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[2017] ZALCJHB 220
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Mbawuli v Commission for Conciliation, Mediation and Arbitration and Others (JR2524/13) [2017] ZALCJHB 220 (8 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
case
no: JR2524/13
In
the matter between:
MZUKISI
MBAWULI Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
THEMBEKILE
NSIBANYONI N.O.
Second
Respondent
PICK
‘N PAY RETAILERS (PTY)
LTD Third
Respondent
Heard
:
15 February 2017
Delivered
:
08 June 2017
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review and set aside and
arbitration award under case number GAJB 5282-13 dated the 17
th
October 2013. The award by the second respondent (the Commissioner)
found that the dismissal of the applicant for insubordination
was
substantively fair.
[2]
The applicant was dismissed following a disciplinary hearing in
relation to four charges. At the arbitration, the finding that
the
dismissal was substantively fair was only in relation to the
following charge: “
Insubordination in that you did not
respond to a lawful instruction at the time of the audit Menlyn
Clothing Store”
.
[3]
Prior to his dismissal, the applicant was employed by the third
respondent (the company) as an internal auditor. The instruction
referred to in the charge was from his manager, one Makgatho, who had
sent him and his colleague, Ribisi, emails on the 7, 10,
11 and 12
December 2012.
[4]
The applicant and Ribisi had conducted an internal audit of the
company’s Menlyn store and had submitted a report regarding
this on the 28 November 2012. Prior to this Makgatho had sent an
e-mail to the applicant, Ribisi and others instructing them to
check
compliance with Occupational Health and Safety (OHS) in the clothing
audits.
[5]
In regard to a query to the applicant and Ribisi, Makgatho sent the
following emails:
5.1 On Friday 7 December 2012 at 12:07
pm an email containing extracts of the report stating: “
Kindly
check this finding for Menlyn and report back to me with the correct
info. The finding is also noted in Cresta, however there
is nothing
said about the below on the working paper for Menlyn.”;
5.2 On Friday 7 December 2012 at 14:09
pm a further email was sent to them with the following question: “
Was
the initial report checked prior to sending?”
At 02:11 another email stating “
Was
OHS fully implemented in this store?”
5.3 On Monday 10 December 2012 at
09:18 am Makgatho sent Ribisi and the applicant the following
message: “
I am still awaiting your response”
5.4 On Tuesday 11 December a further
email stating
inter alia “I am still waiting your response.”
5.5 On Wednesday 12 December 2012 at
08:55 am a further email was sent to them stating: “
This is
the 3
rd
e-mail I am sending, may I have the
response by 13h00 today please
.”
[6]
The evidence before the Commissioner was that the applicant sent an
email to Ms Ribisi, copied to Makgatho at 17:01 pm
on Friday the
7
th
of December which stated “
Have a look I have
made changes.
” Attached to the email was the Menlyn draft
report which contained a comment from Makgatho contained in the
report which
she had sent attached to her earlier e-mails to the
applicant, and Ms Ribisi.
[7]
It was applicant’s evidence before the Commissioner that on the
4
th
of December he had logged a problem with his laptop at
the Company’s help desk explaining he was experiencing the
following
problems:
“…
the
computer freezes and requires to be re-booted and when the computer
is locked, it needs to be rebooted in order to reconnect.
. . ”
[8]
The applicant told Makgatho that he was having problems with his
laptop, which problems included receipt of emails:
“
I
even spoke to Kgadi about my computer to say you know what, even if
you guys are sending mails to each other here in the office,
I don’t
get my emails as you are sending them. I would get my emails the
following day or uh, uh the following Monday and
I don’t know
what causes that problem. And I will say maybe this computer is even
old, you see. So that, that, that’s
when I reported my
computer, because Madam Commissioner what I said was that not that I
don’t get e-mails, but if you sent
emails now, you will send to
both of us maybe to me and you, you would receive yours today and I
wouldn’t, I wouldn’t
receive mine now. Until maybe you
phone (inaudible) I haven’t received it yet. Maybe two, three
days, or one day it. It,
it was depending, it was not like something
I could really track to say it happened after how many hours or how
many day. . . ”
[9]
The Commissioner stated the following in her Award with regard to the
insubordination charge:
“
5.6
What is however disturbing is that Mokgatho attempted to bring the
errors to the attention of the applicant on numerous occasion
yet she
did not get any response. The applicant, in his attempt to justify
why he did not respond to the emails sent him pulled
out an excuse
that not only is surprising but improbable and absurd for the
following reasons:
5.7
Anyone who can access emails knows that if the laptop freezes, one
cannot receive emails,
however when the laptop is fixed
, all
the emails are received by the user. The applicant stated he received
some emails but he did not receive the emails of Makgatho.
This is
highly improbable, it is my finding that the applicant deliberately
ignored the emails of Makgatho for reasons only known
to himself.
5.8
The applicant, on the balance of probabilities, deliberately ignored
responding to the emails of Makgatho and this boils down
to failure
to obey a reasonable instruction. This on its own goes to the core of
the relationship between himself and his Manager
and has rendered the
continued relationship intolerable.” (Emphasis added.)
[10]
The statement that the laptop was ‘fixed’ is not
supported by the record in this matter. The company’s IT
infrastructure manager, Vally, testified that a recordal that a
problem had been fixed could mean of two things:
“
its
either completed as in the issue has been fixed and the (inaudible)
has been closed or after numerous attempts to contact the
user and
because we have certain service level agreements starting to the
system, we cannot keep calls (inaudible) indefinitely.
So if we made
a reasonable attempt to contact the user and there is no contact made
eventually the call would be closed.”
[11]
Vally further testified that he had not checked with his staff member
Riaan Botha if the problem logged by applicant had been
resolved. He
also testified that the company did not have the capability to track
when mail was opened and when it was read. He
was asked to consider
the records during cross-examination and he testified as follows:
“
Riaan,
you can see he logged the update at the, at 4:50, called user, ring,
no answer, he tried again contacting him on the 10
th
,
called user, ring, no answer. Call ring, no answer again on the 11
th
,
and that’s when he took action (inaudible) close the call, made
reasonable attempt to contact the user and called user on
cell and
phone line, no answer, the call goes straight to voicemail, the
number (inaudible) call to be closed. So no physical action
was taken
to rectify the issue (inaudible).”
[12]
Vally proceeded to confirm that no action was taken to fix the
laptop. In my view, the Commissioner made a material error in
surmising that that the computer was fixed. She also failed to give
weight to the following evidence elicited from Makgatho during
cross-examination:
“
MS
KGADI MAKGATO: Normally when, when, normally when I send the e-mails
to them when Mzukusi phoned me telling me that Denayo phoned
him,
when they get the emails they will phone each other and communicate
about the e-mails that was sent to them and then one of
them will
respond.
APPLICANT
REPRESENTATIVE: So on the 12
th
, the applicant found uh had
found out that there’s emails where you want certain
information. He then picks up the phone
and says listen I believe
there’s emails, I’ve got computer problems. He, he told
you that at least, we agree on that
part.
MS
KGADI MAKATO: Yes, he said he has computer problems.
APPLICANT
REPRESENTATIVE: Okay, and what else did you discuss with him then in
the conversation, in that conversation after he told
you he has
computer problems?
MS
KGADI MAKGATO: I said to him okay it’s fine.”
[13]
Makgatho also conceded that she did not know if his problem with his
laptop had been fixed but only that the call to the help
desk was
closed.
[14]
On Friday 14 December 2012, two days after Makgatho told the
applicant that “
it was okay
” regarding his
computer problems, the applicant received his notice of suspension
and notice of the charges against him.
[15]
This Court must consider whether the award should be set aside, given
the stringent tests for review under the LRA. The oft
quoted dictum
in
Herholdt v Nedbank Ltd
(
COSATU as Amicus Curiae)
[1]
is apposite:
“
[25]
In summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to
amount to a
gross irregularity as contemplated by s 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 are
only of any consequence if their
effect is to render the outcome
unreasonable.”
[16]
The company was at pains to show that the applicant did receive at
least some emails during the period and sent one on 7 December
2012
to Ribisi, copied to Makgatho. However, this is consistent with
applicant’s testimony that that he was receiving some
emails
and not others. The Commissioner’s finding was premised on her
notion that his laptop problem was fixed. This was
not born out by
the company’s own evidence at arbitration. In my view the
effect of this factual error, and the Commissioner’s
consequential finding that the applicant deliberately ignored the
emails from his manager, render the outcome of the award
unreasonable.
[17]
In the premises, the award stands to be reviewed and set aside. The
record before me is extensive and I see no reason to remit
the
dispute for re-hearing.
Order
[19]
In all the circumstances, and taking into account
the applicant seeks the primary remedy of reinstatement, I make the
following
order:
1. The Award under GAJB 5282-13 is
reviewed and set aside and substituted as follows:
“
1.1.
The dismissal of Mzukisi Mbawula was substantively unfair;
1.2
Pick ‘n Pay Retailers (Pty) Ltd is ordered to retrospectively
reinstate Mzukisi Mbawula into his position as of the date
of his
dismissal.”
3. The third respondent is to pay the
costs of this application.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Adv. P. Somi
Instructed
by: Du Randt Du Toit Pelsner Attorneys
For
the First Respondent: R.M Carr of Bowman Gilffillan Inc.
[1]
2013 (6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA); (2013) 34 ILJ 2795
(SCA).