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[2017] ZALCJHB 253
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Utility Administration Services (Pty) Ltd v Van den Heever and Others (JR1498/16) [2017] ZALCJHB 253 (21 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
No: JR 1498/16
In
the matter between:
UTILITY
ADMINISTRATION
SERVICES
Applicant
(PTY)
LTD
And
MICHELLE
VAN DEN
HEEVER
First
Respondent
THE
COMMISSION FOR CONCILIATION MEDIATION
AND
ARBITRATION
Second
Respondent
J
MATHEBULA
N.O.
Third
Respondent
Heard:
17 January 2017
Delivered:
21 June 2017
JUDGMENT
MOLOTSI,
AJ
Introduction
[1]
This matter concerns an application by the applicant to review and
set aside an arbitration award by the third respondent in
his
capacity as an arbitrator of the second respondent, the Commission
for Conciliation Mediation and Arbitration (‘CCMA’).
This
application has been brought in terms of section 145 of the Labour
Relations Act
[1]
. The third
respondent issued an arbitration award on 17 June 2016 ordering the
applicant to pay the first respondent three months
compensation
amounting to R81 000.00.
[2]
The first respondent was employed by the applicant as a utility
manager and her employment commenced on 7 September 2015. She
was
employed on a probationary period of six months and was dismissed on
15 February 2016. She challenged her dismissal and referred
an unfair
dismissal dispute to the CCMA on 9 March 2016. The CCMA set down the
matter for Con/Arb hearing on 6 April 2016. The
applicant objected to
the Con/Arb process taking place on 6 April 2016. Conciliation took
place on 6 April 2016 and the dispute
could not be resolved.
[3]
The first respondent then requested the dispute to be resolved by
means of arbitration. The request for arbitration was filed
with the
CCMA on 7 April 2016. The arbitration hearing took place before the
third respondent on 6 June 2016.
The
relevant background
[4]
The nature of the applicant’s business is to distribute utility
bills for their clients. The clients will then deliver
the utility
bills to their tenants. The business is operating on meeting client’s
deadlines and targets and for all in turns
and purposes a pressured
work environment. The utility bills had to be delivered to the
clients of the applicant within a specific
period.
[5]
The first respondent, as a manager, was responsible for managing
staff and staff output. The first respondent working hours
were from
08h00 to 16h30 Monday to Friday. It appears that in the beginning the
first respondent worked long hours until the early
hours of the
morning and was rewarded with a merit performance bonus in December
2015.
[6]
The applicant had two meetings with the first respondent to discuss
her performance. The meetings took place on 9 and 15 February
2016
respectively. The minutes of the meeting were submitted during the
arbitration hearing. The applicant was not happy with the
first
respondent’s performance as she was failing to meet the
targets. The first respondent blamed the new system which had
teething problems as a reason why she could not meet the targets.
[7]
During the arbitration hearing the applicant contended that the
meetings were aimed at assisting the first respondent with her
performance. The first respondent on the other hand contended that
she was not offered any assistance, training and that all her
suggestions to improve the operations were turned downed by the
applicant. It was after the meeting of the 15 February 2016 when
the
applicant decided to immediately dismiss the first respondent. The
reasons for the first respondent’s dismissal are indicated
in
the dismissal letter as follows:
“
Notice during
probationary period
We herewith give formal
notice of termination of your probation contract. Your last working
day will be today 15 February 2016.
The reason for termination is the
unsuccessful completion of your probationary period.
Issues raised during
formal discussions held with HR, see minutes attached; constitutes
your wilful and deliberate behaviour is
inconsistent with the
continuation of your contract of employment. Your actions constitute
serious misconduct warranting summary
dismissal.
You will be paid any
accrued entitlements and outstanding remuneration up to and including
the date of this letter including 1 weeks
’notice pay.
It is always regrettable
to have to end employment, but it is felt that this would be in the
best interest of both yourself and
the Company.”
The
test for review
[8]
The review test is now settled law. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd & Others
[2]
Navsa AJ held that the standard as contemplated by section 33 of the
Constitution
[3]
are in essence
to be blended into the review in Section145(2) of the LRA. A
reviewing Court must decide if the decision of
the Commissioner is a
reasonable decision. In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[4]
the Court held that
:
“
The Constitutional
Court has decided in Sidumo that the grounds of review set out in s
145 are suffused by reasonableness because
a CCMA arbitration award,
as an administrative action, is required by the Constitution to be
lawful, reasonable and procedurally
fair. The court further held that
such an award must be reasonable and if it is not reasonable, it can
be reviewed and set aside.”
[9]
In
Herholdt
v Nedbank Ltd and Another
[5]
held that:
“
In summary the
position regarding the review of CCMA award is this: A review of CCMA
award is permissible if defect in the proceedings
fall 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 the particular
facts, are not in and of themselves
sufficient for an award to be set aside, but are only of consequence
if their effect is to
render the outcome unreasonable.
[10]
Another important judgement settling the test for review is
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[6]
the court held that:
“
Sidumo does not
postulate a test that requires a simple evaluation of the evidence
presented to the arbitrator and based on that
evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator…In other words, in a case
such as the present,
where gross irregularity in the proceedings is alleged, the enquiry
is not confined to whether the arbitrator
misconceived the nature of
the proceedings, but extends to whether the result was unreasonable,
or put another way, whether the
decision that the arbitrator arrived
at is one that falls in a band of decisions a reasonable decision
maker could come to on the
available materials.”
[11]
In
Police
and Prisons Civil Rights Union obo Sandile lunga Biyela and the
Safety and Security Sectoral Bargaining Council, Ledwaba,
South
African Police Service
[7]
the court held that:
“
Accordingly, the
reasonableness consideration envisages a determination, based on all
the evidence and issues before the arbitrator,
as to whether the
outcome the arbitrator arrived at can nonetheless be sustained as a
reasonable outcome, even if it may be for
different reasons or on
different grounds. This necessitates a consideration by the review
court of the entire record of the proceedings
before the arbitrator,
with the view to establish whether this material can, or cannot,
sustain the outcome arrived by the arbitrator.
In the end, it would
only be if the outcome arrived at by the arbitrator cannot be
sustained on any grounds, based on that material,
and the
irregularity, failure or error concerned is the only basis to sustain
the outcome the arbitrator arrived at, that the review
application
would succeed.
[12]
In Anglo Platinum (Pty) Ltd ( Bafokeng Rasemone Mine) v De Beer and
Others
[8]
the Court held that:
“
the reviewing
court must consider the totality of evidence with a view to
determining whether the result is capable of justification.
Unless
the evidence viewed as a whole causes the result to be unreasonable,
errors of fact and the like are of no consequence and
do not serve as
a basis for a review.”
Grounds
of review
[
13]
The applicant’s case for review as foreshadowed in the founding
affidavit is based on three grounds:
13.1. The first ground
relates to the third respondent finding that no procedure was
followed in effecting the termination of the
first respondent. The
applicant contends in the founding affidavit that the meetings of the
9 and 15 February 2016 respectively
served the purpose of conveying
to the first respondent the concerns of the applicant and further
solicited the representations
of the first respondent. The applicant
concludes this ground of review by stating that the third respondent
failure to consider
the substance or at all, the nature, purpose and
substance of the meeting of 15 February 2016 and consequently whether
or not the
process followed by the applicant constituted an extension
of the opportunity to make representations as envisaged by the Code
of Good Practice. The applicant believed that the third respondent’s
arbitration award is reviewable on the basis that the
third
respondent committed a material error of fact and/or law.
13.2 The second ground of
review is that the third respondent failed to deal with the
substantial merits of the dispute in compliance
with the imperatives
set out in section 138(1) of the LRA. This related to the third
respondent conclusion that the first respondent
was dismissed for
multiple reasons. In respect of performance as a reason for
dismissal, the third respondent failed to deal with
any of the
reasons pertaining to such performance, in particular to those
relating to the first respondent’s conduct of leaving
the
workplace earlier than her subordinates who had to complete the
scheduled tasks. The third respondent failed to attach any
significance to the first respondent’s acknowledgement that the
essential relationship had broken down.
The applicant elaborates
this ground of review by stating that where the first respondent’s
performance constitutes at least
part or one of the reasons of the
reasons for termination of employment, the applicant was entitled to
terminate for reasons which
would ordinarily be less compelling. Put
differently, it is the very purpose of a probationary period to
determine suitability
of the employee employment. The first
respondent had expressed no inclination to pursue continued
employment with the Applicant
and expressed the intent to leave at
the end of the current month (February 2016). There was a mutual
acceptance that the employment
relationship could not continue.
13.3 The third ground for
review is that the award of compensation of three months was
substantially unreasonable.
Evaluation
[14]
The applicant’s first ground relates to the finding of the
third respondent that the applicant failed to follow any procedure.
As stated above the review Court must consider the whole material
before the arbitrator to come to the conclusion whether the decision
of the arbitrator is one which a reasonable decision maker could
make. The first respondent’s dismissal letter indeed reveals
a
number of reasons for the dismissal. The letter of dismissal reveals
that the first respondent was dismissed for unsuccessful
completion
of the probation period. The other reason is about the conduct of the
first respondent which constituted serious misconduct.
The first
respondent’s dismissal was therefore related to her probation
and acts of misconduct.
[15]
The first respondent probation was for a period of six months. At the
time of dismissal the first respondent had not completed
her
probation period. Item 8 of schedule 8 of the Code of Good Practice
(‘the Code’) deals with probation. Item 8 (e)
– (h)
provides that:
“
(e) During the
probation period, the employee’s performance should be
assessed. An employer should give an employee reasonable
evaluation,
instruction, training, guidance or counselling in order to allow the
employee to render a satisfactory service.
(f) If the employer
determines that the employee’s performance is below standard,
the employer should advise the employee
of any aspects in which the
employer considers the employee to be failing to meet the required
standard. If the employer believes
that the employee is incompetent,
the employer should advise the employee of the respects in which the
employee is not competent
(h) An employer may only
decide to dismiss an employee or extend the probation period after
the employer has invited the employee
to make representations and has
considered any representations made.
[16]
The applicant contends that the meetings of 9 and 15 February 2016
constituted representations on the part of the first respondent.
I
cannot agree with this submission. On a proper analysis of the
meetings of 9 February and 15 February 2016 respectively, the
purpose
of the meetings was to ascertain why the first respondent was not
meeting the targets. The first respondent responded by
indicating
that the system is a problem. The meeting of the 9
February
2016 also dealt with the fact that the first respondent left at 16h30
on the 8 February 2016 whereas her subordinates were
left behind to
do her work. Both meetings dealt with the fact that the applicant is
allowing its employees to work until the early
hours of the morning
which was something that the first respondent objected too. The
meeting of 15 February 2016 further dealt
with the fact that the
first respondent was allegedly negatively influencing staff and
talking badly about the applicant to its
client.
[17]
These meetings did not deal at all with representations. The meaning
of representations as per item 8(h) of schedule 8 the
Code, means
that before a decision to dismiss the employee is taken, the employer
must hear the employee’s side of the story.
The employer must
ask the employee why shouldn’t the employee be dismissed or why
should the probation be extended. This
is in compliance with the
audi
alteram partem
rule. The evidence before the third respondent
shows that the first respondent was not asked to make representations
why she must
not be dismissed. The fact that the first respondent
indicated that she was going to leave at the end of the month, did
not absolved
the applicant from complying with the Audi principles.
The first respondent was not given a reasonable time to meet her
targets.
From the 9 – 15 February 2016 is a short period of
time to determine if the first respondent’s performance had
improved.
There was no further assessment of the applicant’s
performance from 9 - 15 February 2016. It appears that the applicant
was
only concerned about the first respondent’s conduct in
negatively influencing the staff. There was accordingly no valid
reason
to dismiss the first respondent.
[18]
The fact that the applicant considered the first respondent’s
conduct as a serious misconduct warranted the applicant
to consider
putting the allegations against the first respondent and for the
first respondent to have opportunity to respond to
such allegations.
Item 4 of schedule 8 of the Code is relevant. This was not done by
the applicant. There was never any attempt
by the applicant to comply
with item 4 of schedule 8 of the Code. The record of the arbitration
proceedings show that the HR manager
of the applicant, Ms Bekker,
considered the conduct of the applicant as misconduct. Ms Bekker
considered the applicant’s
failure to meet targets as
negligence. A disciplinary enquiry was necessary. The Applicant
cannot dismiss the first respondent
based on misconduct without
following any procedures. The first ground of review must therefore
fail.
[19]
The second ground of review must also fail. There is no basis to come
to the conclusion that the third respondent failed to
deal with
substantial merits of the dispute. The third respondent dealt with
the issues before him. He compared the evidence of
both parties and
accepted the version of the first respondent. The third respondent is
obliged to deal with substantive merits
of the dispute with less
legal formalities. The third respondent considered the evidence and
arrived at a reasonable conclusion.
The third respondent considered
item 8 of schedule 8. Although the third respondent did not refer to
the meetings of 9 and 15 February
2016, it cannot be said failure to
refer to the meetings meant that the third respondent did not apply
his mind to the facts or
misconstrued the nature of the enquiry.
[20]
The third ground of review must also fail. Looking at the manner of
the dismissal of the first respondent in that the first
respondent
was dismissed without compliance with the
audi
principle, that
there was no compelling reason to end the first respondent’s
probation in that the applicant did not comply
with item 8 (e) of
schedule 8. Therefore compensation of three months’ salary was
reasonable.
Conclusion
[
21]
Based on the above reasons, the third respondent award is not
reviewable. Given the totality of evidence before the third
respondent,
the third respondent arrived at a reasonable decision.
The award is within the bands of reasonableness.
[22]
The application was not opposed. The issue of costs does not arise.
Order
In
the premises, I make the following order:
1. The application for
review is dismissed.
2. There is no order as
to costs.
_____________________
H Molotsi
Acting Judge of the
Labour Court
Appearances:
For
the Applicant: RJ Maddern of Wright Rose Innes.
For
the Respondent:
Self
[1]
Act 66 of 1995 as amended
[2]
2007 12 BLLR 1097 (CC)
[3]
Constitution of the Republic of South Africa,1996
[4]
2008 29 ILJ 964 (LAC) at para 96
[5]
2013 11 BLLR 1074
(SCA)
[6]
[2007] ZALC 66
;
2014 1 BLLR 20
( LAC)
[7]
Case No JR 2560/14 at para 29 Labour Court Judgement
[8]
2015 36 ILJ 1453 (LAC) at para 12