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[2015] ZALCD 10
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Capital Tobacco And Distribution (Pty) Ltd v Mahomed and Others (D459/13) [2015] ZALCD 10 (28 January 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case no: D459/13
DATE: 28 JABUARY
2015
Not Reportable
In the matter
between:
CAPITAL TOBACCO
AND DISTRIBUTION (PTY) LTD
...................
Applicant
And
FARHAAD
MAHOMED
..............................................................
First
Respondent
COMMISSIONER
MICHAEL BOYCE
..................................
Second
Respondent
COMMISSION FOR
CONCILIATION
AND
ARBITRATION
...................................................................
Third
Respondent
Heard: 07 January
2015
Delivered: 28
January 2015
Summary:
Application to review arbitration award following a dismissal –
alleged that arbitrator committed a gross irregularity
and acted
unreasonably – test on review restated – narrow test –
no basis for interfering with arbitrators finding
that employee had
not been insubordinate – review application dismissed with
costs.
JUDGEMENT
LAWRENCE AJ
[1]
This is a review application brought by the Applicant in terms of
Section 145 of the Labour Relations Act No. 66 of 1995 (“LRA”)
to have the arbitration award issued by the Second Respondent,
Commissioner Michael Boyce, on the 15 May 2013 reviewed and set
aside.
[2]
The arbitration award arises from the dismissal of the First
Respondent,
Farhaad
Mahomed,
on the 17 January 2013 by
the Applicant, Capital
Tobacco
and Distribution
(Pty) Ltd.
[3]
The dismissal occurred after the First Respondent was disciplined by
the Applicant for being insubordinate in that he had allegedly
failed
to obey a reasonable and lawful instruction given to him by the
Chairman of the Applicant, a Mr Abdoola on the 10 January
2013.
[4]
It is common cause that the First Respondent had been employed by the
Applicant as a Manager and was remunerated a salary of
R20 000
(twenty thousand rand) per month as at the date of his dismissal.
[5]
On the afternoon of 10 January 2013, Mr Abdoola had a conference
telephone call with the Applicant’s various Managers
based at
its Johannesburg office, and this included the First Respondent.
[6]
During that telephone conference, Mr Abdoola expressed concern about
the fact the Applicant’s female Warehouse Manager
who is
female, had been undertaking the task of opening and closing the
premises alone on a daily basis. He went on further to
indicate that
in his view this constituted a safety risk.
[7]
Mr Abdoola proceeded to indicate that in future male Managers of the
Applicant would be required to be present when the Warehouse
Manager
open and close the premises.
[8]
After the telephone conference, the First Respondent and another
Manager referred in the arbitration award as “Nelson”
spoke to Ms. Bibi the General Manager of the Applicant indicating
that they had difficulties in being present at the opening and
closing of the premises.
[9]
In the Applicant’s case he had responsibilities of fetching his
daughter from crèche whilst in Nelson’s case
he also had
some difficulties with being present in opening the premises in the
morning.
[10]
It is unclear from the record or the arbitration award of the Second
Respondent as to whether both Nelson and the First Respondent
were
required to both be present at the opening and closing of the
premises or whether only one of them were required to be present
at
the times in question.
[11]
It is also unclear as to whether the responsibility for performing
this task was allocated solely to the First Respondent and
Nelson or
whether other male Managers of the Applicant at its Johannesburg
office would also be expected to perform this function.
[12]
The First Respondent’s contract of employment respectively
provided at paragraph 7 and paragraph 9 for the regulation
of working
hours and overtime.
[13]
As far as the regulation of working hours is concerned, the contract
provided that the First Respondent hours of work could
change in
future depending on the demands of the business. It went out further
to provide that adequate notice would be given to
the First
Respondent.
[14]
As far as overtime is concerned, the contract provided that the First
Respondent, due to operational needs of the business
could be
required to work overtime when the need arose.
[15]
As it turned out the following morning, the 11 January 2013, Nelson
did not attend work as he was ill and the First Respondent
was also
not present when the female Warehouse Manager opened the premises.
[16]
The First Respondent left work at his normal time on the 11 January
2013 and did not remain behind with the Warehouse Manager
for the
purposes of closing the premises.
[17]
He was telephoned by Bibi and instructed to return to work but
indicated that he was unable to do so as he was already on the
Freeway and on the First Respondent’s version at the
arbitration he was committed to picking up his child from crèche.
[18]
The First Respondent was charged before a disciplinary enquiry with
insubordination for failing to obey a reasonable and lawful
instruction.
[19]
His defence was that there was uncertainty as to which Managers were
specifically required to be present at opening or closing
of the
premises. He further contended that he had attempted to articulate
his concerns to the Chairman but was unable to “get
a word in”
during the teleconference. He went on to state that he had raised his
concerns with the General Manager, Ms. Bibi
and contended that he had
set working hours that had been agreed to and if these hours were to
be changed he needed to be given
adequate notice by the Applicant.
[20]
In essence the substance of his defence appears to have been that the
notice given to him was hardly adequate particularly
in view of his
personal commitments.
[21]
After hearing evidence from Applicant’s witnesses and the First
Respondent, the Second Respondent found that the dismissal
was
substantively unfair and ordered the Applicant to pay 4 months
compensation to the First Respondent in the amount of R83 200
(eighty
three thousand two hundred rand).
[22]
In the Second Respondent’s analysis of the evidence at
arbitration he found that the notice of change of working hours
given
by the Applicant to the First Respondent was not adequate (as is
envisaged in the First Respondent’s contract of employment)
and
the instruction was accordingly both unreasonable and unlawful and as
such the First Respondent was not under obligation to
comply. He
further noted that the First Respondent had a credible explanation in
that he had obligations to collect his child from
crèche.
[23]
The Second Respondent further found that although the Applicant’s
disciplinary code provided for a sanction of dismissal
for
insubordination, there was firstly no insubordination in the present
matter and aside from that, the sanction meted out to
the First
Respondent was not in keeping with the principles of progressive
discipline as are indicated in Schedule 8 of the Code
of Good
Practice to the LRA.
[24]
The grounds upon which the Applicant seeks to base its review
application are set out in Section 145(1) of the LRA and the
Applicant also contends that the Second Respondent has issued an
award that is so unreasonable that no reasonable decision maker
could
have reached such a decision in the light of issues and evidence
placed before him.
[25]
In this regard, it was argued on behalf of the Applicant that the
Second Respondent had acted grossly irregular by overlooking
the fact
that the First Respondent was a senior Manager and his
insubordination had been perpetuated over three separate occasions.
Ms. Oliver argued on behalf of the Applicant that the Second
Respondent had failed to take into account the fact that the
Applicant
had on the morning of 11 January 2013 failed to arrive at
work timeously to open the premises (“the first act of
insubordination”),
the fact that the First Respondent had left
work before closing the premises (“the second act of
insubordination”),
and thirdly that he had refused to return to
work when instructed to do so by Ms. Bibi (“the third act of
insubordination”).
It was further submitted that had the Second
Respondent properly taken into account the separate incidents of
insubordination by
the First Respondent, she would have found that
the misconduct complained of was so gross that it broke the
employment relationship.
[26]
It was further submitted on behalf of the Applicant that the
compensation awarded by the Second Respondent to the First Respondent
was also unreasonable.
[27]
Mr Van der Westhuizen who appeared on behalf of the First Respondent
submitted that there were no grounds for review established
by the
Applicant. It was argued that if one had regard to the test on
review, as set out in
Herholdt
v Nedbank Ltd and Another,
[1]
the focus in a review application should be on the reasonableness or
otherwise of the outcome and one is less concerned with the
correctness or otherwise of the method used by the particular
arbitrator.
[28]
The Second Respondent, it was submitted, had considered all the
material facts and the criticisms raised by the Applicant that
the
gravity of the insubordination was serious is without merit and in
reality the alleged insubordination related to a single
instruction
given by Mr Abdoola on the preceding day. As the argument went, the
First Respondent had been given less than 24 hours’
notice of a
change to his working hours and in any event, the instruction was so
vague that it was unclear as to exactly what is
expected of the First
Respondent.
[29]
As far as the compensation is concerned it was argued on behalf of
the First Respondent that the amount awarded was reasonable
having
regard to the fact that the First Respondent had been unemployed for
the full period of four months between the date of
his dismissal and
the date of the award.
[30]
Both representatives agreed that the costs should follow the result.
[31]
I have considered the arguments placed before me and am satisfied
that there is no basis for the award of the Second Respondent
to be
reviewed and set aside.
[32]
In the
Herholdt
decision
(supra)
the Supreme Court of Appeal stressed that the test as was initially
espoused in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
is couched in the negative i.e. whether the decision reached at the
arbitration is one that could not reasonably be reached by
an
arbitrator. In other words this is a stricter test then simply asking
whether the decision is one that the arbitrator could
reasonably have
reached.
[33]
While it was argued by Ms. Oliver that even though material facts may
not have an impact on the outcome, a failure to take
these into
account by an arbitrator is a reviewable irregularity. In this regard
she referred to the decision of
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
,
[2009] 11BLLR 1128(LC). I disagree, and it is clear from the
Herholdt
case (
supra
)
and the subsequent case of
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[3]
‘…material errors of fact, as well as the weight and
relevance to be attached to particular facts are not in themselves
sufficient for an award to be set aside, but are only of consequence
if there effect is to render the outcome unreasonable’
[4]
.
[34]
The award of the Second Respondent contains a fairly detailed
recordal of the evidence placed before him and also contains
a clear
indication of the Second Respondent’s analysis of that
evidence. There is no basis to suggest that he failed to take
into
account relevant factual or evidentiary material that has impacted on
his award to the extent that it is so unreasonable that
it could not
reasonably be reached by any arbitrator.
[35]
If one examines the Second Respondent’s analysis of the
evidence rendered at the arbitration he has taken into account,
correctly so, the nature of the instruction given to the First
Respondent and his explanation for not complying with that
instruction.
From that explanation furnished by the First Respondent
it was reasonable for the Second Respondent to conclude that the
instruction
given by the Applicant was not reasonable or lawful,
particularly if one has regard to the provisions of the First
Respondent’s
contract of employment.
[36]
Even if there is some basis for suggesting that the First Respondent
had committed some misconduct, I would agree with the
Second
Respondent’s further observations that a sanction of dismissal
would not be appropriate having regard to the Code
Of Good Practice
in Schedule 8 of the LRA.
[37]
As far as the issue of compensation is concerned, the approach
adopted by the Second Respondent in determining compensation
is
reasonable and there is no basis to interfere with the quantum of the
Second Respondent’s award as well. In determining
quantum of
compensation Section 194(1) of the LRA gives the Second Respondent a
wide discretion. The First Respondent was dismissed
on the 17 January
2013 and the arbitration award was issued by the Second Respondent
some four months later during which period
the First Respondent
remained unemployed.
ORDER
[38]
I accordingly, make the following order:-
38.1The
Applicant’s application to review and set aside the arbitration
award made the Second Respondent in this matter is
dismissed;
38.2The
Applicant is ordered to pay the costs of the First Respondent in
respect of this review.
Lawrence
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:-
For
the Applicant: Ms Z. Oliver
Instructed
by: Lockhat & Associates
For the First
Respondent: Mr AP van der Westhuizen.
Instructed
by: Abdool Gaffoor Parasram & Associates
[1]
[2013]
11 BLLR 1074
(SCA); 2013(6) SA 224 (SCA)
[2]
2008
(2) SA 24 (CC)
[3]
(2014)
35
ILJ
243) (LAC).
[4]
[2013]
11 BLLR 1074
(SCA) at para 25.