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[2017] ZALCJHB 17
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Primary Asset Administrative Services v Moloi and Others (JR1285/16) [2017] ZALCJHB 17 (20 January 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
No:
JR1285/16
In the
matter between:
PRIMARY ASSET ADMINISTRATIVE
SERVICES
Applicant
And
MMASECHABA MOLOI
1
st
Respondent
THEMBA MICHEAEL CEDA
2
nd
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND
ARBITRATION HELD AT
JOHANNESBURG
3
rd
Respondent
HEARD:
17 January 2017
DELIVERED:
20 January 2017
JUDGMENT
PRETORIUS,
AJ
Introduction
[1]
This is an unopposed
application in terms of which the Applicant seeks an order that the
arbitration award made by the second respondent
dated 23 May 2016 be
remitted to the third respondent for arbitration
de
novo,
before a
commissioner, other than the second respondent. Alternatively,
reviewing and setting aside the arbitration award
dated 23 May 2016
issued by the second respondent and substituting same with an order
that the dismissal of the first respondent
was substantively fair.
Background
[2]
The first respondent
had been employed by the applicant as a claims technician for
approximately one (1) year until she was dismissed
for negligence on
29 February 2016. At the time of her dismissal, the first
respondent earned a salary of R17 400.00
(seventeen thousand
four hundred Rand) per month.
[3]
The first respondent
was dismissed following a disciplinary enquiry wherein she was
charged and found guilty of negligence, and
thereafter a sanction of
dismissal was imposed. The first respondent challenged the
substantive fairness of her dismissal
at the arbitration. The
second respondent found that the dismissal was substantively unfair.
[4]
Central to this
conclusion was the issue as raised by the first respondent that she
was singled out and other employees in the identical
situation as
her, were all guilty of the same offence. The first respondent
alleged that although other employees were guilty
of failing to meet
the required protocols within the prescribed time period of 48 hours,
no disciplinary action was taken against
them.
[5]
With regard to the
issue of consistency having been raised by the first respondent, it
was the applicant’s case that such
contention was untenable
given that the supervisor (Albert Nicolson) of two of the other
employees who had made themselves guilty
of the same infraction had
been dismissed for failing to take disciplinary action against such
employees who failed to meet the
protocols and failed to provide
valid and sufficient reasons for not doing so.
[6]
The second respondent
did not accept the explanation provided by the Applicant and, in a
nutshell, concluded that in particular
in relation to the employees,
Jerode and Kaveshnee, who reported to a different supervisor than the
applicant (Albert Nicolson),
it was clear that they had committed the
same infractions as the first respondent and yet nothing happened to
them.
[7]
As such, the second
respondent concluded that the dismissal of the first respondent was
substantively unfair. As a consequence,
the second respondent
ordered the applicant to retrospectively reinstate the first
respondent on the same terms and conditions
that prevailed prior to
her dismissal. A significant further factor to be considered in
this matter relates to the fact that
it was common cause that the
first respondent had a valid and extant final written warning for a
similar offence.
Review
grounds
[8]
The applicant relies in
its founding affidavit on seven grounds for review which it amplified
also in its supplementary affidavit.
I do not intend repeating
such grounds of review here, but will deal with them in the analysis
hereunder.
Applicable
legal position
[9]
I do not deem it
necessary to extensively address the relevant test to be applied in
proceedings such as this. The test laid down
in the Constitutional
Court in
Sidumo v
Rustenburg Platinum Mines
[2007] ZACC 22
;
2008
(2) BCLR 158
(CC), namely
that
an arbitration award will be reviewable if it is one that a
reasonable decision-maker could not reach, is well established.
[10]
The Labour Appeal Court
confirmed in
Fidelity
Cash Management Services v CCMA
(2008) 29 ILJ 964 (LAC) that there can be no doubt under Sidumo that
“…
the
reasonableness or otherwise of a commissioner's decision does not
depend - at least not solely - upon the reasons that the commissioner
gives for the decision. In many cases the reasons which the
commissioner gives for his decision, finding or award will play a
role in the subsequent assessment of whether or not such decision or
finding is one that a reasonable decision maker could or could
not
reach. However, other reasons upon which the commissioner did
not rely to support his or her decision or finding but
which can
render the decision reasonable or unreasonable can be taken into
account. This would clearly be the case where the commissioner
gives
reasons A, B and C in his or her award but, when one looks at the
evidence and other material that was legitimately before
him or her,
one finds that there were reasons D, E and F upon which he did not
rely that could have relied which are enough to
sustain the
decision.”
[11]
Ultimately, whether or
not an arbitration award or decision or finding of a CCMA
commissioner is reasonable, must be determined
objectively with due
regard to all the evidence that was before the commissioner, and what
the issues were that were before him
or her.
[12]
The Labour Appeal Court
in
Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) restated the applicable test as follows:
“
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.”
Analysis
[13]
The applicant
specialises in providing insurance services to its clients and the
first respondent worked within the section where
such insurance
claims were processed, and this had to occur within 48 hours of
receipt of such claim. All employees in the
same position as
the first respondent were expected to meet the 48 hour deadline.
In the event that an employee failed to
meet the standard,
disciplinary action would normally be taken where, on a first
infraction an employee would be given a final
written warning,
whereafter should a further infraction follow such employee would
face dismissal.
[14]
After the applicant had
been dismissed, disciplinary action was taken against Albert
Nicolson, the supervisor of Jerode and Kaveshnee,
for failing to take
disciplinary steps against them as they had breached the 48 hour
protocol and they reported to him. He
was eventually dismissed
for this failure.
[15]
It is clearly apparent
that the second respondent did not accept that the disciplining of
the supervisor of Jerode and Kaveshnee
equated to the discipline
meted out to the first respondent, thus rendering the applicant’s
approach to discipline inconsistent
and consequently unfair.
[16]
I agree with the second
respondent that the imposition of disciplinary action against the
supervisor of Jerode and Kaveshnee which
lead to his dismissal is not
comparable to the discipline meted out to the first respondent.
The fact that Jerode and Kaveshnee
was not disciplined at all,
notwithstanding their supervisor having been dismissed, renders the
conduct of the first respondent
in the exercise of discipline
inconsistent insofar as it relates to the first respondent, Jerode
and Kaveshnee. At the very
least, they should have received
final written warnings if the applicant wanted to be consistent.
The applicant clearly did
not compare apples with apples by its
attempt to justify the dismissal of the first respondent by comparing
her situation with
that of the supervisor of Jerode and Kaveshnee who
had been dismissed. See in this regard
SRV
Mills Services (Pty) Ltd v CCMA
(2004) 25 ILJ 135 (LC).
[17]
What is curiously
absent from the second respondent’s judgement is the complete
failure to refer at all to the fact that the
first respondent had a
valid and extant final written warning for the same offense which
occurred approximately a month earlier.
[18]
To complicate matters
further, there was no evidence before the second respondent
whatsoever as to whether Jerode and Kaveshnee
had previously been
disciplined, or that they had extant final written warnings
applicable to them. This matter is not covered
at all in the
evidence and one cannot speculate in this regard.
[19]
I will now deal with
the various grounds of review as relied on in the founding and
supplementary affidavits of the applicant.
[20]
With reference to the
first review ground, the applicant makes much of the trust
relationship having been destroyed between the
first respondent and
the applicant. However, on consideration of the evidence presented,
it is clear that no evidence in relation
to the trust relationship
had been led during the arbitration. Submissions that the trust
relationship has been destroyed
will not suffice. See:
Edcon v Pillemer NO
(2009) 30 ILJ 2642 (SCA). I will return to this aspect
hereunder.
[21]
With reference to the
second review ground, I disagree that the first respondent was
dismissed for the exact same offence as a senior
employee (Nicolson)
in the employ of the applicant for the reasons referred to above.
[22]
I am not persuaded that
the second respondent acted with bias in favour of the first
respondent which materially affected the outcome
of the award (the
third review ground). The references relied upon by the applicant is
indicative of the second respondent’s
rejection of the
consistency argument as raised by the applicant before the second
respondent.
[23]
The applicant’s
contention that the second respondent’s misquoting of who
represented the first respondent, constitutes
a gross irregularity in
the conduct of the proceedings (the fourth review ground). I am of
the view that this mistaken reference
by the second respondent must
be seen for what it is, and does not in itself constitute an
irregularity which would render the
award unreasonable.
[24]
I agree that the
position in regard to Tamerine was justified by the applicant during
the arbitration proceedings (the fifth review
ground). I do not
believe that the inconsistency as found by the second respondent
focused on the circumstances of Tamerine.
The glaring
inconsistency relates to the failure by the applicant to have
disciplined Jerode and Kaveshnee, where they have committed
the exact
same infraction as the first respondent.
[25]
With reference to the
sixth review ground, I agree with the applicant that the second
respondent’s failure to consider that
at the time of the first
respondent’s the dismissal she was on a final written warning
for negligence is problematic.
I disagree however that there is
any evidence to suggest that Jerode and Kaveshnee did not have final
written warnings applicable
to them.
[26]
Lastly, and with
reference to the seventh review ground, I disagree that the second
respondent must the crux of the applicant’s
case in his
rejection of the applicant’s attempt at establishing that it
had treated the first respondent consistently. As
no disciplinary
action was taken against Jerode and Kaveshnee, the discipline meted
out to the first respondent was inconsistent
and renders same
substantively unfair.
[27]
However, the second
respondent’s complete failure to deal with the fact that the
first respondent was subject to an extant
final written warning,
renders his award unreasonable, particularly in regard to the relief
granted, being retrospective reinstatement.
[28]
In cases of employees
being subject to a final written warning, I agree with the judgement
in
Transnet Freight
Rail v Transnet Bargaining Council
(2011) 32 ILJ 1766 (LC) at par 38 where it is stated that employees
already on a final written warning leaves the employer with
little
choice but to dismiss them. In this judgement (at paragraph 42) the
Labour Court further concluded that the presence of
a final valid
final written warning at the time of the commission of the same or
similar form of misconduct should be properly
interpreted as
aggravating in nature, and that the principles of progressive
discipline required such a re-offending employee usually
to be
considered irredeemable.
[29]
By virtue of the
aforegoing, I have considered referring this dispute back to the
third respondent for rehearing, but have concluded
that I am in as
good a position to deal with this dispute on the record, and that no
good purpose would be served in a remitting
the matter.
Conclusion
[30]
I therefore conclude
that given the inconsistent treatment of the first respondent renders
her dismissal substantively unfair. However,
given that at the time
of her dismissal she was subject to a valid final written warning,
the award of retrospective reinstatement
is inappropriate and not one
that a reasonable decision maker could reach. I therefore consider an
appropriate award to be compensatory
in nature, and conclude that it
would be fair and equitable to award compensation in the amount equal
to 4 months’ remuneration.
I have reached this
conclusion, having regard particularly to the first respondent’s
relatively short length of service.
Order
In the
premises, I make the following order:-
1.
The second respondent’s award is
reviewed and set aside and replaced with the following order:
1.1
The dismissal of the first respondent was
substantively unfair;
1.2
The retrospective reinstatement of the
employee is reviewed and set aside and substituted with an order that
the applicant pay compensation
to the first respondent in an amount
equal to four months remuneration, being R 69 600.00 (sixty nine
thousand six hundred
rand), together with interest thereon at the
prescribed rate from 29 February 2016 to date of payment;
1.3
The said sum is to be paid to the first
respondent within ten (10) days of the date of this judgment;
1.4
There
is
no order is made as to costs.
_____________________
Pretorius
AJ
Acting
Judge of the Labour Court
Appearances:
For the
Applicant: Mr C McAdam
Instructed
by:
Lee and McAdam Attorneys