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[2017] ZALCJHB 209
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Phiri v National Bargaining Council for the Catering, Restaurants and Allied Trades and Others (JR243/14) [2017] ZALCJHB 209 (30 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
(Not
reportable)
Case
no: JR 243/14
In
the matter between:
ROSE
PHIRI
Applicant
and
NATIONAL
BARGAINING COUNCIL FOR THE
CATERING,
RESTAURANTS & ALLIED TRADES
First Respondent
GQWETSHA
N.O.
Second Respondent
YUM
RESTUARANTS INTERNATIONAL (PTY) LTD
t/a
KFC
Third Respondent
Heard:
5 July 2016
Delivered:
30 May 2017
JUDGMENT
MYHILL
AJ
Introduction
[1]
This
is an application
inter
alia
to review and set aside the arbitration award issued by the second
respondent, dated 13 January 2015, under case number DSP20/03/13.
The
application is brought in terms of section 145 of the Labour
Relations Act
[1]
on the basis
that – despite the second respondent finding that the dismissal
of the applicant was substantively unfair and
ordering the third
respondent to reinstate the applicant to the date of her dismissal –
he ordered that this be without back
pay. The applicant seeks the
reinstatement to be coupled with 12 months’ back pay.
[2]
The application is
opposed by the third respondent.
Background
[3]
The applicant was
employed by the third respondent during 1995 as a Restaurant General
Manager and after a disciplinary hearing
was found guilty of:
“
Non-compliance
with policies and procedures: The above arises in that you failed to
log a call with the company to fix the credit
card machine that was
faulty and failed to inform your AC [Area Coach] about the problem in
your store.”
[4]
As a result, she was
dismissed and referred an unfair dismissal dispute to the first
respondent which appointed the second respondent
to arbitrate the
dispute. The second respondent decided that the dismissal was
substantively unfair and ordered the third respondent
to reinstate
the applicant to the date of her dismissal without back pay and
ordered the applicant to report for duty at the third
respondent on
or before 21 January 2014.
Grounds
of Review
[5]
Mr Shongwe, on behalf
of the applicant, submitted that the Award is being reviewed because
the second respondent found that a previous
final written warning
issued against the applicant was unfair as it was for an offence that
occurred whilst the applicant was off
duty and before the final
written warning was issued the applicant was not given a chance to
defend herself.
[6]
The second respondent
then ruled that having scrapped the final written warning, what was
left was a new breach which did not deserve
dismissal as a sanction
but, rather, a final written warning which was valid for 6 months.
[7]
This was the basis for
the third respondent finding that the dismissal was substantively
unfair. He disagreed with the applicant
that she should be reinstated
with retrospective effect to the date of her dismissal because she
would benefit financially from
her wrong doing which he believed was
against the interests of justice and fairness. He found that
reinstating the applicant without
back pay of her salary was fair and
appropriate under the circumstances.
[8]
Mr Shongwe submitted
that as the first final written warning was invalid the applicant
should never have been dismissed. The second
respondent found that
the applicant, according to the thirds respondent’s
disciplinary code of conduct, should have been
given a final written
warning rather than dismissal. Her dismissal, however, had caused her
to suffer financially because she was
unemployed for 12 months before
being reinstated. The second respondent thus erred by saying that the
effect of reinstatement with
retrospective effect will be that she
will benefit financially from her wrong doing. His Award should thus
be corrected by ordering
that she be reinstated with retrospective
effect to the date of her dismissal which means she would be entitled
to back pay from
the date of her dismissal to the date of her
reinstatement (21 January 2014).
[9]
Mr Noorbaai, on behalf
of the third respondent, submitted that the applicant has been back
at work since 21 January 2014 and the
decision not to award her back
pay was a rational one. He had a discretion in this regard in terms
of section 193(1)(c) of the
Act which had been properly exercised. He
had clearly explained in his Award why it would not be in the
interests of justice to
award back pay to an individual in the
applicant’s position. He had found her guilty, however, the
sanction of dismissal
was too harsh and he found further that the
employer had acted inconsistently in dismissing her. His conclusion
was thus rationally
connected to his reasons taking into account the
material before him. The applicant had failed to prove that it was a
decision
that no other reasonable decision-maker could come to.
[10]
Mr
Noorbaai referred me to the case of
Kemp
t/a Centralmed v Rawlins
[2]
as authority for his submission that it was correct that the
applicant was not awarded back pay. He submitted that the
requirements
of justice and fairness were met in the exercise of the
second respondent’s discretion not to award back pay. He argued
that
a reasonable arbitrator would have come to the same conclusion.
The applicant was found guilty of misconduct and had a valid final
written warning so this justifies her not being awarded back pay.
Awarding her back pay would financially prejudice the employer.
It
was necessary to discipline the applicant and proper procedures were
followed.
[11]
When I asked Mr
Noorbaai to comment on the seeming contradiction by the second
respondent in his order in paragraph 110 of his Award,
he submitted
that paragraph 108 clarifies 110. In paragraph 108 the second
respondent made it clear that the effect of retrospective
reinstatement would be that the applicant would benefit financially
from her wrong doing. His intention thus was not to reinstate
her to
the date of her dismissal with back pay.
[12]
In reply, Mr Shongwe
submitted that the applicant was erroneously dismissed which resulted
in her being unemployed for 12 months,
so she should have been
awarded back pay retrospectively to the date of her dismissal. The
order of the second respondent was contradictory.
There was no
benefit derived by the applicant from her wrong doing.
Evaluation
[13]
Mr
Noorbaai is incorrect when he submits that the second respondent
exercised his discretion in terms of section 193(1)(c) of the
Act.
[3]
That section deals with the remedy of compensation. The second
respondent did not order that compensation be paid to the applicant
but ordered that she be reinstated to the date of her dismissal
without back pay (p.42 of Bundle). The
Kemp
case he referred me to deals with compensation as a remedy for unfair
dismissal so it is largely inapplicable to the facts of the
present
matter except for the discussion by Zondo JP of the concept of
“judicial discretion” at p.2689 of the judgment.
[14]
Section 193(1)(a)
states that the Court or the arbitrator may—
“
order the
employer to reinstate the employee from any date not earlier than the
date of dismissal.”
[15]
That
means that the Court or the arbitrator has been given a discretion as
to the degree of retrospectivity of the reinstatement.
[4]
This discretion must, however, be exercised judicially.
[16]
In paragraph 110 of his
Award the second respondent ordered the Respondent to reinstate the
Applicant “to the date of her
dismissal without back pay of the
salary.”
[17]
Read on its own that is
a contradictory statement because reinstating an employee to the date
of her dismissal sounds like retrospective
reinstatement. The part -”
without back pay” is inconsistent with the first part. However,
in paragraph 108 of the
Award the second respondent disagreed with
the submission of the applicant that she should be reinstated
retrospectively with a
written warning on the basis that the
applicant would benefit financially from her wrong doing which he
believed to be against
the interests of justice and fairness. I thus
accept that the intention of the second respondent was not to
reinstate the applicant
to the date of her dismissal.
[18]
In paragraph 97 of his
Award, however, he found that the final written warning that the
third respondent relied on in dismissing
the applicant was issued
without the applicant being given an opportunity to state a case in
response to the allegation and it
was for misconduct when she was off
duty. In paragraph 99 of his Award he found that this final
written warning was not properly
issued. He stated further that the
offence that led to her dismissal was a level 3 transgression
and that the respondent’s
disciplinary code of conduct provides
for a final written warning for such offences. He thus found that the
applicant should have
been issued with a final written warning. In
addition to finding that the dismissal was also too harsh he found
that the respondent
acted inconsistently in applying discipline
because other members of management had not reported the
malfunctioning of the Nomad
system (paragraph 102 of the Award).
[19]
The second respondent
did not explain in his Award how the applicant would benefit from her
wrongdoing if she was reinstated with
retrospective effect. The
respondent’s disciplinary code prescribed a final written
warning for the offence for which she
was dismissed. It was on the
basis of her already having a final written warning for a similar
offence that she was dismissed.
The second respondent found that the
first final written warning was improperly issued and that she should
have been issued with
a final written warning for the offence for
which she was dismissed.
[20]
I agree with Mr Shongwe
that the applicant would not have been dismissed if she did not have
that first final written warning on
her record. Owing to that error
on the part of the management of the respondent, the applicant lost
her job and remained unemployed
for almost 12 months before she was
reinstated by the second respondent and ordered to report for work on
21 January 2014.
[21]
The order to reinstate
the applicant without back pay thus makes no rational sense.
[22]
I agree with the
applicant that the decision made by the second respondent not to
reinstate the applicant with full retrospective
effect (i.e. with
back pay from the date of her dismissal to 21 January 2014) is one
that no reasonable decision-maker could make
having considered the
facts of the case.
[23]
I
agree that the second respondent committed misconduct in terms of
section 145(2)(a)(i)
[5]
in
not reinstating the applicant with retrospective effect to the date
of her dismissal.
[6]
[24]
As the third respondent
opposed this application I see no reason for the costs not following
the result.
Order
[25]
In the premises I make
the following order:
1.
The second respondent’s
decision not to make the operation of his Award, dated 13 January
2014, of reinstatement retrospective
to the date of dismissal is
reviewed and set aside;
2.
Paragraph 110 of the
second respondent’s arbitration Award is amended to read as
follows:
“
I
order the Respondent, Yum Restaurants International (Pty) Ltd t/a
KFC, to reinstate Ms Rose Phiri with full retrospective effect
to the
date of her dismissal with back pay from the date of her dismissal to
20 January 2014.”
3.
The back pay must be
paid to the applicant on or before 31 May 2017.
4.
The third respondent is
to pay the costs of this application.
_______________________
E.
Myhill
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Mr Shongwe
Instructed
by:
For
the Respondent: Mr Noorbaai
Instructed
by:
[1]
66
of 1995, as amended. (the Act)
[2]
[2009]
ZALAC 8
;
[2009] 11 BLLR 1027
(LAC); (2009) 30 ILJ 2677 (LAC).
(
Kemp
)
[3]
Section
193(1)(c) provides:
“
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal
is unfair, the Court or the arbitrator may—
(c)
order the employer to pay compensation to the employee.”
[4]
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & Others
2009 (3) SA 493
(SCA); (2009) 30 ILJ 829 (SCA) at para 32.
[5]
This
section provides:
“
(2)
A defect referred to in subsection (1), means—
(a)
that the commissioner—
(i)
committed misconduct in relation to the duties of the commissioner
as an arbitrator.”
[6]
See
test for review in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) at para 110.