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[2017] ZALCJHB 226
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Sekwati v CCMA and Others (JR2032/15) [2017] ZALCJHB 226 (19 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO
: JR2032/15
DATE
: 2017-04-19
In
the matter between
JOHN
RAMOTLAU
SEKWATI Applicant
and
CCMA First
Respondent
DUMISANI
NGWENYA Second
Respondent
EDCON
LTD Third
Respondent
JUDGMENT
STEENKAMP,
J
:
This
[1]
is an application by the applicant, Mr John Ramotlau
Sekwati, to have an arbitration award by Commissioner Dumisani
Ngwenya, a panellist of the CCMA, reviewed and set aside. It
arises from the dismissal of the employee by his employer, Edcon
Ltd,
the third respondent.
The
employee was a store manager of Edcon’s Jet Mart Germiston
store. The company had implemented a strategy commonly
known as
an “SOP” (an abbreviation for “Stock Optimisation
Procedure”). The employee went on sick
leave from
22 November 2014 and returned on 2 December. There is
a dispute whether he was then granted further
compassionate leave
after that; I will return to that aspect, as it forms part of the
grounds for review.
On
12 December Mr Mike Weston conducted an audit of the store and
found it wanting. That was preceded by the employee
having been
given a verbal reprimand on 10 December. The employee did not
challenge that reprimand in the CCMA by way of
an unfair labour
practice referral or, indeed, in terms of any internal process.
On 13 December (a Saturday) Mr Mabena
also visited the store and
similarly found that the SOP had not been complied with. On
17 December Ms Karien Kruger
again visited the store and found
that it was still in disarray despite the employee having been
reprimanded a week earlier (on
10 December) and despite the follow-up
visits. On 18 December Mr Weston (who is the Senior
Optimisation Manager) saw fit
to send in a task team to turn the
store around. Although the employee complained that he was
excluded from that process,
it appears from Ms Kruger’s
testimony that she walked the floor with him on at least two
occasions (on 17 and 30 December)
and also that the task team had
communicated with the employee’s line manager, who would then
have been in touch with him.
The task team was in place from 18
to 22 December. Another eight days after that, on 30 December,
Ms Kruger again visited
the store. She described what she found
comprehensively at the arbitration but it was perhaps summed up by
these words:
“
So on the 17th December myself
[
sic
] visited the store with chain visual and we found that
the store is in a bad state. I also found missed mark-ups on
girls
wear, after actually verifying with Ismail, who is the ROM,
submit price adjustments were all up to date, according to him.
He even confirmed to me that he actually walked the store with the
EDA scanner himself, doing spot checks…”
And,
in summary, she then stated that one of the primary campaigns that
had to be implemented at that stage, namely the “Back to-School”
campaign, had not been put in place. It is against that
background that disciplinary proceedings were instituted against
the
employee and he was dismissed for gross dereliction of duty.
The
arbitrator found that the dismissal was substantively fair but
procedurally unfair. The procedural unfairness stemmed
from the
fact that at the internal disciplinary hearing, after the chairperson
had found that the employee had committed the misconduct,
she did not
give him an opportunity to present evidence in mitigation. The
arbitrator took that into account, finding that
there was procedural
unfairness, but then stated:
“
In determining whether to order
compensation, I have considered the fact that the applicant [the
employee] has committed serious
misconduct, and the egregious nature
of his misconduct militates against any monitory order, as it would
mean that [he] would profit
from his deplorable conduct; I thus make
no compensation order in respect of the procedural flaw.”
On
review the employee takes issue with that compensation order, or
rather the lack of compensation, given the procedural unfairness,
as
well as a number of grounds of review on the merits. The heads
of argument were prepared by the employee’s erstwhile
attorney,
Mr Mkhize. When the matter was called today, Mr
Geldenhuys
appeared for the employee.
To
his credit, he abandoned two of the grounds of review: The one was
that the employee, through his then attorney, complained of
double
jeopardy – that arises from the fact that he was reprimanded on
10 December and then disciplined subsequently.
Mr
Geldenhuys
,
quite correctly, abandoned that ground as it is clear that the
reprimand related to the period before 10 December and the
further discipline to the period subsequent to that.
The
second issue raised initially was that it was not shown that Edcon
had suffered any loss – that was also abandoned by
Mr Geldenhuys.
The
third issue was that the employee’s then attorney argued that
if his so-called “dereliction of duty” were
to be
addressed at all, it was a matter of poor performance and not of
misconduct – Mr Geldenhuys also did not pursue
that grant
of appeal.
What
was left was the issue on compensation for procedural unfairness, and
then the finding of the arbitrator that the employee
did make himself
guilty of gross dereliction of duties. His main attack on that
finding stems from the period of sick leave.
Arising from that,
Mr
Geldenhuys
argued that the arbitrator did not properly
apply his mind to the evidence before him, did not weigh up the
probabilities and did
not come to a balanced conclusion.
As
far as the sick leave is concerned, it is common cause that the
employee did go on sick leave from 21 November until 2 December.
What is disputed is what happens after that. He says that his
line manager verbally granted him further compassionate leave
from 3
until 10 December. Arising from that, he argues that he was not
responsible for the state of the store when he returned
on
10 December and when Mr Weston visited the store on 12 December.
There
are two answers to that attack: The first is that the
arbitrator did weigh up the probabilities. He had regard to the
leave
records and noted that there was no record at all of the employee
having been given leave subsequent to 3 December.
His version
that he was given further leave verbally by his line manager was also
not put to the company’s witnesses and
the employee failed to
call the line manager to corroborate that version. On the
probabilities the arbitrator’s finding
is not so unreasonable
that no other arbitrator could have come to the same conclusion.
But
in any event, as Ms
Leyden
pointed out, it is a bit of a red
herring. The employee was reprimanded on 10 December –
the events after that date
led to his dismissal, and not the events
before that, even during the time when he says he was on
compassionate leave; that grant
of review must therefore fail.
I
will return to the issue of compensation, having dealt with the
substance. On the substance, once again, the arbitrator
weighed
up the probabilities, he weighed up the evidence before him and he
came to the conclusion that the employee was guilty
of a gross
dereliction of his duties. That conclusion, given the evidence
before the arbitrator – and now before this
Court -- is not so
unreasonable that no other arbitrator could have come to the same
conclusion. It must be seen against
the background of at least
two visits to the store by Mr Watson, two visits by Ms Kruger and one
by Mr Mabena. The employee
had more than sufficient
opportunity to turn the store around. He did not do so, thus
necessitating the implementation of
a task team, and even then, after
the task team had left, he did not implement the necessary protocols
for the “Back to School”
campaign.
The
test on review is by now trite; it is, as I have said, the one set
out in
Sidumo v Rustenburg Platinum Mines
[2007]
12 BLLR 1097
(CC), as expanded upon by the SCA in
Herholdt
v Nedbank
(2013) 34
ILJ
2795 (SCA). In that case the court held at paragraph 25:
“
For a defect in the conduct of
the proceedings to amount to a gross irregularity, as contemplated by
section 145(2)(a)(ii), the
arbitrator must have misconceived the
nature of the inquiry or arrived at an unreasonable result. A
result will only be unreasonable
if it is one that a reasonable
arbitrator could not reach on all the material that was before the
arbitrator. Material errors
of fact, as well as the weight and
relevance to be attached to particular facts, are not in and of
themselves sufficient for an
award to be set aside, but they are only
of any consequence if their effect is to render the outcome
unreasonable.”
In
this case the arbitrator carefully considered the evidence before
him, he considered the probabilities and he came to a conclusion
that
another arbitrator could reach. The award is not reviewable on
the substance of that finding.
That
leaves the question of compensation, having found that the employer
did act procedurally unfairly. As both Ms
Leyden
and Mr
Geldenhuys
accepted, the arbitrator has a discretion to grant compensation for
procedural unfairness, which is in the nature of a
solatium
.
Ms
Leyden
referred in this regard to the judgment of the Constitutional Court
in
Equity Aviation Services
(Pty) Ltd
v CCMA
2009
(
1
)
SA
390
(CC), where
that court emphasised the discretionary nature of compensation under
sections 193 and 194 of the LRA.
As
was explained by this court recently in
Solidarity obo Eminis v
Sirius Risk Management (Pty) Ltd
on 20 August 2015, this
discretion operates at two levels; first, the court has a discretion
whether or not to award any compensation
pursuant to a finding of
procedural fairness; and, secondly, once the court has elected to
award compensation, the compensation
must be just and equitable.
The
first point of enquiry therefore is whether the court, or the
arbitrator in this case, should grant compensation at all.
The
arbitrator decided not to, given the gross nature of the misconduct –
that is a discretionary remedy and a discretionary
decision.
It
is not unprecedented, for example, in
Kemp t/a
Centralmed v Rawlins
(
2009
)
30
ILJ
2677
(
LAC
),
where the Labour Appeal
Court decided to refuse compensation notwithstanding that the
dismissal in that case was held to be unfair.
In this case the
arbitrator properly applied his mind to the question whether or not
he should award compensation. This Court
or another arbitrator
may have decided otherwise, but the court will not likely interfere
with a discretionary remedy, especially
on review, as opposed to
appeal. In exercising his discretion, the arbitrator did not
act so unreasonably that no other arbitrator
could have exercised his
or her discretion in the same way. That ground of review must also
fail.
With
regard to costs, both parties asked that costs should follow the
result. I see no reason in law or fairness to differ.
ORDER
The
application for review is dismissed with costs.
__________________________
STEENKAMP
J
APPEARANCES
APPLICANT:
C J Geldenhuys (attorney).
THIRD
RESPONDENT: Ms S Leyden of Shepstone & Wylie.
___________________________
STEENKAMP
J
JUDGE
OF THE HIGH COURT
[1]
Please note: This is the transcript of an ex tempore judgment handed
down on 22 April 2017. The transcript was only sent to me
for
editing and signature on 30 May 2017.