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[2016] ZALCPE 17
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Jonas v Commission for Conciliation, Mediation and Arbitration and Others (PR68/2014) [2016] ZALCPE 17; [2016] 12 BLLR 1222 (LC); (2017) 38 ILJ 376 (LC) (9 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Of
interest to other judges
Case
no: PR 68/2014
In the
matter between:
PHUMULELE JONAS
First Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
First Respondent
EDGAR MQUQO
N.O.
Second Respondent
SOUTH AFRICAN SOCIAL
DEVELOPMENT AGENCY
Third Respondent
MINISTER OF SOCIAL
DEVELOPMENT
Fourth Respondent
Heard
:
6 September 2016
Delivered
:
9 September 2016
Summary:
(review-substantively unfair dismissal-appropriate
relief)
JUDGMENT
LAGRANGE
J
Introduction
[1] In
this review application, the applicant seeks to review and set aside
an arbitration award in terms of which his dismissal
was found to be
substantively and procedurally unfair. His complaint on review
concerns the relief awarded by the arbitrator. He
contends that the
arbitrator committed a reviewable irregularity in not reinstating him
and only awarding him 10 months’
remuneration as compensation.
[2] In
the alternative, he claims that his remuneration was incorrectly
calculated and accordingly the quantum he was awarded should
be
altered. He points out that although the arbitrator was clearly
aware that his monthly salary was R45, 000 per month and
not R 33,650
per month, the arbitrator erroneously calculated his compensation
based on the latter amount. Strictly speaking, the
correction of that
figure is really a matter that should be dealt with by way of a
variation order, but I accept that it would
be obviously inconsistent
for the applicant to attempt to review and set aside the award on the
one hand and on the other simultaneously
seek to vary it. In any
event, the respondent accepts that the arbitrator erred in this
regard does not oppose the alternative
relief, but opposes the
application to set aside the order of compensation and replace it
with an order of the reinstatement
[3] The
respondent filed its answering affidavit over two months late, though
it did seek an indulgence from the applicant which
was partially
granted. Although the answering affidavit was considerably late I am
satisfied that the respondent was not unduly
dragging its heels and
was attempting to deal with the matter. There is also no prejudice to
the applicant complained of by him
as a result of the delay. In the
circumstances the respondent’s late filing of its answering
affidavit is condoned.
[4] The
applicant had been dismissed principally as a result of grievances
lodged by his subordinates for his alleged disrespect,
abusive and
insolent behavior towards some of them and for improperly,
disgracefully and an acceptably shouting at some of them
in front of
clients or members of the public. He had also been charged for
prejudicing the administration, discipline and efficiency
of the
agency, in that he intimidate it and victimized employees under his
supervision. The nub of the arbitrator’s conclusion
on the
evidence was forthright:
“
In
the circumstances, I cannot find any evidence to persuade me to find
in favour of the respondent. The evidence in fact gives
the
overwhelming impression that there are a few dishonest employees
which are trying to paint the applicant in a bad light. I
find the
dismissal to be substantively unfair.”
[5] The
key question is whether the arbitrator committed a reviewable
irregularity by not reinstating the applicant, which is the
primary
remedy for a substantively unfair dismissal. In order to warrant his
non-reinstatement, the arbitrator needed sufficient
reasons to
justify one of the grounds for not doing so in terms of section 193
(2) of the LRA. Although the arbitrator referred
to section 193 (2)
(b) and concluded that it was not reasonably practicable to reinstate
or re-employ him, it is apparent that
his real finding on the facts
was that it would be intolerable to reinstate him. Accordingly, the
reference to section 193 (2)
(b) was misplaced. In one sense, this
was a misdirection by the arbitrator in that he applied the incorrect
test under that subsection.
However, the relief ordered might still
be justifiable under section 193 (2) (a) and consequently not
unreasonable in the final
analysis.
[6]
That intolerability was the
real reason is apparent from the arbitrator’s reference to the
LAC judgement in
Dunwell
Property Service CC v Sibande
.
[1]
In that case the employee had made serious allegations against
various managers leading the court to decide that the trust
relationship
between the employer and employee had broken down
irretrievably. What distinguishes this case from that one is that in
this instance
the alleged defamatory remarks were made by the
applicant’s subordinates against him, not that he had done
anything to undermine
his own superiors by making allegedly
defamatory allegations against them.
[7]
However, the arbitrator’s reasoning in this regard in essence
was that, as a manager, the applicant should not have dealt
with a
workplace issue by instituting civil action against six of his
subordinate’s through his attorneys. This was essentially
why
senior management had rejected the motivations of Mr S Mpako, the
first respondent’s Labour Relations Manager, to reinstate
the
applicant according to Mpako’s own evidence. He claimed that
senior management was frustrated with what it perceived
to be the
applicant’s inability to manage the employees under his
control. It believed that he should have followed the normal
procedures in dealing with these matters. They felt that he was using
the litigation to intimidate the employees and management
even
decided to assist the employees so that they could be represented in
the court proceedings against them. There was no evidence
that the
employer took any disciplinary steps against the applicant for his
alleged misconduct as a manager in this regard.
[8] In
his evidence at the arbitration, the applicant said he had not dealt
with the alleged defamatory claims of the employees
against him using
the procedures available to him in the workplace because the nature
of the allegations made against him were
not work related. By
contrast, the employer took the opposite view that they were work
related. Related to this issue, an
in limine
objection raised by the employer was that the record was incomplete
in that the bundle of documents which contained the summons
and the
alleged defamatory allegations of the employees was not included as
part of the record and the evidence in chief of the
employer’s
first witness was missing from the transcript. The applicant decided
that it was not for the purposes of the review
application to
include the bundles of documents, which makes it somewhat
difficult to evaluate to what extent the alleged
complaints for which
the applicant issued summons against his subordinates were work
related or not, though there is some evidence
of what those
complaints concerned. The employer believed as evidenced by Mr
Mpako’s evidence that he ought to have filed
a grievance
against the employees concerned before having recourse to civil
litigation. As the applicant chose not to make the
record available,
I will assume in the respondent’s favour that the alleged
defamatory allegations against the applicant
did concern work related
issues.
[9] I
agree with the applicant that in determining whether reinstatement
would be appropriate the mere fact that some of the applicant’s
subordinates had testified they did not want to work under him,
particularly where those subordinates had been found to have
made false complaints against him would not be a valid consideration.
The crux of the matter is whether the arbitrator could reasonably
have concluded that the employment relationship between the applicant
and the employer had broken down because of the civil proceedings
he
had instituted against his subordinates. Under cross-examination,
Mpako explained that the reason why senior management was
resistant
to taking the applicant back was that he was not the type of employee
who was amenable to discipline himself. However,
apart from the
ramshackle case which led to the applicant’s dismissal, which
the arbitrator dismissed in no small part because
of the dishonesty
of the complainants, there was no evidence adduced to show that the
employer had attempted to deal with what
it considered to be the
applicant’s overly strict disciplinary style, which did not
conform to its more forgiving approach
to indiscipline.
[10] Mr
Simoyi
, who appeared for the employer, submitted that it is
not necessarily a requirement that the reason for reinstatement being
intolerable
needs to emanate from the same events which gave rise to
the disciplinary enquiry. That may well be true, but where the
employer
essentially relies on other factors which might have
warranted other disciplinary action, an arbitrator should be wary of
falling
into the trap of refusing the primary remedy of reinstatement
because there might have been other grounds for disciplining the
employee which could ultimately have led to his dismissal.
[11] In
this case, it would seem that the employer advanced the argument,
which the arbitrator accepted, that it would be intolerable
to
reinstate the applicant because he was not be amenable to moderating
his disciplinarian stance, even though it had failed to
prove that he
had conducted himself unacceptably. In essence, the reason advanced
is scarcely distinguishable, if at all,
from some of the
charges which the employer was unsuccessful in proving. The other
ground relied on by the arbitrator was that
the applicant had
demanded through his attorneys a copy of a minutes of a meeting
between certain other managers in which it was
apparently decided
that he should no longer preside in disciplinary enquiries. Making
such a request through his attorneys undoubtedly
would have irritated
the applicant’s superiors. However, that did not prevent them
dealing with it internally with the applicant.
Had he then refused to
deal with it other than through his attorney and thereby obstructed
normal internal communications between
himself and senior management
that is a matter which might well have given rise to other
disciplinary steps against him but that
point had not been reached
and the mere fact that his approach might be irritating does not
transmute into a working relationship
which has become intolerable.
The evidence before the arbitrator was not sufficient to support this
as a conclusion that a reasonable
arbitrator could come to.
[12]
The LAC has emphasised that it
must not be lost sight of that reinstatement is the primary and
default remedy unless displaced by
factors that serve to outweigh its
underlying rationale, namely intolerability or impracticability and
that those factors set high
thresholds. In this matter, I am not
satisfied that the arbitrator considered the question in the
clinically objective manner that
was required when deciding this
issue (See
DHL Supply
Chain (Pty) Ltd v De Beer NO & Others
[2]
),
and his failure to reinstate the applicant must be set aside.
Order
[13]
The relief awarded in paragraphs 141 and
142 of the second respondents arbitration award dated 14 February
2014 is reviewed and
set aside and substituted with the following:
“
141.The
third respondent must reinstate the applicant with retrospective
effect to the date of his dismissal on 20 may 2013 within
14 days of
the date of this order on the same terms and conditions that
government his employment on the date of his dismissal.”
[14]
Paragraph 143 of the arbitration award
remains unchanged save that it is renumbered as paragraph 142 of the
award.
[15]
The third and fourth respondents are
jointly and severally liable for the applicant’s costs, the one
paying the other to be
absolved.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
J
Grogan, SC instructed by Wheeldon,
Rushmere & Cole
SECOND
AND THIRD RESPONDENTS:
M
Simoyi instructed by the State Attorney
,
Port Elizabeth.
[1]
(2011) 32
ILJ
2652 (LAC)
[2]
(2014) 35
ILJ
2379 (LAC)
at para 21