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[2016] ZALCCT 54
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Engineered Linings (Pty) Ltd v Wilson and Others (C382/2015) [2016] ZALCCT 54 (17 November 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NUMBER
C382/2015
DATE
17 NOVEMBER 2016
In
the matter between
ENGINEERED
LININGS (PTY) LTD
Applicant
and
D
I K WILSON
First Respondent
CCMA
Second Respondent
ANGELIQUE
HENN
Third Respondent
JUDGMENT
STEENKAMP,
J
:
This
is an application to have an arbitration award by Commissioner D I K
Wilson dated 1 April 2015 reviewed and set aside.
It arises
from the dismissal of the employee, Angelique Henn, by the employer
-- who is the applicant in this review application
– namely
Engineered Linings (Pty) Ltd.
At
the beginning of the hearing I granted condonation for the late
filing of the applicant’s heads of argument.
It
is common cause that Ms Henn was a senior employee. She was
employed in 2003 and at the time of her dismissal she was the
company's Financial Manager, earning a gross salary of R38 000,00
per month. She was dismissed on 5 June 2014 after
a
disciplinary hearing at which she was charged with gross negligence
and dishonesty.
[1]
The charges mainly arise from a period at the end of 2013 when the
company changed its financial software system from a system
called
SYSPRO to a new one, namely Pastel.
The
arbitrator found that, even though a number of allegations of
misconduct had been levelled at the employee, he could deal with
all
of them simultaneously at the hand of the evidence before him, as
they mainly arose from the same circumstances. He came
to the
conclusion that, apart from one specific incident dealing with
pay-outs to retrenched workers, the employer had not discharged
the
onus of showing that the employee had committed misconduct. He
noted that as far as the other charges are concerned:
“
...the
inability of the [employee] to perform in the manner expected of her
by PSV Holdings was entirely, or at least very largely,
caused by the
failed implementation of the new software package and that the
employee cannot be held responsible for her failure
to meet
expectations.”
As
far as the other charge is concerned, called Charge N, the employee
conceded that she had made an error in overpaying some of
the
retrenchees. The arbitrator noted that, in mitigation, she
stated that she was not involved in calculating the packages
and was
under the impression that the package was payable over and above
their normal salaries and leave pay.
The
arbitrator concluded that she was negligent in checking to ensure
that her understanding was correct. However, he took
into
account that two senior people had checked her figures and accepted
them as correct. He found that it warranted nothing
more
serious than a written warning. In those circumstances he found
the dismissal of the employee to be substantively unfair.
He
took into account that she had 11 years of service, all except the
last six months without any complaint, as well as the stress
and
trauma to which she had been subjected and the finding of a degree of
negligence on Charge N. He ordered the employer
to pay her
compensation equivalent to 10 months' remuneration.
In
response the employer has raised some eight grounds of review.
Those grounds are all predicated on the overarching ground
that the
Commissioner committed a gross irregularity. At the risk of
restating trite law this Court, as well as the Labour
Appeal Court
and the higher courts, have been at pains to emphasise that in
determining reasonableness, which is the test on review,
the test is
not whether the Commissioner was correct but whether the decision
falls within a range of reasonable findings that
the arbitrator can
arrive at after taking into consideration all the material factors
presented to him, as set out for example
in
Ethekwini
Municipality: Durban Metropolitan Police Services v Khanya
[2014] ZALAC 48.
I
will not restate the well-known test and the factors enumerated in
Goldfields Mining South Africa (Pty) Ltd
(Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR
20
(LAC), other than referring to that test and to the one in
Herholdt v Nedbank
[2013] 11 BLLR 1074
(SCA). It is against that background that I
will consider each ground of review.
The
first one and one on which Mr
Volschenk
says much of the rest
of the award is predicated, is that the arbitrator took a subjective
decision on the fairness of the dismissal.
He does not go so
far as to allege bias, but he points to an example that the
arbitrator took into account his own experience in
the changeover of
a software system where he says:
“
Ms
Duberly testified that in her 20 years' experience she had been
involved in six such system changes and in all such cases the
two
systems were running parallel initially while the problems in the new
system were ironed out. Indeed, that has also been
my
experience and I find it inexplicable why PSV should have proceeded
with the change with such limited preparation and training
(at least
as far as the employee and Ms Duberly were concerned) and no option
of the old system running in parallel.”
Firstly
it must be noted that the arbitrator refers specifically to the
evidence of Ms Duberly and he then says, entirely by the
by:
“
Indeed,
that has also been my experience.”
Had
it been a court of law, that could have been no more than an
obiter
statement. It is certainly not the
ratio
for the eventual award. What he stresses is the evidence of Ms
Duberly. It is so that Ms Duberly did not give evidence as
an
expert witness, but the arbitrator was quite entitled to take her
experience into account.
It
must also be noted that the employee, Ms Henn, herself testified that
she specifically requested that the two systems run in
parallel, but
that request was refused. She went on to say:
“
I
can't, I really can't understand why it was denied because in most
companies when you move from one accounting to another accounting
package, and we even had the same scenario when we moved originally
from Pastel to SYSPRO, we did run Pastel Partner and SYSPRO.
For a month we had the two systems overflowing and majority of your
companies out there don't just switch off one accounting package
and
start working in another accounting package.”
It
was entirely reasonable for the arbitrator to take that evidence into
account. That is not a reviewable ground.
The
second ground raised is that of the arbitrator considering the lack
of training given to the employee. Mr
Volschenk
submitted that on the contrary, there
was adequate training. However, the conclusion reached by the
arbitrator is borne out
by the evidence before him. Although
there were some attempts by a Mr and Mrs Peacock as well as Ms
Barkhuizen and Ms Slabbert
to help the employee, the only proper
training on the system itself appears to have been a two-day lecture
on Pastel generally.
The arbitrator also pointed out that,
apart from the general training, this company had special needs that
were not adequately
addressed in the training. As far as Ms
Barkhuizen and Ms Slabbert are concerned, the evidence bears out the
submission made
by Mr
Bosch
that it was more hindrance than help. They made additional demands
and put more pressure on the employee, whereas what she needed
was
technical support.
The
third ground of review is that of the employee's seniority. I
took Mr
Volschenk
's
argument to mean that he referred both to her extensive years of
service, i.e. more than 10 years, as well as her seniority in
the
company as a financial director. That experience and years of
service are not entirely relevant to the misconduct complained
of.
The
misconduct flows directly from the implementation of the new software
system. As I have noted with regard to the arbitrator's
views
on the training provided, her years of experience could not have
prepared her for the problems arising out of the implementation
of
the new software package towards the end of 2013. The
arbitrator's failure to take that into account in that context is
again not a reviewable irregularity.
I
then turn to the fourth ground of review, which is that the
arbitrator came to contradictory conclusions with regard to evidence
of misconduct on the one hand or poor performance on the other hand.
It must be noted though that the arbitrator, although
he made a
passing remark that it may have been better to consider the conduct
of the employee as poor performance, did not make
any such finding,
i.e. that she was guilty of poor performance. Instead he
considered the dispute before him, which was that
of misconduct based
on gross negligence. Having found that the employer had not
proven that misconduct, other than the one
on Charge N, he applied
his mind to that evidence with regard to the dispute before him.
That is what he needed to do and
it is not reviewable. As required by
Goldfields
,
he asked the right question and he determined the dispute before him.
The
employer then dealt with a broad ground of review, namely the failure
to properly evaluate and make findings on the evidence.
It is
so that the arbitrator did not deal with each allegation of
misconduct separately when he analyses the evidence before him,
which
he had described in some detail in a wide-ranging award spanning 20
pages and 123 paragraphs. What he does do is to
say:
“
I
do not intend to canvass all the charges individually, save for one,
being Charge N. As far as the other charges are concerned
I am
satisfied that the inability of the applicant to perform in the
manner expected of her by PSV Holdings, was entirely or at
least very
largely caused by the failed implementation of the new software
package and that the applicant cannot be held responsible
for her
failure to meet the expectations.”
He
then goes into further detail about the implementation of that
system.
In
that regard it is quite correct, as Mr
Bosch
argued, that the allegations of misconduct against the employee all
contained an element of fault, mostly in the form of negligence.
That is what the arbitrator considered and, having considered the
evidence before him carefully with regard to all of those charges,
he
came to a reasonable conclusion.
Both
M
r Bosch
and Mr
Volschenk
referred to
Simani v
Mossel Bay Municipality
(2014) 35
ILJ
2295 (LC) at
paragraphs 43 to 44 where this Court had the following to say when
dealing with the conduct of the arbitrator, and
that is that the
arbitrator must:
“
...grapple
with the merits of the dispute before arriving at a conclusion.
An award is not to reflect a perfunctory approach
to the disputes of
fact, with the commissioner merely recording the evidence of both
parties and then, without further ado, selecting
one or the other
version.”
That
is not what the arbitrator did in this case. He carefully
considered the evidence before him and gave proper, albeit
short,
reasons for his decision to come to the conclusion that he did.
That is what an arbitrator must do and it is not reviewable.
Turning
then to the one specific charge on which the arbitrator found that
the employee had committed misconduct, namely that she
was negligent
in paying retrenchees over and above their salaries and leave.
He again considered the evidence carefully.
He noted that she
conceded the misconduct and expressed remorse. He considered
that it did not warrant dismissal and he imposed
a final warning.
In that regard he specifically took into account that two senior
people had checked her figures and they
had no problem with it.
Also, he took into account that the overpaid amounts were recoverable
by the employer. He did
not mistakenly say that they had
already been recovered, merely that it was recoverable. Taking
into account those factors
and the warning that he did impose, that
falls within a range of reasonable options and is not reviewable. As
the LAC held in
Marthinussen v MEIBC
(2016) 37
ILJ
2292
(LAC) par 11:
“
It
is trite that decision-makers acting reasonably may reach different
conclusions on the issue of sanction. Provided the sanction
falls
within a reasonable range of options the court should be loath to
interfere where the arbitrator has considered all relevant
factors
and not been influenced by capricious or irrelevant considerations
distorting the outcome.”
With
regard to the evidence of Mr Anthony Dreisenstock, the arbitrator did
consider it. He did not, admittedly, take a warning
that
Dreisenstock had previously imposed on the employee into account.
However, that warning appears to have related to incidents
of late
coming and was not relevant to the dispute before him.
Lastly,
Mr
Volschenk
submitted that, even if the arbitrator's
conclusion on the merits were not assailable, then his award of
compensation was.
Compensation, however, is a discretionary
remedy, as the Constitutional Court pointed out as recently as last
week in
SARS v CCMA
[2016] ZACC 38
at para 50:
“
To
compensate or not to compensate, and, if compensation is to be
awarded, for what period, is a function of the judicious exercise
of
the discretionary power that an arbitrator or the court has in terms
of section 194(1) of the LRA.”
That
merely confirms what the Act itself says and it is also the approach
that the Labour Appeal Court adopted in
Kemp t/a Centralmed v
Rawlins
(2009) 30
ILJ
2677 (LAC) at para 55 when it held
that:
“
...the
test that the Court, called upon to interfere with the discretion,
will apply is to evaluate whether the decision-maker acted
capriciously, or upon the wrong principle, or with bias, or whether
or not the discretion exercised was based on substantial reasons
or
whether the decision-maker adopted an incorrect approach.”
None
of those factors apply in this case. The decision-maker, namely
the arbitrator, did not act capriciously or upon the
wrong principle
or with bias. He merely exercised a discretion and properly
took into account the factors that he outlined.
The fact that
the employer or indeed the Court may disagree with the amount of
compensation ordered is neither here nor there.
It does not
make the award reviewable.
In
conclusion
:
The
award is not open to review. Both parties asked for costs to
follow the result. I see no reason to disagree.
THE
APPLICATION FOR REVIEW IS DISMISSED WITH COSTS.
………………………………
STEENKAMP,
J
APPEARANCES
APPLICANT:
Dirk Volschenk of Snyman attorneys.
THIRD
RESPONDENT: Craig Bosch
Instructed
by
Malcom Lyons & Brivik.
[1]
The
disciplinary hearing was chaired by Mr Dirk Voschenk – the
attorney who appeared for the employer in this hearing –
in
his guise asa an IR Consultant for Labournet.