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[2016] ZALCJHB 28
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Char Trade 117 CC t/a Ace Packaging v Kloppers And Others (JR2198/13) [2016] ZALCJHB 28 (1 January 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
Number: JR2198/13
In
the matter between:
CHAR TRADE 117
CC t/a ACE PACKAGING
Applicant
And
ROSELINE
KLOPPERS
First Respondent
BONGANI KHUMALO
N.O.
Second
Respondent
CCMA Third
Respondent
Date
heard: 2 September 2015
Delivered:
1 February 2016
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review and set aside an arbitration
award under case number GAJB11204-13 in which the third
respondent
(the Commissioner) found the dismissal of the first respondent
(Kloppers) to have been procedurally and substantively
unfair. He
order the applicant to pay her compensation equivalent to 12 months
compensation.
[2]
Kloppers was employed by the applicant from 1 November 2007 as an
Area Sales Manager and earned R32,000.00 a month. On the 9
April
2013, she was suspended and summoned to attend a disciplinary hearing
in consequence of her conduct at a dinner party hosted
by the
applicant for some of its clients. In an email dated 9 April 2013, it
was recorded that she was charged with “bringing
the companies
(sic) name into disrepute by dancing on the tables and general
disorderly behaviour”.
[3]
On the 17 April 2013 she received the charge sheet which listed the
following charges:
1)
Not complying with a lawful and reasonable instruction
2)
Bringing the companies name into disrepute
3)
Jeopardizing the business with its clients
4)
Behaving in a manner that is not appropriate
5)
Breach of company policies and procedures
6)
Conduct unbecoming an employee of the
company
7)
Breaking down the trust relationship between
employer and employee
[4]
The disciplinary chairperson found her guilty of bringing the name of
the applicant into disrepute. She was dismissed on 26
April 2013. In
his finding he stated that:
“
The
accused is the area sales manager of the company and part of her work
is to entertain clients in order to maintain a good relationship.
It
is also common knowledge that the accused is a “party animal”
and likes to stay until the end when entertaining
clients. In the
past the Company has gone all out to entertain clients, even paying
for some client’s overnight accommodation
on occasion.
However
the Company has had a major shift in culture due to prevailing
circumstances and maintaining a professional image with its
clients.
During this particular social event the behaviour of the accused was
less than acceptable and in bad taste. The accused
was and is aware
of the shift in culture and should have exercised some caution and
restraint. For me to refer to the CCTV footage
it is clear that the
employee attempted to get onto the table on a few occasions (and did
so very briefly) and by doing this has
offended some clients.
Although another customer was dancing on the table he does not work
for the company and therefore is not
bound by its code of behaviour.
Furthermore
the CCTV footage clearly shows the accused “enjoying herself”
when her focus should have been with her own
customers and focusing
on her own behaviour Although it seems that some customers were
enjoying themselves it is clear that some
others found her behaviour
unacceptable to the extent that the Company may lose those customers.
To now take this one step further
the employer received a letter of
apology from the accused clearly indicating, and by her own admission
that she understood that
her behaviour was unacceptable and
offensive.
The
CCTV says it all. The accused did not act in a manner that could be
construed as restrained, professional or even acceptable.”
[5]
The letter written by Kloppers included the following paragraphs:
“
I
was very surprised by the charge that I failed to comply with a
lawful instruction I was not given any instruction before, during
or
after the function on Saturday. I only pretended that I was going to
dance on the table but everyone that was present knows
that I did not
do so, and certainly not on a number of tables.
It
is now clear to me that my stringent diet and exercise program
impacted on my tolerance for liquor. I want to sincerely apologise
if
my behaviour was inappropriate. I love the company and not do
anything to bring them into disrepute…….
As
a company we have a reputation for entertaining customers at the
trade show. We are known for having fun whenever there is a
function
and are often referred to as “the hooligans” We were all
once banned from a hotel because of our behaviour
as a company. In
some instances we even paid for customers and reps to stay over night
in the hotel because they were too intoxicated
to drive home. This
always used to be a big laugh for weeks after the trade show.
I
realised during the evening that the alcohol was having an impact on
me and when Annerette offered me an Ouzo I refused it and
had a piece
of baklava instead to try and settle my stomach. I cannot stress
enough how sorry I am and pray that I can be forgiven
for my
behaviour…”
[6]
The charge of disobeying a lawful instruction was not proceeded with
by applicant. In as far the Commissioner’s finding
on
substantive fairness is concerned, the applicant submits it stands to
be reviewed in that the Commissioner misconstrued the
nature of the
enquiry before him. Instead of focussing on the charge for which
Kloppers was dismissed i.e. that she brought the
name of the company
into disrepute, he found her dismissal substantively unfair because
she did not dance on the tables. The award
records:
“
[20]……I
find that it was undisputed and unchallenged that the Applicant did
not dance on the tables. I accept that
even the video footage does
not show the Applicant dancing on the tables. The Respondent’s
witnesses cumulatively supported
Applicant’s defence that she
did not dance on the tables. It is common cause that the applicant
was not charged for putting
her foot on the table. It is trite law
that the Respondent cannot dismiss the Applicant for a specific
reason at the company and
rely on a different reason at the CCMA to
justify the dismissal. I accept the uncontroverted evidence of the
Applicant that no
rule, policy or procedure exists at the employer’s
workplace to regulate the alleged “disorderly behaviour’.
No piece of documentary evidence except unsupported personal
sentiments by the Respondent’s witnesses was tendered at the
arbitration.
[21]
The fact that the company allowed a full bar to operate on the
company premises is relevant to the question whether dismissal
was
fair. The evidence shows that the company’s approach to
alcohol, entertainment is inconsistent and ‘conduct’
towards it customers is also ambiguous. On the one had it provided
alcohol on company premises and at its functions during working
hours
and, on the other hand, the company even paid for hotel accommodation
for staff and clients who are extremely intoxicated
to a point of
being unable to drive home. Deon’s purported change in this
culture is neither documented nor known even by
himself as to when
was it conveyed to staff members. This flies in the face of the LRA
that a rule must be known and valid. On
the undisputed facts I find
that the Applicant was not, at any rate, charged for excessive
consumption of alcohol. It overwhelmingly
counts against the
Respondent that it removed from the charge sheet the alleged
non-compliance with a lawful instruction which
allegedly was
challenging the failure of the Applicant to lead by example.
[22]
My view is not different from that of the Applicant that no standard
or policy required her to behave in accordance with any
code of
behaviour and that no such purported standard or policy was breached.
Material concessions were drawn both in chief and
in
cross-examination from the Respondent’s witnesses that(1) the
Applicant did not dance on the table (ii) they were personally
excessively drunk pursuant to the existing practice and (iii) they
even slept at the hotel at their own expense as they were too
drunk
to drive home. For this reason alone I find that the Respondent was
lax in regulating the expected behaviour, if any, at
its functions
and the consumption of alcohol. I found the Applicant to be a
satisfactory witness who made no attempt to evade ‘trick’
questions put to her in cross-examination by Adv. Driver. All things
considered I would favour Rosaline’s version over that
of the
Respondent a finding which puts pay to the sole ‘charge’
proffered against the Applicant on the merits of this
matter.”
[7]
The applicant submits that the above reflects that the Commissioner
failed to grasp what Kloppers was actually dismissed for.
I cannot
agree. The Commissioner has rather considered whether the specific
allegation against Kloppers i.e. that she danced on
the tables (which
allegedly brought the company into disrepute) had been proved. The
record of the proceedings reflects that the
applicant’s General
Manager, Mr Korff, both in chief and under cross-examination, stated
that the charges against her related
to her allegedly dancing on the
tables – under cross-examination he conceded that the charges
‘strictly’ related
to this. In such circumstances, the
Commissioner’s emphasis on this alleged conduct when
considering whether her dismissal
was substantively fair, and the
outcome of his award on this leg, is well within the bounds of
reasonableness
[8]
It was alleged on behalf of Kloppers at arbitration, that the
Chairperson of the disciplinary hearing was biased and that although
Kloppers lodged an appeal, this was not entertained because according
to the applicant no new evidence was proffered for doing
so. The
Commissioner’s finding on procedural fairness is contained in
paragraph 19 of the Award as follows:
“
While
it is correct that the LRA guidelines on fair procedure do not
require the inclusion of such a right
[1]
,
once it is conferred it should be observed by the Respondent. This
procedural challenge must succeed I am persuaded that the chairperson
was biased in that he gave unfair preference to the employer thus he
cause direct or indirect prejudice to the employee. To cite
but few
examples, the DVD proved that the Applicant did not dance on the
table in a provocative manner but the chairperson found
her guilty as
charged. It was undisputed that the chairperson rendered labour
management services to the Respondent and also participated
in
Thursday drinking spree but she continued to chair the enquiry, the
chairperson found the Applicant guilty on written emails
by three
people who were not present at the hearing to be cross examined on
their declarations, the chairperson made his findings
on wild,
far-fetched and unsupported allegations that the Applicant was a
‘party animal’ and the chairperson on alleged
customers
complaints which were not tested. This procedural challenge must also
succeed.”
[9]
The Commissioner did not approach the issue of alleged ‘bias’
by applying the correct test in law to such an enquiry
i.e. whether a
reasonable, objective and informed person would, on the correct
facts, reasonably apprehend bias.
[2]
Kloppers evidence on the issue of bias was to the effect that she
believed he was biased because after seeing footage that
showed that
she had not danced on the tables, the chairperson still dismissed
her. The factors listed by the Commissioner to substantiate
his
finding on the issue of bias are no more than an opinion that the
Chairperson got it wrong. Kloppers did cross-examine the
company’s
witness at the disciplinary hearing. That the Chairperson was a
member of the company’s employer’s
association cannot be
considered out of the norm. In addition Kloppers did not bring forth
new evidence in respect of the appeal,
rather she wanted to raise
evidence which she had not done but which she was aware of, at the
hearing.
[10]
The procedural fairness requirements of the LRA require the
satisfaction of the
audi
alteram partem
principle
and the rule against bias.
[3]
I
find that the decision of the Commissioner, that these were not met
to be one that a reasonable Commissioner could not make.
[11]
The compensation ordered by the Commissioner was considered by him to
be just and equitable in the circumstances of a procedurally
and
substantively unfair dismissal. In the circumstances, in substituting
his award, I take this into consideration. Given that
the applicant
has partially succeeded, I make no order as to costs.
Order
1.
The award under case number GAJB11204-13 is reviewed and set aside
and substituted as follows:
1.1
The dismissal of Rosline Kloppers was substantively unfair;
1.2
The applicant is ordered to pay Kloppers compensation in an amount
equivalent to 6 months salary, being R192,000.00
________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
MA Wesley and
JK Driver
Instructed
by:
Lagoudis Lamberti Attorneys
First
Respondent: Lee and McAdam Attorneys
[1]
i.e.
to an appeal
[2]
Sasol
Infrachem v Sefafe & others
(2015) 36 ILJ 655 (LAC) at para 48
[3]
Chirwa
v Transnet Ltd & others
[2007] ZACC 23
;
2008 (4) SA 367
(CC); (2008) 29 ILJ 73 (CC) at para 42