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[2015] ZALCD 13
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Bravo Group Manufactures (Pty) Ltd v Subramoney NO and Others (D749/2013) [2015] ZALCD 13 (5 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
REASONS
FOR THE ORDER
Case
no.: D749/2013
DATE:
05 JANUARY 2015
NOT
REPORTABLE
In
the matter between:
BRAVO
GROUP MANUFACTURERS (PTY)
LTD
...................................................
Applicant
And
VINO
SUBRAMONEY
N.O
..........................................................................
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
.............................
Second
Respondent
AND
ARBITRATION
AZMATH
NABEE
BUKUS
..........................................................................
Third
Respondent
Heard:
12 September 2014
Order:
12 September 2014
Reasons:
January 2015
Summary:
Review — no case made to disturb award
REASONS
FOR THE ORDER
MOOKI
AJ
[1]
The court gave an order on 12 September 2014 dismissing the review
application. These are the reasons for the order.
[2]
The applicant employed the third respondent as a debtor’s
clerk. It dismissed the third respondent on 23 April 2013 on
two
charges, namely “gross insubordination – the refusal to
carry out a fair and reasonable instruction from a superior
and
“totally unacceptable work performance”. The Commissioner
gave an award that:
“
AWARD
41.
I find the dismissal of the Applicant substantively unfair and make
the following order:
42.
The respondent, Grafton Everest, is ordered to pay compensation to
the applicant, Azmath Nabee Bukus, in the amount of R70,240.
43.
The aforementioned amount must be paid to the Applicant within
fourteen (14) days of the Respondent being informed of or becoming
aware of this award.
44.
No order as to costs is made.”
[3]
The applicant contends that the award is reviewable because:
3.1
“By finding that the third respondent’s dismissal was
substantively unfair;
3.2
By finding that the instruction to the third respondent to follow up
with obtaining outstanding proof of delivery notes fell
outside of
the third respondent’s employment duties in circumstance (sic)
where the Commissioner found that:
“…
I
also accept that the following-up on PODs may be a debtor’s
function…”
3.3
By finding that the third respondent did not refuse to follow up with
obtaining outstanding proof of delivery notes;
3.4
By finding that the applicant was obliged not to comply with the
instruction to follow up with obtaining asked any proof of
delivery
notes.
3.5
By finding that the instruction to the third respondent to follow up
with obtaining outstanding proof of delivery notes “…
was unreasonable given the fact that the task allocated to the
applicant (third respondent) was not a once off event but likely
to
become a permanent element of his duties and workload from there on.”
3.6
By awarding the third respondent 10 months’ compensation.
[4]
The applicant addresses two aspects in its supplementary affidavit.
First, it sets out why the instruction was within the job
description
of the third respondent. Second, it sets out that the Commissioner
did not give reasons why she gave compensation for
10 months. The
applicant contends that the third respondent did not seek
reinstatement and that his loss was approximately three
months.
[5]
The review is ultimately on the bases that the Commissioner should
have found that the third respondent disobeyed an instruction
from a
superior and that the Commissioner ought not to have awarded
compensation equivalent to 10 months.
[6]
The applicant is silent on the second charge, namely “totally
unacceptable work performance”.
[7]
The Commissioner took the following evidence into account. The
applicant’s HR manager gave evidence that he (i.e. the
HR
manager) could not remember whose function it was to follow up on
proof of deliveries (“PODs”) and that the HR manager
stated could not comment when it was put to him that the function was
carried out by the credit controller in the past.
[8]
The HR manager, in his evidence, stated that a prior warning given to
the third respondent had no impact on the third respondent’s
dismissal and that the warning was to show the third respondent’s
insubordination. The HR manager did not dispute that the
third
respondent was told, during the disciplinary hearing, that he was
being dismissed because he had a final written warning.
[9]
The applicant’s debtor supervisor gave evidence that: thousands
of PODs were outstanding and that attending to them was
time-consuming; the follow-up of the PODs was done by the creditors’
staff but that three employees in debtors also did the
job; the
follow-up of PODs was a debtor function although everyone did that in
the past. The respondent wanted one person to do
the work, and that
she did not know the capabilities of the third respondent and wanted
the third respondent to do the work before
she could approach the
applicant’s financial director.
[10]
The chairman of the disciplinary enquiry denied taking a written
warning into account in recommending the dismissal of the
third
respondent. He admitted however under cross examination that the
final written warning was not the sole reason for his recommendation
that the third respondent be dismissed. He did not dispute that the
third respondent did not refuse the instruction but that the
third
respondent was awaiting feedback from the financial director.
[11]
The third respondent gave evidence that the debtor’s supervisor
approached him to take over the task of following-up
on PODs, which
was previously done by the creditors. The third respondent responded
by saying that it would be fair if he is remunerated
and that he was
being asked to do work that was previously done by someone else.
Doing the PODs would be twice the work he was
normally employed to
do. The debtor’s supervisor then indicated that she would speak
to the financial director and give feedback
to the third respondent.
[12]
The third respondent did not receive feedback following his
discussions with the debtor supervisor. He was instead served with
a
letter suspending him.
[13]
The Commissioner identified the issue for determination as the
substantive fairness of the dismissal of the third respondent.
He had
regard to the contention by the applicant that the third respondent
had repeatedly refused to carry out a fair and reasonable
instruction
from a supervisor by not following-up on outstanding PODs. The
Commissioner also had regard to the explanation by the
third
respondent that he (i.e. the third respondent) did not refuse to do
the work but felt that his salary package should be reviewed
because
he would be performing work that had been done by other staff for
years; that he had done work for the applicant in the
past that did
not fall within the ambit of his duties but was not recognised for
doing so.
[14]
The Commissioner determined that the evidence established that the
applicant wanted the third respondent to do work that had
been done
by other staff for the last seven years. He also had regard to the
evidence by the debtor supervisor that she decided
to put measures in
place specifically to address the outstanding PODs.
[15]
The Commissioner found that it was improbable that the third
respondent was asked to do work that was part of his duties or
that
the third respondent had been doing the work and had simply refused
the instruction. The Commissioner had regard to the evidence
by the
debtor’s supervisor that she first wanted the third respondent
to undertake the task of the PODs to decide whether
the third
respondent had the capability. The Commissioner found that it made no
sense for the debtor supervisor to speak to the
financial director to
review the third respondent’s remuneration if the third
respondent was already doing the POD follow-up.
[16]
The Commissioner found that the third respondent had compelling
reasons in hesitating to take on the tasks required of him.
He also
found that the third respondent did not flout the authority of the
applicant nor was the third respondent defiant: the
third respondent
was still engaging the applicant regarding the additional work
required of him at the time of his suspension.
He found that the
instruction was unreasonable absent consultation and agreement by the
third respondent because the third respondent
was not being asked to
undertake a once-off event, but that the applicant was requesting the
third respondent to undertake a task
that was likely to become a
permanent element to the third respondent’s duties and workload
henceforth. The Commissioner
also found that the particular offence
did not attract a sanction of dismissal as a matter of course.
[17]
The Commissioner, in dealing with relief, had regard to the fact that
the third respondent had been in service with the applicant
for 14
years and that the applicant did not seek reinstatement. He
determined that the circumstances were such that it was just
an
equitable to grant compensation equivalent to what the applicant
would have earned over a period of 10 months.
[18]
The applicant has not made out a case to disturb the award. It can
hardly be said, when taking into account the evidence before
the
Commissioner, the manner in which the Commissioner dealt with such
evidence (as illustrated by what the Commissioner says in
paragraph
38 of the award), that no reasonable decision-maker could not have
made such an award. The Commissioner explained that
the evidence
pointed to the fact that the applicant was being asked to take on
additional functions that had been done by other
employees.
[19]
The Commissioner determined that the applicant had not refused to
carry out the task required of him and that the third respondent
was
suspended and eventually dismissed whilst waiting to hear whether or
not he would be paid more for taking on the additional
task. The
Commissioner was of the view that the third respondent should have
been consulted on what he was being asked to do and
should have
agreed to that because what was asked of him was “…
likely to become a permanent element of his duties
and workload from
thereon”.
[20]
The criticism concerning compensation also lack merit. The
Commissioner had regard to the fact that the third respondent did
not
seek reinstatement and that he had been in service for 14 years. I do
not consider it necessary for the Commissioner to have
gone beyond
the bases that he gave in justifying the compensation. There is no
requirement that a Commissioner should give a detailed
account
justifying the particular compensation being awarded. It can hardly
be said that no other reasonable decision-maker could
not have given
the particular compensation having found the dismissal unfair and
where the employee, who had been in service for
a period of 14 years,
did not seek reinstatement.
O
Mooki
Judge
of the Labour Court (Acting)
APPEARANCES:
Applicant’s
Attorneys: Norton Rose Fulbright South Africa