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[2016] ZALCJHB 92
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Masstores (Pty) Ltd t/a Makro Wonderboom v Achari and Others (JR2602/13) [2016] ZALCJHB 92 (7 March 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No: JR 2602/13
In
the matter between:
MASSTORES
(PTY) LTD t/a MAKRO WONDERBOOM
Applicant
and
MIYEN
ACHARI
First
Respondent
SACCAWU
Second
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Third
Respondent
COMMISSIONER
ET VAN KERKEN N.O.
Fourth
Respondent
Heard:
1 February
2016
Delivered:
7 March 2016
Summary:
The commissioner’s decision that the First Respondent’s
dismissal was substantively
unfair was unreasonable. In view of the
evidence that the relationship had irretrievably broken down, the
commissioner ought to
have found the dismissal to have been fair.
JUDGMENT
POTGIETER
AJ
Introduction:
[1]
This is an application to review an arbitration award made by the
Fourth Respondent (“the Commissioner”) under case
number
GATW 704-13, in terms of which the dismissal of the First Respondent
(“the Employee”) was found to have been
substantively
unfair.
Background
facts:
[2]
On 1 November 2010 the Applicant employed the Employee as a telesales
coordinator in its Centurion Branch.
[3]
During or about March 2011 the Employee however suffered a stroke,
which occasioned him to be unable to work for approximately
six
months thereafter.
[4]
Upon the Employee’s partial recovery and return to work (during
or about August or September 2011) he was placed in an
alternative
position as recommended in terms of a health assessment report
compiled from a variety of medical reports issued by
the relevant
medical practitioners and specialists who had treated the Employee.
The Applicant endeavoured to accommodate the Employee’s
physical condition in terms of his alternative position.
[5]
From early on after the Employee returned to duty, he encountered
difficulties with his relationship with his Manager at the
time, one
Deon Janse Van Rensburg (“Van Rensburg”). This resulted
in the Employee being charged with three counts of
serious misconduct
relating to disrespect or abuse, threat of harm and gross
insubordination on 9 February 2012. These charges
against the
Employee were however withdrawn on 10 February 2012 after the General
Manager of the Applicant’s Centurion Branch
had reached a
compromise with the shop stewards of the Second Respondent.
[6]
Unfortunately the compromise reached with SACCAWU did not result in
the relationship between the Employee and Van Rensburg improving
and
on 12 March 2012 Van Rensburg reported a further incident of
insubordination and intimidation alleged to have been carried
out
against him by the Employee.
[7]
During May 2012 management of the Applicant intervened when Van
Rensburg complained of further acts of insubordination by the
Employee. The Applicant’s Human Resource Manager, Donovan
Wright (“Wright”) accordingly indicated during a meeting
held on 18 May 2012 that formal disciplinary action would be taken
against the Employee. No disciplinary action was however taken
at the
time against the Employee. The Applicant however simultaneously took
a decision to transfer the Employee from Centurion
to the Applicant’s
Wonderboom branch. The transfer occurred in terms of a written
notice, which notice cited the reason for
the Employee’s
transfer to Wonderboom as the Employee’s partial incapacity.
[8]
After his transfer to Wonderboom, the Applicant was alleged to have
committed various further acts of insolence towards the
Applicant’s
members of senior management, which actions were alleged to have
brought the Applicant’s name into disrepute.
[9]
Consequent upon the above, the Employee was charged with misconduct
(on 14 November 2012) when he was handed a notice to attend
a hearing
and in terms of which notice he was required to answer to the
following charges:
[9.1]
Gross Insolence towards
Senior Management, in particular that on:
[9.1.1]
“May 18, 2012 in the meeting and presence of…. you
rudely and aggressively raised your voice against Deon Janse
van
Rensburg (Food Manager – Centurion) and stated that ‘Deon
must not tell you what to do as this is not the time
of apartheid’.
[9.1.2]
“June 28, 2012 in the meeting and presence of … you
allegedly rudely insulted the integrity of Fran Rennie)
HR Manager –
Wonderboom) by stating ‘that she misled you regarding the
functions of Back Returns Clerk.’
[9.1.3]
July 10, 2012 in the teleconference and presence off … you
stated that ‘you have nothing against Wonderboom
but something
against Donovan’, and further hereto you stated that ‘you
don’t think Donovan is competent. You
are not criticizing
people, you are just telling the truth.’
[9.1.4]
August 23, 2012 in the meeting and presence of … you allegedly
stated that ‘Donovan does not know what he is
doing.’
[9.1.5]
September 14, 2012 in the meeting and presence of ... you
aggressively and rudely pointed your finger at and raised your
voice
against Fran Rennie allegedly stating ‘that she deliberately
misled you in the role Back Returns Clerk.’
[9.1.6]
October 29, 2012, in the presence of customers and fellow colleagues
you became grossly insolent towards your line manager
Mr. Kutlwano
Marobyane (“Marobyane”) by screaming at him, swearing at
him, verbally insulting him and rudely pointing
your finger at him.
[9.2]
Bringing the Company name into disrepute by leveling unsubstantiated
allegations agasint the Company
and Management in particular on:
[9.2.1]
June 22, 2012 in the meeting and presence of…you allegedly
made the statement to Fran Rennie that ‘Donovan
Wright intended
to punish him and that Jimmy Ditshego (HR Manager – Centurion)
must tell the shop stewards that the idea
is to get rid of him or to
punish him for sending him to Wonderboom, hate is involved.
[9.2.2]
June 28, 2012 in the meeting and presence of… you allegedly
made the statement that ‘Fran Rennie came to fetch
you at
Centurion’.
[9.2.3]
August 7, 2012 in the meeting and presence of … you stated to
Donovan Wright that your consideration for employment
and moving to
Cape Town was because ‘you do not trust management’, and
then leveled the allegation towards both Fran
Rennie and Jimmy
Ditshego that ‘too much nonsense in Centurion, and Wonderboom,
no honesty, backstabbing from Top to the
Branches when they hate
somebody”.
[9.2.4]
August 21, 2012 in the meeting and presence of … you allegedly
stated that ‘this thing with Donovan’s
interference will
not stop, Donovan started it and we are going to end it’.
[9.2.5]
September 14, 2012 in the meeting and presence of … you
allegedly accused Fran Rennie of ‘slamming the door
in the face
of Pronce Dibetle on June 22, 2012.”
[10]
A disciplinary hearing in relation to the above charges was held on
20 and 21 November 2012 and was chaired by Leon Bezuidenhout
(“Bezuidenhout”). Bezuidenhout found the Employee guilty
as charged and, after considering mitigating and aggravating
factors,
imposed a sanction of dismissal.
[11]
The Employee appealed against the above decision. His internal appeal
was heard by Hennie Gouws on 13 December 2012, but was
dismissed.
[12]
On 14 January 2013, the Employee referred an alleged unfair dismissal
dispute to the CCMA. The arbitration commenced on 7 June
2013 and was
finalized on 8 October 2013. The commissioner issued an award (“the
award”) on 22 October 2013.
The
arbitration award
:
[13]
The commissioner found as follows:
13.1
Any verbal explanation by the Applicant to the Employer to the effect
that
the net effect of his monthly remuneration would not be reduced
was worthless in the event that it was not reduced to writing;
13.2
It was accordingly reasonable for the employee to believe that his
salary was
being reduced to R 5000 from R 20 000;
13.3
The evidence of the troubled relationship between the Employee and
Van Rensburg
was not relevant to the charges preferred against the
Employee, which only relate to events occurring later and once the
Employee
had been transferred to Wonderboom;
13.4
There was no evidence warranting a finding of guilty in respect of
Charge 1.1
brought against the Employee;
13.5
The Employee was justified in believing that Fran Rennie had mislead
him in
relation to the salary he would earn at Makro Wonderboom
subsequent to the transfer and the job functions he expected to
perform
once transferred to Wonderboom;
13.6
The Employee was not guilty of charge 1.2 since the utterances
complained of
did not attack the characteristics of Ms. Rennie, such
as honesty and accordingly did not impinge her intergrity. The
Employee
had pleaded guilty to this charge;
13.7
As a result of the Employee’s own evidence, he was satisfied
that the
Employee was guilty of charge 1.3 and of charge 1.4 due to
the Employee having pleaded guilty to this latter charge;
13.8
The evidence (Dibetle’s testimony, the Employee’s own
testimony
(a denial) and the audio recording) supported a finding of
not guilty in relation to charge 1.5;
13.9
Marobyane was not a reliable witness due to the fact that the
documentary evidence
presented casted doubt upon his reliability;
13.10
On a balance of probabilities the Employee
showed his middle finger to Marobyane without Marobyane
having shown
him the middle finger first, which constituted insolence;
13.11
The Employee made the statements and uttered
the insults as alleged by the Applicant in charge 1.6
and he was
accordingly guilty of this charge;
13.12
In disallowing the Employee to use the dect
mobile phone, the Employee was unfairly limited in the
performance of
his duties. This finding was however reached after the commissioner
found that it was unnecessary to fully record
the different versions
offered by Marobyane and the Employee in relation to the different
functionalities of the dect mobile telephone
and the to land line
telephones;
13.13
Since it was not the Employee’s case
that he was provoked by Marobyane, he was still guilty
of charge 1.6;
13.14
The Applicant failed to prove that its name
had been brought into disrepute in the eyes of outsiders
and
therefore the Employee could not be competently convicted of any of
the charges listed under charge 2;
13.15
The Employee was only guilty of charges 1.3,
1.4 and 1.6;
13.16
Van Rensburg’s evidence (in relation to what transpired at the
Applicant’s Centurion
branch) was not relevant to the
determination of a sanction in the matter;
13.17
Marobyane did not testify that it would be
intolerable to continue the employment relationship with
the
Employee;
13.18
The withdrawal of the charges against the
Employee during February 2012 did not support a contention
by the
Applicant that a continuation of the employment relationship was
rendered intolerable through the Employee’s conduct;
13.19
The Applicant’s conduct would have
made it difficult for any employee to trust its
bona
fides
and to settle in any
of its branches. The Applicant’s conduct led to the Employee’s
sense of frustration;
13.20
Cautioning by the Applicant was not
sufficient to establish progressive discipline;
13.21
The Applicant’s testimony in relation
to the breakdown of the trust relationship was not objective
in view
of the facts;
13.22
The incidences of insolent conduct committed
by the Employee and of which he was found guilty, do
not justify a
sanction of dismissal;
13.23
The Employee is to be retrospectively reinstated with retrospective
pay amounting to R 40 866,
00.
The
grounds for review:
[14]
The Applicant has raised several grounds for review in challenging
the award. The grounds for review can be categorized into
two
categories, namely that the arbitration award is unreasonable and
secondly that the Commissioner committed gross-irregularity
in the
manner in which she conducted the arbitration proceedings.
[15]
In relation to the issue of gross-irregularity, the Applicant
complains that the Commissioner misconstrued the nature of the
enquiry she was to conduct, ignored relevant evidence, which was
presented at the arbitration hearing and failed to assess the
evidence on the probabilities.
The
test for review:
[16]
In terms of section 145 of the LRA this court may set aside awards if
it is satisfied that the award was defective. An award
is defective
inter alia
in terms of section 145(2)(a) if the arbitrator committed misconduct
in relation to her duties and/or if the arbitrator committed
a gross
irregularity in the conduct of the arbitration proceedings.
[17]
The Constitutional Court has ruled in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others (2007) 28
ILJ 2405 (CC)
(“
Sidumo”
)
that the awards of arbitrators are reviewable if they do not meet the
constitutional requirement of “reasonableness”.
The court
found further that the constitutional standard of reasonableness must
be taken to have ‘suffused’ the review
grounds set out in
the LRA if section 145 is to comply with the Constitution.
[18]
An arbitrator commits an error of fact in the event that she fails to
apply the rules of evidence. An award based exclusively
on hearsay
evidence, will accordingly be reviewable. In addition an arbitrator’s
failure to apply the cautionary rule to
the evidence of a single
witness resulted in an award being set aside on review
[1]
.
[19]
An arbitrator fails to apply her mind when an arbitrator ignored or
gave insufficient weight to relevant evidence, or gave
excessive
weight to immaterial evidence, or drew conclusions from evidence,
which were not supported in law or logically
[2]
.
[20]
The test that this court must accordingly apply in deciding whether
the Commissioner’s decision is reviewable is whether
the
conclusion reached by the Commissioner was so unreasonable that no
other arbitrator could have come to the same conclusion.
[21]
In
Herholdt v Nedbank Ltd
[3]
the test to be applied was enunciated as follows:
“
A
review of CCMA awards is permissible if the defect in the proceedings
falls within one of the grounds in s 145(2)(a) of the LRA.
For a
defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must
have misconceived the nature of the inquiry or arrived at an
unreasonable result. A result will only be unreasonable if it
is one
that a reasonable arbitrator could not reach on all the material that
was before the arbitrator. Material errors of fact,
as well as the
weight and relevance to be attached to particular facts, are not in
an of themselves sufficient for an award to
be set aside, but are
only of any consequence their effect is to render the outcome
unreasonable.”
[22]
In
Fidelity Cash Management
Services v CCMA & Others
[4]
the Labour Appeal Court referred to what the Constituional Court had
held and found that:
“
to
determine whether a CCMA commissioner’s arbitration award is
reasonable or unreasonable, the question that must be asked
is
whether or not the decision or finding reached by the Commissioner
‘is one a reasonable decision-maker could reach’.
If it
is an award or decision that a reasonable decision-maker could not
reach, then the decision or award of the CCMA is unreasonable
and,
therefore, reviewable and could be set aside. If it is a decision
that a reasonable decision-maker could reach, the decision
or award
is reasonable and must stand’. The court further held that the
court needs to remind itself that the task of determining
the
fairness or otherwise of a dismissal is, in terms of the LRA,
primarily given to the Commissioner. In exercising the power
to
review the court needs to consider the totality of the evidence
before the Commissioner, determine whether the Commissioner
dealt
with the principal issue, considered the evidence and reached a
reasonable decision.”
[23]
It is against this background that the Applicant’s grounds of
review must be assessed.
Evaluation:
[24]
I am to consider in terms of this review whether the conclusion
reached by the Commissioner (in finding the Employee’s
dismissal substantively unfair) is one that a reasonable
decision-maker could not reach.
[25]
In determining whether the dismissal was fair, the Commissioner must
first determine whether misconduct was committed. If so,
like in the
present instance, the commissioner must determine whether the
sanction of dismissal was fair. In determining the fairness
of the
sanction of dismissal, the commissioner must determine whether the
trust relationship between the employee and the employer
has broken
down irretrievably as a result of the misconduct. The question
of whether the relationship between the parties
has irretrievably
broken down has to be assessed on the evidence presented by the
employer. The test to apply in determining whether
the dismissal
sanction was fair is whether the misconduct rendered the continued
employment relationship intolerable
[5]
.
In the decision of
SACCAWU v
OK Bazaars Kimberley
[6]
,
it was held that the real test is whether the trust relationship
between employer and employee has been breached to such a degree
that
the employment relationship has become intolerable. It was held
further that the question whether the trust relationship has
broken
down irretrievably is a question of fact and not a question of law.
[26]
In
Edcon Limited v Pillemer
N.O.
[7]
,
the SCA held in this regard that the seriousness of the misconduct
depends not only on the act itself, but on the way it impacted
the
employer’s business. The employer must accordingly lead
evidence to the effect that the breakdown of the relationship
is
beyond repair.
[27]
I agree with Mr. Masuku that the evidence demonstrated the Employee
as a repeat offender, as an employee prone to refusing
to subject
himself to the authority of his supervisors and as an employee who
resorted to insolence in his engagement with the
management of the
Applicant on a variety of issues. These factors determine that a
workable employment relationship was no longer
capable of being
maintained between the parties. The Employee furthermore made it
clear that he was not prepared to subject himself
to the authority of
the Applicant and thereby broke down the employment relationship in a
serious, ongoing and deliberate manner.
The Employee furthermore
consistently acted in an insolent fashion towards his employer (in
circumstances where his employer had
endeavoured to accommodate and
treat the Employee equitably wherever possible) and through his
robust engagement with his employer
tarnished the trust relationship.
[28]
From the evidence it is moreover clear that the Employee acted in a
deliberately disrespectful and recalcitrant manner with
total
disregard for the authority of his employer as argued by Mr. Masuku.
I have to agree further that the Employee is a person
who is shown in
terms of the evidence to demonstrate no remorse for his conduct, who
repeats misconduct and who fails to commit
at all to the values
applicable in most workplaces. The Commissioner’s conclusion to
the contrary (especially in the face
of the guilty charges and common
cause pleas of guilt in relation to serious acts of misconduct) make
the award unreasonable in
terms of the test set out above. This
aside, the Commissioner’s conclusions were unreasonable having
regard to the material
before her.
[29]
In light of the above, I am of the view that the Applicant’s
review application should succeed. For avoidance of doubt,
the
conclusion reached by the Commissioner (in finding the Employee’s
dismissal substantively unfair in the circumstances)
is one that a
reasonable decision-maker could not reach.
Order:
[30]
In the premises I make the following order:
1.
The arbitration award handed
down by the Fourth Respondent under case number GATW 704-13
is
reviewed and set aside;
2.
The arbitration award is
substituted with the following award:
2.1
The dismissal of the Employee
(First Respondent) was substantively fair;
2.2
There is no order as to costs.
_______________________
C
Potgieter AJ
Acting
Judge of the Labour Court South Africa
Appearances:
For the
Applicant:
Mr. B Masuku
from Mervyn Taback Inc.
For the
Respondent:
Mr. Lekala of SACCAWU
[1]
Blue Ribbon Bakeries v
Naicker & others [2000] 12 BLLR 1411 (LC).
[2]
John Grogan: Labour
Litigation and Dispute Resolution (Second Edition) 386.
[3]
(2013) 34 ILJ 2795
(SCA).
[4]
[2008] 3 BLLR 197 (LAC).
[5]
Anglo American Farms t/a
Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC).
[6]
[1998] 7 BALR 887
(CCMA).
[7]
[2010] 1 BLLR 1
(SCA).