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[2015] ZALCD 35
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NUMSA obo Jada and Another v Defy Refrigeration, A Division of Defy Appliances (Pty) Ltd and Others (D834/2009) [2015] ZALCD 35 (10 June 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
Not
Reportable
Case no: D834/2009
In
the matter between:
NUMSA
obo Z JADA & 1 OTHER
Applicant
and
DEFY
REFRIGERATION A DIVISION OF
DEFY
APPLIANCES (PTY) LTD
First Respondent
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
Second Respondent
NONHLANHLA
DUBAZANE N.O.
Third Respondent
Heard:
21 May 2015
Delivered:
10 June 2015
Summary:
review. Application dismissed.
JUDGMENT
GUSH J
[1]
This is an application
to review and set aside the award of the third respondent under case
number MEKN 3708 dated 10 September
2009 in which award, the third
respondent concluded that the dismissal of the applicant’s
members Jada and Nxumalo was substantively
fair but procedurally
unfair. The third respondent ordered the first respondent to pay Jada
and Nxumalo compensation. The applicant
applies for this order to be
substituted with a “declaration that the dismissal of the
individual applicants was both procedurally
and substantively unfair”
and that they be retrospectively reinstated.
[2]
The application is
opposed by the first respondent.
[3]
The applicant’s
members’ Zada and Nxumalo on whose behalf this application was
brought, (hereafter referred to as the
employees) dismissal arose
from an incident which took place on 16 January 2009 when the
employees together with a number of their
colleagues embarked on a
work stoppage. The employees were charged with disruptive behaviour
and participation in an unprotected
strike and, after a disciplinary
enquiry, were found guilty of the misconduct and dismissed.
[4]
The first respondent
had, prior to the incident on 16 January 2009, on 15 September 2008,
issued the employees with a final written
warning and one-month
suspension “without pay from 8 September 2008 to 3 October 2008
– warning valid for one year”.
This warning was issued as
a result of had an incident which had taken place on 2 September
2008. The employee’s conduct
during this incident had led to
them being charged with disruptive behaviour and causing a work
stoppage. The employees were found
guilty of this misconduct and
issued with a warning referred to above.
[5]
The warning and the
suspension without pay was not challenged by the applicant or the
employees at the time and it appears that
the first respondent gave
effect to the suspension.
[6]
The applicant in
support of its application raised in its founding affidavit the
following grounds of review:
a.
an “irregularity
by the third respondent in finding that the dismissal was
substantively fair, plus minus 250 employees were
on strike”
and only the employees were dismissed;
b.
“
the third
respondent committed an irregularity by failing to take into account
important evidence by the applicant’s witnesses
that nothing
was done with the rest of the striking employees including the shop
stewards who gave evidence in the arbitration
hearing” and in
particular evidence regarding consistency in that the applicant
disputed that warnings had been issued to
the other striking
employees;
c.
“
third respondent
further committed an irregularity by not understanding her duty as a
Commissioner which is that she is required
to take into account
schedule 8 of the Code of Good Practice in determining whether
dismissal is substantively fair and among other
things is whether the
rule is consistently applied” and
d.
Alternatively that the
third respondent failed to award proper compensation.
[7]
The applicant’s
founding affidavit concludes by reserving its rights to amplify the
affidavit once the record becomes available.
Despite this, having
made the record available, the applicant filed a notice in terms of
rule 7A(8)(b) of the Rules of the Labour
Court recording that it
stood by the notice of motion and filed no further amplification.
[8]
At the commencement of
argument, Mr Crampton who appeared for the applicant indicated that
he did not intend relying on the grounds
of review set out in the
founding affidavit or in the heads of argument filed on behalf the
applicant that intended relying solely
on the following ground of
review:
That the award of the
third respondent was reviewable by virtue of the third respondent’s
refusal to allow the parties to
engage in an enquiry into the
fairness of the prior final written warning issued to the employees
during September 2008.
[9]
This
ground of review does not form part of the applicant’s founding
affidavit and was not raised in the heads of argument
filed on behalf
the applicant. There is ample authority for the “principle that
a litigant cannot seek to introduce a new
ground for review having
failed to do so in the founding or supplementary papers”.
[1]
On this ground alone the applicant’s application cannot
succeed.
[10]
As this issue was
raised only on the day the matter was heard, I have allowed the
parties an opportunity to submit further written
argument and/or
authority for the proposition advanced by Mr Crampton that it was a
reviewable irregularity on the part of the
third respondent to refuse
to enter into an enquiry into the fairness of the prior warning.
[11]
Mr
Crampton referred to the matter of
Changula
v Bell Equipment
.
[2]
Mr Crampton submitted that in this matter, the court had held that an
employer in dismissing the employee on the strength of a
prior
warning was wrong “in concluding that, because the employee had
acquiesced in the final warning, no further regard
need have been
given to the circumstances which gave rise to it …”
[3]
.(sic)
[12]
It
is important to record however that the court in
Changula
continued
to state that “it must be emphasised that it is not intended in
this judgment to lay down a general rule that employers
when
disciplining employees must reopen and reconsider previous
disciplinary cases against the employee”.
[4]
[13]
The circumstances of
the prior warning in the
Changula
matter are distinguishable from this matter in that Changula had been
dismissed in circumstances
inter-alia
where the chairperson of the enquiry held that:
‘
In looking
at your previous record I find that you had a final warning on file
given to you on 27 January. This time you are cautioned
that any
further contribution (sic) would result in your dismissal. Taking
this into account that they warning for any offence
is a warning for
defences I have no option but to dismiss you.’
[5]
[14]
The
court recorded that “the main flaw in this approach is the
elevation of the disciplinary code to and immutable set of
commandments which have to be slavishly adhered to.”
[6]
This, as is set out below, is in stark contrast to the factors taken
into account by the first respondent in imposing the sanction
of
dismissal and the third respondent in this matter in determining the
appropriateness of the sanction.
[15]
Apart from this it is
unclear from the record and the exchange between the applicant’s
representative at the arbitration and
the third respondent what
exactly the applicant’s representative was challenging. The
explanation may lie in the fact that
when the arbitration commenced
on 5 May 2009, the applicant was represented by a Mr Mashego, who did
not challenge the prior written
warning and a Mr Tisako who when the
arbitration resumed on 23 June 2009 represented the applicant and the
employees.
[16]
The
applicant’s representative Tisako repeatedly stated that he was
not challenging the final written warning: “what
I am saying
Madam Commissioner, we are not challenging. Let me be clear and let
me repeat many times we are not challenging the
final written
warning. … because evidence that led to that is what we are
challenging. The evidence, just presented evidence
that is that
evidence the one that we are challenging. If they did present the
evidence then obviously we would challenge that
one. … I am
saying that we are not challenging the warning, Madam Commissioner,
we are challenging the evidence that has
been presented, that’s
all”.
[7]
[17]
It appears from the
record that what Tisako was challenging was the evidence that had
been presented on the previous occasion when
he was not present.
[18]
There is nothing to
suggest in the record or the award that either the first or third
respondent relied slavishly on the prior final
warning. In the award,
the third respondent, in determining whether dismissal was the
appropriate sanction took into account in
some detail a number of
factors including the final warning, the employee’s length of
service and the circumstances surrounding
the misconduct.
[19]
In any event, in the
absence of this ground of review being included in the pleadings and
for the reasons mentioned above, I am
not persuaded that the award of
the third respondent is reviewable. As far as costs are concerned and
specifically given that the
applicant only raised this ground of
review at the commencement of the hearing, it is appropriate that
costs should follow the
result.
[20]
In the circumstances, I
make the following order:
The applicant’s
application is dismissed with costs
D H Gush
Judge of the Labour Court
of South Africa Johannesburg
APPEARANCES:
FOR THE
APPLICANT:
Adv
D Crampton instructed by Brett Purdon Attorneys
FOR
THE RESPONDENT:
R Pemberton Garlicke and Bousefield
Attorneys
[1]
Northam Platinum Ltd v
Fganygo NO and Others
(2010) 31 ILJ 713(LC) at p 720. See also
Director
of Hospital Services v Mistry
1979 (1) SA 626
(A);
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011) 32 ILJ 730 (LC) and
De Beer v Minister of Safety &
Security and Another
(2011) 32 ILJ 2506 (LC).
[2]
(1992) 13 ILJ 101 (LAC).
[3]
At page 110.
[4]
Also at page 110.
[5]
At page 109.
[6]
At page 109.
[7]
Record page 38.