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[2016] ZALCJHB 64
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IBM South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR66/2014, J93/14) [2016] ZALCJHB 64 (26 February 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not reportable
Case no: JR 66/2014
J 93/14
In the
matter between:
IBM
SOUTH AFRICA (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
MBONGENI
MOTSOENENG
N.O
Second Respondent
FREDERICK SAMUEL
MOSS
Third
Respondent
Heard:
27 January 2016
Delivered:
26 February 2016
Summary:
Review application. Arbitrator failed to consider factors he was
required to and ignored relevant and material evidence.
Award is
reviewed and set aside.
JUDGMENT
PRINSLOO J.
Introduction
[1]
The Applicant seeks to review
and set aside an arbitration award issued by the Second Respondent
(‘arbitrator’) on 9
December 2013 under case number
GAJB6804-13. The arbitrator found the Third Respondent’s
(‘Moss’) dismissal procedurally
fair but substantively
unfair and ordered the Applicant to reinstate him on the same terms
and conditions of employment that existed
prior to his dismissal.
[2]
The Third Respondent opposed
the application.
[3]
Moss
also filed an application in terms of the provisions of section
158(1)(c) of the Labour Relations Act
[1]
for the arbitration award issued on 9 December 2013 to be made an
order of court.
[4]
I will first deal with the
application for review. If the application for review succeeds, there
will be no need to consider the
section 158(1)(c) application.
Background
facts
[5]
The background facts are
herewith summarised as follows:
[6]
The Applicant employed Moss
during July 2006 and he was stationed at the Applicant’s
offices at IBM Park, Sandown. On 5 October
2011 Moss addressed a
letter to Mr Castle wherein he requested assistance from his employer
regarding a crisis situation he found
himself in. His situation was
described as that his life partner was hospitalised and he had to
take care of their two-year old
daughter. Moss explained that he
explored alternative options for someone else to take care of the
child but that he could not
find any viable alternatives and that is
life partner might have been hospitalised for an indefinite period.
Moss appealed to his
employer to allow him to work from his home in
Kimberley during this time or to bring his daughter to work. The
Applicant does
not have offices in Kimberley.
[7]
On 20 October 2011 the
Applicant granted Moss permission to work from home for a period of
two weeks commencing on 20 October 2011.
The Applicant confirmed the
arrangement and activated the remote access procedures to enable Moss
to work from home. Although Moss
was granted permission to work from
his home in Kimberley for a period of two weeks, commencing on 20
October 2011, this arrangement
endured uninterrupted for a period of
eight months.
[8]
In the period of eight months
Moss’ manager, Mr Narsai, identified certain work performance
issues that required the initiation
of a performance improvement plan
(PIP). During June 2012 Mr Bhaga replaced Mr Narsai as Moss’
manager and the performance
issues identified by Mr Narsai were
communicated to Mr Bhaga. On 3 July 2012 Mr Bhaga contacted Moss and
informed him that he had
to report at the Applicant’s office.
[9]
On 12 July 2012 Mr Bhaga sent
an electronic mail to Moss setting out that although the Applicant
understood Moss’ personal
situation, those were not acceptable
reasons for failing to physically report for duty as the Applicant
required him to be present
at the office to perform duties. Moss was
also informed that the PIP should be held on a face to face and
should be done weekly.
It was made clear to Moss that he was required
to be back in the office and report for duty by 9h00 on 30 July 2012.
The date Moss
was required to report for duty was 18 days from the
date of the electronic mail.
[10]
On 30 July 2012 Moss did not
report for work as he was instructed to do on 12 July 2012 but
reported that he was sick from 30 July
2012 until 1 August 2012. A
meeting was however held on 2 August 2012 at the Applicant’s
offices during which meeting Moss
proposed that he work three weeks
from his home in Kimberley and one week at the Applicant’s
offices. The Applicant on the
other hand indicated that it was
willing to accommodate Moss’ circumstances, as it had done in
the past, but that was subject
to the Applicant’s business
requirements. The Applicant offered Moss six months unpaid leave to
allow him an opportunity
to address personal problems. The Applicant
reiterated during this meeting that it had been more than
understanding and that Moss
needed to be present at the Applicant’s
offices. Moss was given four days to make the necessary arrangements
and he was expected
to be present at the Applicant’s offices on
7 August 2012.
[11]
At some point the Applicant
received a letter from FAMSA Kimberley wherein it was stated that
Moss was receiving marriage counselling
and that his life partner
would join future sessions during July 2012. The letter was dated 9
July 2012 and requested the Applicant
transfer Moss to Kimberley for
a period of six months so that the couple could receive the necessary
intervention to rebuild their
relationship.
[12]
On 7 August 2012 Moss did not
report for duty at the Applicant’s office and instead he sent
an electronic mail to the Applicant
wherein he rejected the option of
taking six months unpaid leave and reporting for work at the
Applicant’s offices. He explained
that the situation at home
didn’t change and that he did not have adequate time for
adjustment and requested leave until
17 August 2012. The Applicant
granted Moss annual leave for the period 8 – 17 August 2012.
Moss was however advised that
he was expected to report for duty at
the Applicant’s offices on 20 August 2012. Moss accepted this
arrangement.
[13]
On 20 August 2012 Moss did not
report for duty but instead took sick leave until 13 September 2012.
On 14 September 2012 Moss did
not report for duty as the Applicant
expected he would do after his sick leave. Moss said that the reason
why he failed to report
for duty was because his car’s licence
expired and he undertook to report for duty at the Applicant’s
offices on 17
September 2012.
[14]
On 17 September 2012 Moss once
again failed to report for duty and advised the Applicant that he
would report for duty on 18 September
2012. On 18 September 2012 Moss
reported for duty and he met with Mr Bhaga. During this meeting Moss
confirmed that he would report
for duty at the Applicant’s
offices in future, Mr Bhaga advised him that the PIP would commence
on 25 September 2012 and
that the Applicant would consider the
feasibility of allowing Moss to return to Kimberley on a bi-monthly
basis for purposes of
attending counselling sessions in Kimberley.
[15]
From 1 to 17 October 2012 Moss
did not report for duty and on 18 October 2012 a registered letter
was sent to Moss requesting him
to report for duty on 22 October
2012.
[16]
On 22 October 2012 Moss once
again failed to report for duty and on 23 October 2012 he was issued
with an ultimatum giving him until
25 October 2012 to report for duty
failing which he would be deemed to have absconded. On 25 October
2012 Moss reported for duty
at the Applicant’s offices and a
meeting was held to discuss Moss’ unauthorised absenteeism.
Moss explained that he
was absent from 1 to 24 October 2012 as a
result of car trouble. The Applicant made it clear that the period 1
- 24 October 2012
constituted unauthorised absenteeism as no leave
request was submitted or approved.
[17]
On 8 November 2012 the
Applicant issued Moss with a final written warning for unauthorised
absenteeism and it was made clear that
Moss was to report for duty
daily and that he was not to work from home unless prior approval was
obtained from his superiors.
The final written warning was valid for
a period of 12 months and stated expressly if the same or similar
misconduct is committed
during the period of the warning, more severe
disciplinary action, which may include dismissal, would be taken.
[18]
Moss failed to report for duty
from 7- 23 January 2013 and also on 28 January 2013. On 1 February
2014 Moss was issued with a notice
to attend a disciplinary hearing
and the charge levelled against Moss related to unauthorised
absenteeism for the period 7-23 January
and 28 January 2013. The
disciplinary enquiry was scheduled for 8 February 2013.
[19]
Moss was dismissed on 12
February 2013 after he was found guilty of unauthorised absenteeism.
[20]
Moss subsequently referred and
unfair dismissal dispute to the First Respondent (CCMA), claiming
that his dismissal was both substantively
and procedurally unfair.
The issue that was to be decided was whether the dismissal was indeed
fair.
[21]
The background facts are
common cause between the parties.
The
arbitration proceedings:
[22]
It is evident from the
transcribed record that at the commencement of the arbitration
proceedings the arbitrator dealt with the
challenges to the fairness
of Moss’ dismissal effectively and he limited the issues
significantly. On procedural fairness
the only issue that remained
was that the chairperson of the disciplinary hearing was biased. On
substantive fairness Moss conceded
that the charge was that he was on
unauthorised leave, that there is a rule that leave must be granted
before an employee may take
leave, that the rule is reasonable and
that it is consistently applied. Moss disputed that he breached the
rule in that he was
not on unauthorised leave and that dismissal was
an appropriate sanction. The issues to be decided were limited to
whether Moss
was indeed absent without permission from 7 – 23
January and 28 January 2013 and the appropriateness of the sanction
of dismissal.
[23]
The arbitrator found Moss’
dismissal procedurally fair and that finding is not challenged. It is
therefore not necessary to
consider the evidence and findings on
procedural fairness.
[24]
Mr Bhaga testified that Moss
reported to him and his evidence reflected the background already set
out
supra
and does not need to be repeated.
[25]
His evidence was that the
Applicant has a ‘Flexible Working Policy’ in place that
allows employees flexible working
conditions, including to work from
home, subject to a specified process. The process included a
discussion between the employee
and manager to decide the feasibility
of a flexible working environment. The approval of management was
always required. The Applicant’s
case is that although other
employees were permitted to work from home, they did not have poor
performance issues.
[26]
On 20 October 2011 Moss was
granted two weeks to work from home and in July 2012 it was
communicated to Moss that despite the previous
arrangement, he had to
report for work at the Applicant’s offices. He testified that
the performance of Moss had been below
the required standard and that
he had to be subjected to a performance improvement plan which could
not be done remotely. The reason
was that there had to be weekly
meetings, daily forecasts and tracking of how the employee on the PIP
was doing and this could
not be done remotely. The fact that Moss had
to be on a PIP required of him to be in the office.
[27]
Mr Bhaga testified that Moss
agreed to make arrangements for accommodation in Johannesburg and
that he would be available at the
Johannesburg office going forward
as he agreed that his PIP would start on 25 September 2012.
[28]
The transcribed record shows
that in cross-examination Mr Bhaga was challenged on almost
everything but the reason why Moss was
dismissed. Not a single
question or proposition was posed relating to his absence in January
2013 and the fairness of his dismissal.
[29]
Moss testified that he was
employed in July 2006 as a computer operator and at the time of his
dismissal he held the position of
database administrator. He
confirmed that he had personal problems and that he requested leave
to attend to his problems. Mr Castle
granted him two weeks and when
his problems were not resolved, he took a further eight months. As
from July 2012 Mr Bhaga became
his line manager and started to
reprimand him and to raise performance issues with him. He testified
that his problems were not
resolved and he requested to work from
home for a further period, which was refused. Moss’ case is
that he was the only one
in his department that was refused to work
from home. He agreed that a manager has a discretion to allow an
employee to work from
home but he insisted that in his case the
discretion was not fairly exercised. Despite the fact that the
Applicant granted him
the opportunity to work from home for a period
of eight months, he was of the view that he was not accommodated. He
knew that Mr
Bhaga wanted him to report for duty at the office and
that he wanted to initiate a performance improvement plan but he
insisted
that there was no provision in the policy that required a
performance improvement plan to be done in the office.
Analysis
of the arbitrator’s findings and the grounds for review
[30]
The arbitrator found Moss’
dismissal procedurally fair but substantively unfair and ordered his
retrospective reinstatement.
As already stated for purposes of this
review application it is not necessary to consider the findings on
procedural fairness.
[31]
In respect of substantive
fairness the arbitrator set out that he had to decide whether or not
it was a breach of the rule when
Moss was absent from work without
permission from 7 – 23 to 23 January 2013 and whether such
dismissal was appropriate in
the circumstances. The arbitrator
accepted that Moss was not at work for that period and that such
non-reporting was unauthorised
and he accepted that Moss indeed
breached the rule. Having found that, the arbitrator was left to
decide whether or not dismissal
was an appropriate sanction.
[32]
The arbitrator observed that
much of the evidence led during the arbitration related to dates
prior to the dates of the misconduct.
This observation is indeed
correct.
[33]
The arbitrator further
considered that Moss was issued a final written warning for
unauthorised absence prior to 7 January 2013
and that such warning
was still valid at the time the decision was taken to dismiss Moss.
[34]
The arbitrator accepted that
Moss was initially granted two weeks to work from home to resolve his
personal problems and that the
applicant has tacitly agreed and
condoned the period to extend to 8 months. The position only changed
when Mr Bhaga assumed managerial
responsibility over Moss and within
two months of managing Moss, Mr Bhaga issued him with a final written
warning, despite the
fact that the Applicant allowed and agreed to
Moss working remotely from home. The arbitrator accepted that Moss
was not required
to be at work physically and that his duties could
be performed remotely and that his labour potential was always at the
Applicant’s
disposal. The arbitrator rejected the notion that
Moss was accommodated because he had always been rendering his
services save
when Mr Bhaga issued an instruction that he should not
be allocated any work. The only basis the arbitrator would accept
that Moss
was accommodated, would have been if he did not render any
services to the Applicant for a long period and despite that, the
Applicant
kept his position available and paid him a salary and he
found that the Applicant, without justification, rejected Moss’
proposal to work three weeks from home and one week in the office and
the only accommodation was a proposal of six months unpaid
leave.
[35]
The arbitrator was not called
upon to determine a performance dispute and well aware of that, he
nonetheless dealt with the issue
and found that there were no real
issues of poor performance.
[36]
The arbitrator found that the
Applicant has not discharged its onus in terms of section 192(2) of
the Act and that the dismissal
was unfair and the sanction of
dismissal too harsh. In considering the appropriateness of the
sanction, the arbitrator considered
the following factors: how the
warning came about, the fact that Mr Bhaga had not established if
Moss’ circumstances changed
at the time the charges were
formulated, the option of six months unpaid leave would have
compounded Moss’ problems rather
than solve them, the eight
months granted to Moss was not accommodating Moss as he had been
working and the Applicant was not prejudiced,
the proposal Moss put
forward
to work three
weeks from home and one week in the office was rejected unreasonably
as performance management could still be done
online and face to face
in the week Moss would be in the office, other employees who work
remotely are performance managed and
the Applicant agreed to remote
working in the preceding eight months.
[37]
It is these findings the
Applicant seeks to review. The Applicant’s case is that the
decision reached is neither rational
nor reasonable.
[38]
The Applicant raised four
grounds for review. Those are:
a. The
arbitrator’s finding that there was a tacit agreement that Moss
could work remotely from his home in Kimberley
was not supported by
evidence and demonstrates a failure to consider relevant evidence;
b. The
arbitrator’s finding that Moss was substantively unfairly
dismissed on the basis that Mr Bhaga
had not established if
Moss’ circumstances changed at the time the charges were
formulated, the option of six months unpaid
leave would have
compounded Moss’ problems and the eight months granted to Moss
was not accommodating Moss as he had been
working and the Applicant
was not prejudiced, placed too onerous an obligation on an employer
to accommodate an employee and failed
to take cognisance of an
employer’s right to determine how best to manage its business
and the evidence led;
c. The
arbitrator’s finding that Moss’ proposal to work three
weeks from home and one week in the
office was rejected unreasonably
as performance management could still be done online and face to face
in the week Moss would be
in the office demonstrates that the
arbitrator found the only relevant consideration regarding Moss
working from home was the manner
in which the PIP could possibly be
conducted and this demonstrates the failure to consider evidence;
d.
The arbitrator’s finding that
other
employees who work remotely are performance managed on line and in
finding as aforesaid, the arbitrator misconstrued the evidence
that
was before him and made assumptions not supported by evidence.
[39]
In my view there are two main
grounds for review. The first main ground for review relates to the
manner in which the arbitrator
dealt with the evidence that was
before him, how he assessed and understood the evidence and the
findings he made based on the
evidence. The second main ground for
review relates to the arbitrator’s assessment of the
appropriateness of the sanction
of dismissal.
The test
on review
[40]
The
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable has been rehashed innumerable times
since
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
as whether the decision reached by the arbitrator is one that a
reasonable decision maker could not reached. The Constitutional
Court
very clearly held that the arbitrator's conclusion must fall within a
range of decisions that a reasonable decision maker
could make.
[41]
In
Goldfields
Mining South Africa v Moreki
[3]
the
Labour Appeal Court held that:
“
In
short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is
reasonable.”
[42]
Following
the Supreme Court of Appeal judgment in
Herholdt
[4]
and the Labour Appeal Court’s judgment in
Gold
Fields
,
[5]
the Labour Appeal Court handed down another important judgment in
Head
of the Department of Education v Mofokeng.
[6]
In
this judgment the Court provided the following exposition of
the review test:
“
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will
ex
hypothesi
be material to the
determination of the dispute. A material error of this order would
point to at least a
prima facie
unreasonable result.
The reviewing judge must
then have regard to the general nature of the decision in issue; the
range of relevant factors informing
the decision; the nature of the
competing interests impacted upon by the decision; and then ask
whether a reasonable equilibrium
has been struck in accordance with
the objects of the LRA. Provided the right question was asked and
answered by the arbitrator,
a wrong answer will not necessarily be
unreasonable. By the same token, an irregularity or error material to
the determination
of the dispute may constitute a misconception of
the nature of the enquiry so as to lead to no fair trial of the
issues, with the
result that the award may be set aside on that
ground alone. The arbitrator however must be shown to have diverted
from the correct
path in the conduct of the arbitration and as a
result failed to address the question raised for
determination".
[43]
This
dictum
in
Mofokeng
was further interpreted and in
Shoprite
Checkers v CCMA and others
[7]
this
Court considered the guidance
Mofokeng
provides
for determining when the failure by an arbitrator to consider facts
will be reviewable. The Court accepted the following
mode of
analysis:
a. the first
enquiry is whether the facts ignored were
material
, which will
be the case if a consideration of them would (on the probabilities)
have caused the commissioner to come to a different
result;
b.
if this is established, the (objectively wrong) result arrived at by
the commissioner is
prima
facie
unreasonable;
c.
a second enquiry must then be embarked upon – it being whether
there exists a basis in the evidence overall to displace
the
prima
facie
case of
unreasonableness; and
b. if the
answer to this enquiry is in the negative, then the award stands to
be set aside on review on the grounds of unreasonableness
(and
vice
versa
).
[44]
In
summary: Where it is alleged in review proceedings that an arbitrator
ignored certain material facts, the enquiry is whether
indeed this
was the case, and if so, whether these facts were material. If it is
found that they were indeed ignored as alleged,
and were material, it
follows that the arbitrator would have come to a different conclusion
had he taken them into account, and
therefore the result arrived at
would
prima
facie
be unreasonable
[8]
.
[45]
Essentially the
Applicant’s case is that the arbitrator failed to take all the
evidence before him into consideration; he
misconstrued the evidence
and disregarded relevant evidence.
Appropriateness
of the sanction
[46]
As I already stated
there are two main grounds for review. I will first deal with the
ground for review relating the decision on
the appropriateness of the
sanction. In
Sidumo
the Constitutional
Court held that persons considering the fairness of dismissal as a
sanction must consider the following:
“
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long service record. This is not an exhaustive list”.
[47]
The Applicant submitted
that the sole issue in dispute was whether Moss’ absence in
2013 was sufficient to warrant dismissal
in light of the existing
final written warning. It is evident from the arbitration award that
in considering the appropriateness
of the sanction of dismissal the
arbitrator considered how the warning came about,
the
fact that Mr Bhaga had not established if Moss’ circumstances
had changed at the time the charges were formulated, the
option of
six months unpaid leave would have compounded Moss’ problems
rather than solve them, the eight months granted to
Moss was not
accommodating Moss as he had been working and the Applicant was not
prejudiced, the proposal Moss put forward to work
three weeks from
home and one week in the office was rejected unreasonably as
performance management could still be done online
and face to face in
the week Moss would be in the office, other employees who work
remotely are performance managed and the applicant
agreed to remote
working in the preceding eight months.
[48]
The Applicant’s
case in this regard is that the arbitrator firstly took into account
irrelevant evidence and ignored relevant
evidence and secondly he
determined issues that was not in dispute.
[49]
The arbitrator found
the sanction too harsh and one of the factors he considered was how
the final written warning came about. The
arbitrator accepted that
Moss was issued with a final written warning for unauthorised absence
and that the warning had not been
challenged and as such the warning
was valid at the time of dismissal and could have been considered by
the chairperson of the
disciplinary enquiry. The arbitrator however,
when deciding the appropriateness of the sanction, took into
consideration how the
warning came about. Having accepted that the
final written warning was valid at the time of dismissal and that it
related to the
same or similar misconduct Moss was dismissed for, it
was not open for the arbitrator to base his decision on the manner of
arriving
at the final written warning and to ignore the fact that a
valid final written warning was in existence.
[50]
It is further evident
from the factors the arbitrator considered that he either considered
issues not relevant to the question he
had to decide or that he made
finding not supported by the evidence adduced and his findings were
based on nothing but his own
assumptions or speculation. The
arbitrator was not expected and is not required to consider what he
would do but is required to
determine whether what the employer did
was fair and in determining that he had to consider factors such as
length of service,
disciplinary record, severity of the misconduct,
remorse and the possibility of rehabilitation.
[51]
Glaringly absent is a
consideration of the factors set out in
Sidumo
or Schedule 8 of the Act and it cannot be said that the arbitrator
did not ignore relevant evidence or did not consider irrelevant
factors.
The
manner in which the arbitrator dealt with evidence.
[52]
The second main ground
for review relates to the evidence adduced and the arbitrator’s
findings. The Applicant takes issue
firstly with the finding that
there was a tacit agreement that Moss could work remotely from his
home in Kimberley. It is evident
from the case Moss presented that he
felt the Applicant was not accommodating of his personal
circumstances when exercising the
discretion not to allow him to work
from home and that the discretion was exercised unfairly as other
employees were allowed to
work remotely from home. It was undisputed
that the Applicant has a discretion to allow or refuse any employee
permission to work
from home.
[53]
Moss testified that he
was granted permission to work from home in order to sort out his
personal problems and when the problems
were not resolved after two
weeks, the arbitrator recorded that Moss was granted a further eight
months. Moss never testified and
did not rely on the fact that there
was a tacit agreement that he could work remotely from home
indefinitely. In my view even if
such a tacit agreement existed, it
came to an end during July 2012 when Moss was instructed to report
for duty at the Applicant’s
offices and when Moss agreed to
report at the Applicant’s offices and in fact did so at some
stage in 2012. The evidence
before the arbitrator shows that from
August 2012 onwards Moss was aware and agreed to make arrangements to
present himself and
to report for duty at the Applicant’s
offices and there can be little doubt that he understood that he had
to report for
duty at the Applicant’s offices and that there
was no agreement or permission for him to render his services
remotely from
his home in Kimberley.
[54]
The finding that there
was a tacit agreement between the Applicant and Moss that he could
render his services remotely was not supported
by evidence.
[55]
The Applicant further
takes issue with the finding that Moss’ proposal to work three
weeks from home and one week in the office
was rejected unreasonably
as performance management could still be done online and face to face
in the week Moss would be in the
office. This finding demonstrates
that the arbitrator found the only relevant consideration regarding
Moss working from home was
the manner in which the PIP could possibly
be conducted. In this instance the arbitrator failed to consider the
undisputed evidence
that working from home was within the discretion
of the Applicant and always required management’s permission
and that the
policy required a discussion to be held to determine the
feasibility of such an arrangement. The testimony further was that
the
discretion was based on an employee’s performance and Moss
had a performance rating below the required standard. The Applicant
further submitted that the other employees who work remotely did not
have poor performance issues.
[56]
The evidence adduced by
the Applicant does not support a finding that the proposal that Moss
works three weeks from his home in
Kimberley and one week at the
applicant’s offices was unreasonably rejected, if the evidence
was considered holistically
considering that it was a discretion to
be exercised with due consideration of performance and Moss had
performance issues.
[57]
The Applicant lastly
takes issue with arbitrator’s finding that other employees who
work remotely are performance managed
online. The Applicant’s
case is that the arbitrator assumed that the performance of other
employees who work remotely referred
to poor performance and not day
to day performance.
[58]
There was no evidence
adduced in respect of other poor performing employees who had been
subjected to a PIP online. The Applicant’s
evidence was that
its culture was to conduct the PIP in person to assist and support
the employee.
[59]
It is evident that the
arbitrator ignored a host of relevant facts and having found that
relevant effects were ignored, the
Mofokeng
analysis should be
undertaken. To begin with the first enquiry, the relevant facts that
were ignored by the arbitrator constitute
material facts, because if
they had been considered by the arbitrator, he would on the
probabilities have come to a different conclusion.
In the result, the
award is
prima facie
unreasonable.
[60]
Turning to the second
enquiry, the question is whether there exists a basis in the evidence
overall to displace the
prima
facie
case of
unreasonableness. To my mind, no such basis exists in this case, with
the result that the award is unreasonable and there
is merit in the
grounds for review as raised by the Applicant.
[61]
The arbitrator’s
finding that there was a tacit agreement between the Applicant and
Moss that he could work from home and
his finding that other
employees were performance managed online and that the same could
have been done for Moss, informed the
outcome of the arbitration
proceedings and directly impacted on the findings in respect of
substantive fairness. Equally so did
the failure to consider that at
the time of his dismissal Moss had a valid final written warning for
unauthorised absence and by
ignoring this fact, the arbitrator
ignored the purpose of a final written warning. A final written
warning is exactly what it says
namely a ‘final’ warning
and to ignore the existence of such a warning would be to make a
mockery of the process of
progressive discipline.
[62]
It is evident from the
arbitration award that the arbitrator in certain respects
misconstrued the nature of the enquiry. This is
so where the
arbitrator had to decide the fairness of Moss’ dismissal for
reasons related to misconduct but where he concerned
himself with
questions relating to the Applicant’s failure to accommodate
Moss and the rejection of the proposal that he
works remotely for
three weeks a month and reports for duty at the Applicant’s
offices one week per month. The findings made
in this regard are
concerning firstly because the failure to accommodate Moss to work
remotely was not relevant to the enquiry
dealing with the fairness of
his dismissal for reasons related to misconduct. There is no
nexus
between the ability
to conduct the PIP remotely and the question whether dismissal was an
appropriate sanction. Secondly, the arbitrator
further delved deeply
into issues that are reserved for managerial prerogative and he
attempted to dictate the manner in which
the PIP had to be conducted.
The arbitrator ignored the fact that the Applicant as an employer has
a discretion to run its affairs
in the manner it deems fit.
[63]
I must ascertain
whether the arbitrator considered the principal issue before him,
evaluated the facts presented and came to a conclusion
that is
reasonable.
[64]
Viewed cumulatively,
and in line with
Mofokeng
,
the arbitrator’s failure to apply his mind to issues and to
consider evidence, which as demonstrated above, were material
to the
determination of the dispute, led him to misconceive the nature of
the enquiry. The arbitrator found that there was a valid
rule and
that Moss contravened the rule, but he then failed to address the
remaining issue he had to determine namely the appropriateness
of the
sanction of dismissal with due consideration of the evidence adduced
and the applicable principles. The arbitrator made
findings not
supported by evidence, he ignored relevant evidence and he took into
consideration issues and factors not relevant
to the determination of
the question. It cannot be said that the arbitrator’s decision
was one that a reasonable arbitrator
could have reached on a full
conspectus of all the facts before him.
[65]
Based on the above, I
am persuaded that this award cannot stand and should be interfered
with on review. It follows that the application
in terms of section
158(1)(c) of the Act to make the arbitration award and order of court
fails.
[66]
This is a case where
the interests of justice would be best served by no cost order.
Order
[67]
In the premises I make
the following order:
67.1 The
arbitration award issued on 9 December 2013 under case number
GAJB6804-13 is reviewed and set aside;
67.2
The arbitration award is substituted with an order that the Third
Respondent’s dismissal was fair;
67.3
The application in terms of section 158(1)(c) of the Act to make the
arbitration award an order of court case is dismissed;
67.4
There is no order as to costs.
C.Prinsloo
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Advocate G Fourie
Instructed
by:
Webber Wentzel Attorneys
For
the Third Respondent:
Mr Goldberg of Goldberg Attorneys
[1]
Act
66 of 1995.
[2]
(2007)
28 ILJ 2405 (CC) at para 110.
[3]
(2014)
35
ILJ
943 (LAC).
[4]
[2013]
11 BLLR 1074 (SCA).
[5]
[2014]
1 BLLR 20 (LAC).
[6]
[2015]
1 BLLR 50
(LAC), paragraph 33.
[7]
(2015)
36 ILJ 2908 (LC).
[8]
[2015]
1 BLLR 50
(LAC). See also
Shoprite
Checkers v CCMA and others
(at paragraph [10] where it was held that; “
The
shorthand for all of this is the following: where a commissioner
misdirects him or herself by ignoring material facts, the
award will
be reviewable if the distorting effect of this misdirection was to
render the result of the award unreasonable”