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[2016] ZALCD 24
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Supercare Services Group (Pty) Ltd v Whitenear-Nel NO and Others (D478/14) [2016] ZALCD 24 (16 November 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA
Held in Durban
Reportable
Case
no: D 478 / 14
In the matter
between:
SUPERCARE SERVICES
GROUP (PTY) LTD
Applicant
and
WHITEAR-NEL, (N.O.)
First Respondent
THE COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
Second Respondent
MCNAMARA, CHRISTOPHER
JEROME
Third Respondent
Heard:
20 April 2016
Delivered:
16 November 2016
Summary:
Review of an award - jurisdictional issue – a set of facts may
give rise to separate and distinct causes of action
– unfair
labour practice proved – compensation appropriate –
application dismissed.
JUDGMENT
CELE
J
Introduction
[1]
The Applicant seeks to have an arbitration award dated 22 May 2014
issued in this matter by the First Respondent reviewed, set
aside and
substituted in terms of section 145 of the Labour Relations Act.
[1]
The Applicant seeks a substitution to the effect that the Third
Respondent’s claim of unfair labour practice be dismissed
or
that the Third Respondent is not entitled to any relief. In the
alternative the Applicant seeks a remittal of the matter to
the
Second Respondent for a
de
novo
arbitration hearing before a different Commissioner. The application
was opposed by the Third Respondent in whose favour the arbitration
award was issued.
Background
Facts
[2]
The Applicant was unable to file a transcript of the arbitration
proceeds as no electronic recording appears to have been done.
The
absence of the transcribed record of the arbitration proceedings has
not been relied on as a ground for review. In any event,
by and large
the facts of this matter are common cause as discernible from the
assailed award. A summary of these facts has been
outlined by the
Applicant and the Third Respondent has taken no issue for that
summary. Accordingly, I shall allow myself to be
guided by that
summary, thanks to the Applicant.
[3]
The Applicant had a service agreement with Treverton Schools
(“Treverton”). The Third Respondent was deployed by
the
Applicant, in terms of this service agreement, as the maintenance
manager at Treverton College. The Third Respondent was at
all
relevant times employed by the Applicant while he worked at Treverton
and with their staff. It was therefore critical
that a proper
working relationship be maintained and cultivated between the Third
Respondent and Treverton staff.
[4]
On 9 October 2013, an altercation took place between the Third
Respondent and a Treverton staff member, Mr Dave Purdon (“Mr
Purdon”). Mr Purdon contended that the Third Respondent
threatened him. He then lodged a complaint about that with
his
employer, Treverton. This complaint was forwarded to the Applicant’s
Regional Manager, Mr Mariska Van Heerden (“Mr
Van Heerden”)
by the Treverton headmaster. The Applicant conducted an investigation
into this complaint, which was done by
one of the Operations
Managers, Mr Wessel Louwrens (“Mr Louwrens”). In
the course of October 2013, Mr Louwrens
conducted various interviews
to gather facts about the incident, and concluded his investigation
on 28 October 2013. On 29
October 2013, and pursuant to the
investigation, it was decided to suspend the Third Respondent pending
a disciplinary hearing
to be held on 6 November 2013, on a change of
gross insubordination.
[5]
The disciplinary hearing did convene on 6 November 2013. It was
presided over by the General Manager of outsourcing services
of the
Applicant, Mr Andre Roodt (“Mr Roodt”). The Third
Respondent made several submissions to Mr Roodt in the
hearing as to
why the Third Respondent believed the disciplinary hearing should not
proceed. Mr Roodt adjourned the proceedings
to inter alia
consider these submissions. On 7 November 2013, the Third
Respondent made further written submissions to Mr
Roodt, in support
of his contentions. Mr Roodt answered those submissions on 14
November 2013. In a nutshell, Mr Roodt
accepted that
proper procedures had not been followed beforehand and he was of the
view that the matter should have been attended
to differently, and
should have been dealt with in a meeting with the Regional Manager.
Mr Roodt stated that his task was to assess
the risk caused by the
incident and decide on the required steps to correct the situation.
He proposed what he called a “facilitated
intervention”
to try and resolve the matter and he concluded by uplifting the Third
Respondent’s suspension and instructed
him to resume his normal
duties on 15 November 2013.
[6]
The Third Respondent then reported for work on 15 November 2013, as
instructed. This resulted in a revolt from Treverton,
and a
protest by Mr Noel Coetzee (“Mr Coetzee”) from Treverton
who was then sent to Mr Roodt on the same date.
Mr Coetzee
complained about the Third Respondent’s return to work and the
fact that the affected staff from Treverton did
not testify in the
disciplinary hearing against the Third Respondent. Mr Coetzee
took issue with formal disciplinary proceedings
not actually having
been conducted in respect of the Third Respondent. Mr Coetzee
complained, saying that the Third Respondent
was a renegade, a law
unto himself, and did not respect authority. The Applicant was asked
to transfer the Third Respondent somewhere
else.
[7]
On 18 November 2013, the Third Respondent was then asked by Mr Roodt
not to report for work until Mr Roodt could meet with Treverton
to
try and resolve the matter. The Third Respondent complied. Mr Roodt
met with all the relevant staff from Treverton on 19 November
2013 to
try and resolve the matter. It was agreed that the disciplinary
proceedings would continue and that the Third Respondent
would remain
on paid suspension. It was agreed that the relevant staff from
Treverton would be given the opportunity to participate
in the
disciplinary proceedings. On 20 November 2013, the Third Respondent
was then formally informed not to report for work pending
the
conclusion of the disciplinary proceedings, which were also scheduled
to resume on 22 November 2013.
[8]
The Third Respondent objected on 21 November 2013 to the reconvened
disciplinary proceedings, and raised several preliminary
issues. One
being that Mr Roodt was not impartial. Mr Roodt said that the Third
Respondent was to raise all his issues in the disciplinary
hearing
itself. The disciplinary proceedings convened on 22 November 2013.
The Third Respondent attended and raised all his preliminary
objections, saying that he would not participate on the merits of the
disciplinary hearing. Mr Roodt, having considered the submissions,
decided to withdraw from the disciplinary proceedings.
[9]
On 28 November 2013, the Third Respondent was issued with a fresh
notice to attend a disciplinary hearing to be held on 2 December
2013,
de
novo
,
before a new chairperson. On the following day and in response to
receiving that notice, the Third Respondent asked for further
particulars to the charges, which were provided to him. The Third
Respondent also lodged a grievance, contending that the pending
disciplinary proceedings were founded on harassment, victimization,
abuse and intimidation, and constituted discrimination as
contemplated by the Employment Equity Act, (EEA).
[2]
The Third Respondent was informed that he had to attend the
disciplinary hearing on 2 December 2013, and to raise any issue he
wanted to before the chairperson for determination.
[10]
The disciplinary hearing convened on 2 December 2013 before a new
chairperson, Ms Carmen Gaillard (“Ms Gaillard”).
Ms
Gaillard considered the Third Respondent’s submissions.
She decided that the contentions by the Third Respondent
about issues
relating to the prior disciplinary proceedings on 6 and 22 November
2013 had to be dealt with as a separate issue,
and that she first
would focus on the substance of the charge against the Third
Respondent. She considered the merits of the charge,
and concluded
that the Third Respondent was not guilty of the charge against him.
[11]
Following this disciplinary hearing’s outcome, the Applicant
briefed Treverton accordingly, and advised that the Third
Respondent
had then to return to work. Mr Coetzee from Treverton answered that
the matter was “under review” and under
no circumstances
was the Third Respondent allowed to return to work until the
Applicant heard from him. Then on 15 December 2013,
Mr Coetzee
informed the Applicant that it had been decided to allow the Third
Respondent back on site. As 16 December 2013 was
a public holiday,
the Third Respondent was instructed to, and did resume his normal
duties at Treverton on 17 December 2013. However,
the unfortunate
upshot of all of the above is that Treverton gave notice of
termination of the contract with the Applicant.
[12]
The Third Respondent’s grievance still had to be considered and
concluded. A grievance hearing was held on 21 January
2014. In the
grievance, the Third Respondent expressed his difficulties with Mr
Roodt. The Third Respondent was informed that there
simply was
nothing further to be done in the matter, and all parties were to do
their best to retain good relationships with Treverton.
The Third
Respondent was not satisfied and he then referred an unfair labour
practice dispute to the Commission for Conciliation,
Mediation and
Arbitration (CCMA) in February 2014, asking for compensation.
The
matter came before the First Respondent, as arbitrator, who found
that the Applicant had committed an unfair labour practice
towards
the Third Respondent and awarded him four months’ salary in
compensation.
It
is this award that forms the subject matter of these proceedings.
Chief
Findings of the Commissioner.
[13]
The findings of the Commissioner were made in relation to four
identified issues, namely:
I.
Failure to
follow the disciplinary code;
II.
Fairness of
the suspension;
III.
Effect of
suspension on an employee and
IV.
Determination
of the appropriate remedy.
Failure
to follow the disciplinary code
[14]
While the provisions of a code may either be discretionary or
peremptory, upon a consideration of clause 4.1 and the wording
of the
code, the overall context and evidence of the intention of the
parties, the provisions of the code were found by the Commissioner
to
be peremptory. A breach of the peremptory provisions of the code was
found to give rise to a civil claim for breach of a contract.
The
statutory fairness of the suspension and disciplinary procedures
followed by the employer were found to be issues for consideration.
[15]
A consideration of these issues included a finding whether the breach
was material such as to render the actual procedure followed
unfair
and whether the employer had a legitimate justification for deviating
from the code. The Commissioner found that there were
numerous
serious breaches of the disciplinary code, for example, the initial
notice of suspension was not issued by a person in
authority over the
employee and the employer could not be reasonably said to have been
satisfied that it would be unsafe or undesirable
for the employee to
continue with his duties. Further, the employee was not fully
apprised of the complaint against him initially,
nor was he given a
chance to furnish representations on why he was not to be suspended
on both occasions. The disciplinary action
was instituted way outside
the time limits prescribed and the employee was not properly informed
of the reasons for the delay.
The Commissioner was not satisfied that
there were good reasons for non-compliance with the code.
Fairness
of the suspension
[16]
The Commissioner found that precautionary suspension would be fair if
the employer had a reasonable belief that the presence
of the
employee at the workplace would jeopardise the investigation of the
alleged misconduct or endanger the safety and well-being
of any other
person. There must be an objectively justifiable reason to deny the
employee access to the workplace. The Commissioner
was not satisfied
that the employer had an objectively justifiable reason for excluding
the employee from the workplace as pressure
from Treverton school did
not constitute such a reason. A client in the position of Treverton
could not effectively dictate that
the employee be treated unfairly.
The Commissioner was also not satisfied that the employer had a
reasonable and
bona fide
belief that the employee had
committed serious misconduct. If the matter had been initially
properly investigated and the employee
given an opportunity to make
proper representations, it would soon have been discovered that the
allegations against him were groundless.
Effect
of suspension on an employee
[17]
The Commissioner found that the prejudice which an employee suffered
as a result of an unfair suspension went beyond financial
loss as it
negatively impacted on an employee’s reputation, dignity and
job security. Suspension was a measure with serious
negative
consequences for an employee. The Commissioner accepted the evidence
of the employee that the employee went through a
psychologically
scarring, embarrassing and humiliating experience as a result of the
suspension.
Determination
of the appropriate remedy
.
[18]
The Commissioner found that the relief she could order was governed
by section 193 (4) of the Act which enjoined her to determine
the
dispute on terms which were considered reasonable including the
ordering of compensation. She held that not every compensation
case
derived from an actually calculable loss and that where there has
been no patrimonial loss, compensation will be in the form
of
solatium, so as to address the wrong suffered by the employee and to
deter recidivism. An appropriate relief took into account
the wrong
suffered, the deterrence of future violations of rights and to accord
fairness to all who might be affected by the relief.
Such an order
should be capable of execution. Other than travelling expenses, the
employee was found to have suffered no patrimonial
loss but his
non-financial loss was found to be substantial.
Grounds
for review
[19] Essentially three
grounds of review were identified by the Applicant namely, absence of
jurisdiction, no existence of unfair
labour practice and
inappropriate relief granted against the Applicant.
Jurisdiction
[20] The issue raised by
the Applicant on jurisdiction was firmly founded on what constituted
the real issue in dispute. The Applicant
contended that Third
Respondent’s case was firmly founded on harassment and
discrimination. This, the Applicant said was
evident from the
following:
1.
When
suspended for the first time, the Third Respondent lodged a written
complaint about it. In this complaint, he said, inter alia,
that
there were ‘external forces’ working behind the scene
which led to his suspension;
2.
In
his grievance dated 29 November 2013, the Third Respondent accused
the Applicant of harassment. He said that the charges and
the
disciplinary proceedings brought against him were founded on
harassment. The Applicant’s attention was specifically drawn
by
the Third Respondent to the discrimination provisions in the EEA, and
the fact that such harassment constituted unfair discrimination
in
terms thereof. The Third Respondent demanded that the Applicant
remove all these causes of harassment. As far as the Third Respondent
was concerned, the disciplinary proceedings were part of that
harassment;
3.
On
1 December 2013, the Third Respondent stated that his suspension was
uplifted on 15 November 2013, and that should have been
the end of
the matter. The Third Respondent contended that when the proceedings
recommenced on 22 November 2013, that constituted
harassment. In
particular, the Third Respondent said: ‘My grievances are not
in response to any disciplinary charges as this
alleged occurrence
was ruled on on the 14 November thereby finalising the matter. My
grievance is about the harassment I am being
subject to …..’
The Third Respondent specifically says that his grievance is to stop
harassment in the workplace;
4.
When
the Third Respondent finally returned to work on 17 December 2013, he
did so without reservation and without referring an unfair
suspension
dispute. And this made sense, considering that the Third Respondent
said his grievance was not about the disciplinary
charges, but about
harassment;
5.
The
Third Respondent’s grievance hearing follows on 21 January
2014. It is clear that the contents of the grievance
only
concerned what the Third Respondent considered to be harassment.
When the harassment was not resolved in the manner
the Third
Respondent wanted, he said he would pursue it further;
6.
When
the Third Respondent then referred his dispute to the CCMA on 5 March
2014, no suspension existed. The Third Respondent said
in the
referral that the dispute arose on 6 February 2014. But he was not
suspended on 6 February 2014. This date corresponded
with the outcome
of his grievance hearing of 21 January 2014. The dispute could thus
not be about suspension. Further, the referral
specifically recorded
that the issue was one of discrimination under the EEA.
[21]
The Applicant contended that the above being the case, and on the
facts, the matter could only be pursued to the Labour Court
for
adjudication as a discrimination/ harassment claim in terms of the
provisions of the EEA.
[22]
In response to the submissions of the Applicant on this issue the
Third Respondent said that
it
was trite that the same set of facts might give rise to two or more
distinct causes of action. That being the case, the
litigant
who instituted an action was at liberty to elect which cause of
action he or she intended to rely upon. The Third Respondent
referred
his dispute to the Second Respondent as an unfair labour practice.
The certificate of outcome issued upon the conclusion
of the
conciliation process categorised the dispute as being an unfair
labour practice. The Third Respondent’s request
for
arbitration reflected the nature of dispute as being an unfair labour
practice. The submission is that, based
upon
the aforementioned, the Second Respondent was obliged to assume
provisional jurisdiction to determine, notwithstanding
the Third
Respondent’s classification of the case, whether or not she did
enjoy jurisdiction.
[23]
The contention was further that the record reflects that the dispute
which was arbitrated by the Second Respondent was
indeed one
pertaining to an unfair labour practice and that in the words of the
Applicant in these proceedings:
‘
The
Applicant [the Third Respondent in this Honourable Court] contends
that his suspension from work and the subsequent disciplinary
action
was an Unfair Labour Practice.’
[24]
The Third Respondent said that this utterance was reiterated by the
Applicant when it summarised what it understood the Third
Respondent’s complaints to have been. The Third Respondent’s
heads of argument bear out the nature of his dispute as
having been
an unfair labour practice. The allegations made by the Third
Respondent as to what the specific complaints, which were
addressed
by him at the arbitration, save that the Applicant disputed the
veracity of the complaints made, were not disputed to
have been made
by the Third Respondent in reply.
[25]
In
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another,
[3]
it was
held as follows:
‘
It
is the duty of a court to ascertain the true nature of the dispute
between the parties. In ascertaining the real dispute a court
must
look at the substance of the dispute and not at the form in which it
is presented. The label given to a dispute by a party
is not
necessarily conclusive. The true nature of the dispute must be
distilled from the history of the dispute, as reflected in
the
communications between the parties and between the parties and the
Commission for Conciliation, Mediation and Arbitration (CCMA),
before
and after referral of such dispute. These would include referral
documents, the certificate of outcome and all relevant
communications. It is also important to bear in mind that parties may
modify their demands in the course of discussing the dispute
or
during the conciliation process. All of this must be taken into
consideration in ascertaining the true nature of the dispute.’
[26]
Therefore, in deciding what the real dispute between the parties is,
a Commissioner is not necessarily bound by the description
of the
dispute as given by legal representatives as the labels that the
parties attach to a dispute cannot change its underlying
nature. A
Commissioner is required to take all the facts into consideration
including the description of the nature of the dispute,
the outcome
requested by a party and the evidence presented during the
arbitration. As it were, the true dispute may only emerge
once all
the evidence has been led.
[4]
[27]
The absence of the arbitration transcript is now felt. There is no
telling what the parties said in their opening remarks when
called
upon to give a summary of the issues that the Commissioner was called
upon to resolve. There is no pre-arbitration minute
filed and there
is no record of what evidence was led in respect of the documents
filed in the bundles discovered. It becomes difficult
to determine
why issues pertaining to discrimination, victimization and harassment
featuring in the documents filed were never
testified on, as shown by
no reference thereto in the award. What remains clear though is that:
a)
The
Third Respondent referred his dispute to the Second Respondent
as an unfair labour practice;
b)
The
certificate of outcome issued upon the conclusion of the conciliation
process categorised the dispute as being an unfair labour
practice;
c)
The
Third Respondent’s request for arbitration reflected the nature
of dispute as being an unfair labour practice and
d)
The
award issued addressed the issue of the unfair labour practice.
[28]
The Applicant has correctly pointed out that when the Third
Respondent referred his dispute to the CCMA on 5 March 2014, no
suspension existed. The Third Respondent said in the referral that
the dispute arose on 6 February 2014 when in fact he was not
suspended on 6 February 2014. This date corresponded with the outcome
of his grievance hearing of 21 January 2014. That no suspension
existed on 5 March 2014 did not deprive him of a right to refer an
unfair labour practice dispute relating to suspension. No time
frame
militated against a referral of that dispute. In my view, the
grievance document has no reference to an unfair suspension.
It
cannot then properly be argued that the issue of his suspension had
clearly been abandoned by the Third Respondent. The waiver
of the
suspension issue has not really been argued in this matter. For
whatever reason, the Third Respondent was therefore, at
liberty to
abandon the discriminatory and harassment issues during the
arbitration and to stick to the suspension issue. This might
even
have come about by the agreement of both parties, seeing from the
award, that the Applicant’s representative does not
appear to
have raised the issue for deliberation and resolution. After all, a
set of facts may give rise to separate and distinct
causes of action.
In this respect Court held
in
Fedlife Assurance Ltd v Wolfaardt
[5]
that:
‘
Whether
a particular dispute falls within the terms of section 191 depends
upon what is in dispute, and the fact that an unlawful
dismissal
might also be unfair (at least it is a matter of ordinary language)
is irrelevant to that enquiry. A dispute falls
within the terms
of the section only if the “fairness” of the dismissal is
the subject of the employee’s complaints.
Where it is
not, and the subject of the dispute is the lawfulness of the
dismissal, then the fact that it might also be, and probably
is,
unfair, is quite coincidental for that is not what the employee’s
complaint is about
..’
[6]
[29]
The Applicant has contended, inter alia, that o
n
1 December 2013, the Third Respondent stated that his suspension was
uplifted on 15 November 2013. From that, the Applicant said
that it
should have been the end of the matter. I do not agree. Nowhere in
this statement does the Third Respondent
concede
that the suspension was fair or that he accepted it on any other
ground. It remained open to him to challenge it as he subsequently
did. On the jurisdictional ground of review therefore, the
Commissioner has not been shown to have acted wrongly by assuming
jurisdiction
and dealing with the unfair labour practice. This ground
of review must therefore fail.
The
unfair labour practice.
[30]
The Applicant has correctly said that the suspension of the Third
Respondent was not a disciplinary action but was a precautionary
suspension. The Applicant contends that this suspension cannot
qualify as unfair suspension as envisaged in section 186 (2) (b)
of
the Act. The submission is that, because this is not a case of
suspension as disciplinary action, this
then
only leaves the issue of suspension per se as the first part of
Section 186(2) (b). Whilst holding operation suspension is
clearly an
unfair labour practice, the submission is that it is the continued
existence of suspension that is contemplated by this
part of the
unfair labour practice definition. Where suspension as a
disciplinary action short of dismissal exists, then
it would be
comfortably covered under the second part of Section 186(2) (b). The
first part of Section 186(2) (b), being unfair
suspension per se,
must therefore be something else, and this something else is the
continued existence of suspension under circumstances
that would be
unfair.
[31]
I shall assume the correctness of the approach adopted by the
Applicant save to add that the “something else” therein
referred to cannot be limited to the continued suspension but should
include other considerations surrounding the suspension, such
as the
violation of the provisions of the disciplinary code that the
employer may have set for itself.
[32]
I now have to apply the adopted approach to the given facts. Under
the subtopics fairness of the suspension and effect of the
suspension
in the award the Commissioner identified the factors for
consideration and applied them against the given facts before
her.
She clearly conducted a proper enquiry into the issues before her and
in the absence of the record it cannot be reasonably
said that she
committed any defect as envisaged in section 145 of the Act. From the
given facts, I conclude that the decision she
reached on this issue
cannot be said to be the one that a reasonable decision maker could
not reach.
Inappropriateness of
relief granted against the Applicant.
[33]
The submission was that an award of four months’ salary in
compensation was wholly inappropriate in this case. The Applicant
relied on various issues such as the fact that the Third Respondent
was on paid suspension; the suspension was for a short period
and
that it was precautionary suspension as the employee was always
subject to disciplinary proceedings. The Commissioner applied
her
mind to these issues but went further. She
found
that the prejudice which an employee suffered as a result of an
unfair suspension went beyond financial loss as it negatively
impacted on an employee’s reputation, dignity and job security.
The Commissioner accepted the evidence of the Third Respondent
that
he went through a psychologically scarring, embarrassing and
humiliating experience as a result of the suspension. To her,
an
appropriate relief took into account the wrong suffered, the
deterrence of future violations of rights and to accord fairness
to
all who might be affected by the relief.
[7]
Again she embarked on an appropriate enquiry on the issue and the
conclusion she reached is not the one which a reasonable decision
maker could not reach. Yet again, this ground must fail.
[34]
As I reflect on all issues raised, including the aspect of costs,
when the relations between the parties still subsist, I conclude
that
the following is an appropriate order:
34.1
The review application in this matter is dismissed;
34.2
The Applicant is to pay the costs thereof.
________
Cele
J
Judge
of the Labour Court of South Africa.
APPEARANCES:
FOR
THE APPLICANT:
Mr. S Snyman
Instructed by Snyman
Attorneys
FOR
THE RESPONDENT:
Adv. K Allen
Instructed by Stirling
Attorneys
[1]
Act Number 66 of 1995 hereafter
referred to as the Act.
[2]
Act 55 of 1998.
[3]
(2003) 24 ILJ 305 (CC) at para.52.
[4]
See
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC).
[5]
2002 (1) SA 49 (SCA).
[6]
The issue of the lawfulness of the
dismissal has however been recently resolved by the Constitutional
Court in
Steenkamp and
Others v Edcon
Limited
2016 (3) BCLR 311 (CC).
[7]
[7]
For the appropriateness of the issues
she considered see for example
SA
Post Office Ltd v Jansenvan Vuuren No and Others
(2008) 29 ILJ 2793.