Frahm-Arp of Fasken Martineau
(Incorporated as Bell Dewar Inc)
[1]
Act
66 of 1995
[2]
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
(2013) 34 ILJ 2795 (SCA) at para [21]
[3]
At
para [19]
[4]
(2012)
33 ILJ 236 (LC)
[5]
(2007)
28 ILJ 2037 (LC)
[6]
1972
(4) 300 (W)
[7]
(2011)
32 ILJ 402 (LC)
[8]
At
para [26]
[9]
At
paras [27] to [28]
[10]
(2014)
35 ILJ 2011 (LC). See also
Sunduza
Dorah Baloyi v CCMA & Others
Case
no: JR 2634/13 (unreported)
[11]
At
para 15
[12]
(JR852/13)
[2015] ZALCJHB 47 (23 February 2015) at para [15]
[13]
South
African Breweries Limited v CCMA & others
ZALAC CA 13/2012 30 May 2014
[14]
(2000)
21 ILJ 1051 (LAC) at para [2
[15]
See
Edcon
Limited v Pillemer N.O
[2010] 1 BLLR 1
(SCA) at para 20