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[2017] ZALCJHB 177
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Giyani Spar v Commission for Conciliation, Mediation and Arbitration and Others (JR1605/13) [2017] ZALCJHB 177 (3 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not reportable
Case
no: JR 1605/13
GIYANI
SPAR Applicant
And
COMMISSION
FOR CONCILIATION MEDIATION &
ARBITRATION First
Respondent
MR.
B.E.R.
HONE Second
Respondent
SACCAWU
obo RODNEY
BALOYI Third
Respondent
Heard
on: 1 February 2017
Delivered: 3 February 2017
Summary:
JUDGMENT
VAN NIEKERK J
[1]
This
is an application to review and set aside an arbitration award issued
by the second respondent, to whom I shall refer as ‘the
commissioner’. In his award, the commissioner found that the
third respondent had been unfairly dismissed by the applicant,
and
ordered his reinstatement.
[2]
The
material facts are not in dispute and are recorded in the
commissioner’s award. The third respondent commenced employment
in March 2000. He was dismissed on 5 February 2013 and at the time of
his dismissal, was employed as a front-end supervisor. The
applicant’s owner testified that when the former branch manager
left the applicant in September or October 2012, he decided
that he
would not appoint a new manager but would divide responsibility for
the various components of the applicant’s management
between
the supervisors, including the third respondent. Specifically,
evidence was led that the third respondent was instructed
to require
staff to clock in and out for tea and lunch, an instruction that the
owner assumed had been carried out. He discovered
during the course
of January 2013 that the third respondent had in fact not carried out
his instruction. A disciplinary enquiry
was convened on 23 January
2013 when the third respondent was found guilty of a failure or
refusal to carry out an instruction
and summary dismissed.
[3]
In
his award, the commissioner accepted that the reasonableness of the
rule in question (i.e. the requirement that the third respondent
carry out reasonable instructions) was not an issue but what was in
dispute, in essence, was whether the applicant had proved the
alleged
misconduct. What the evidence disclosed was a version by the owner
that he had specifically instructed the third respondent
to direct
employees to clock in and out for tea and lunch, and a version by the
third respondent who denied that he had ever received
such an
instruction. The commission accepted the third respondent’s
version. He did so for three reasons. The first related
to
documentary evidence which suggested to the commissioner that the
owner and the third respondent had not investigated the consequences
of introducing clocking in and out for lunch and tea breaks in the
light of a clocking system that was in place and which provided
for
the automatic deduction of time for lunch and tea. The commissioner
thought that had the third respondent been asked to implement
the
change, being aware of the system of automatic time deductions, he
would have mentioned this to the owner before carrying out
the
instruction. Further, the evidence indicated to the commissioner that
employees had never been required to clock in and out
for tea and
lunch breaks since the introduction of the automated system. He
considered that the introduction of a significant change
to the
timekeeping system would require considerable prior communication
with employees by senior management and not via a disputed
suggestion
to a supervisor. Further, the commissioner noted the owner’s
testimony that there was no manager in the store
between the
departure of the previous manager in September or October 2012 and
the appointment of a new manager in March 2013,
but that evidence had
established that a Mr Roodt had been established as an acting manager
in January 2013. On this basis, the
commissioner found that the
owner’s evidence could be called into question. For these
reasons, the commissioner found that
the applicant had failed to
prove that the third respondent had carried out a reasonable
instruction and was grossly insubordinate
in doing so.
[4]
The
grounds for review concern the commissioner’s assessment of the
evidence. The primary ground for review pursued at the
hearing of the
application was that the commissioner had misdirected himself by
finding as he did in circumstances where the third
respondent had
confirmed at the outset of the hearing that the issues in dispute
were whether the instruction given to him was
a reasonable
instruction, and whether the sanction of dismissal was too harsh. In
other words, the applicant contends that the
third respondent had
never disputed the fact that the instruction had been given to him,
and that it was not open to the commissioner
to make a finding to
this effect.
[5]
The
record of the proceedings under review discloses that in the opening
statements made by the parties’ representatives,
the existence
of the instruction was not placed in dispute. Indeed, the
commissioner questioned the third respondent’s representative
who had stated that the third respondent’s case was that the
instruction that he had been given was not one that he, as a
supervisor, could be expected to discharge. The commissioner
interpreted this to mean that the instruction given ‘was not
applicable to the applicant’. In other words, and as confirmed
by the commissioner with the third respondent’s representative,
the instruction was not reasonable. The commissioner accepts this
formulation of the dispute and accepts that the issues that he
was
required to decide first with the instruction given to the third
respondent was reasonable, and if so, whether his refusal
to comply
with instruction ought fairly to attract the sanction of dismissal.
[6]
As is
evident from the terms of the award, this is not the basis on which
the commissioner proceeded. Instead, he found that there
had been no
instruction issued by the owner to the third respondent. In my view,
it was not open to him, given the terms in which
the dispute had been
framed by the third respondent’s representative, to make this
finding. In any event, none of the three
reasons proffered by the
commissioner for making the finding he did are sustainable, having
regard to the evidence. What the commissioner
was required to do,
confronted as he was with a factual dispute, was to determine the
probability of the respective versions that
served before him. None
of the reasons referred to in the award. None of the reasons
mentioned by the commissioner serve to establish
that the evidence
given by the applicant’s owner was any more or less probable
then that given by the third respondent.
[7]
For
the above reasons, in my view, the commissioner’s factual
finding that the applicant’s owner did not issue an instruction
to the third respondent to ensure that employees clocked out for
lunch and tea breaks falls outside of a band of decisions to which
a
reasonable decision-maker could come on the available evidence. That
finding therefore stands to be reviewed and set aside.
[8]
However,
that leaves the issue of the appropriateness of dismissal as a
sanction. This matter was not canvassed by the commissioner,
on
account of his factual finding. The only evidence of any consequence
in relation to the appropriateness of sanction is the fact
that the
third respondent had relatively long service (12 years) and that the
offence in question was his first disciplinary offence.
Although the
applicant’s owner gave evidence as to hs willingness (or, more
accurately, his unwillingness) to continue to
work with the third
respondent, this was in relation to the remedy of reinstatement
rather than the appropriate sanction for the
misconduct committed by
the third respondent. In these circumstances, in my view, the matter
ought to be remitted to the first
respondent for consideration, by a
different commissioner, of an appropriate sanction for the offence of
a failure to comply with
a reasonable instruction.
[9]
I
make the following order:
1.
The
finding by the second respondent that the applicant had failed to
prove that the third respondent had refused to carry out a
reasonable
instruction is reviewed and set aside
2.
The
matter is remitted to the first respondent for consideration by a
commissioner other than the second respondent of the appropriateness
of dismissal as a sanction for the misconduct committed by the third
respondent. To this end, the commissioner is entitled to have
regard
to the existing record, and may require the parties to lead further
evidence or file any submissions necessary to make a
determination in
this regard.
3.
There
is no order as to costs.
_____________________
Van Niekerk J
Judge
of the Labour Court
APPEARANCES
APPLICANT:
D.A. Swanepoel, Thomas & Swanepoel Inc, Tzaneen
THIRD
RESPONDENT: Union official