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[2017] ZALCJHB 284
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Cashbuild Thohoyandou v Mannde NO and Others (JR967/14) [2017] ZALCJHB 284 (8 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR967/14
In
the matter between:
CASHBUILD
THOHOYANDOU
Applicant
and
CHRISTOPHER
MANNDE
N.O.
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
Second
Respondent
DOUGLAS
MANAKA
Third
Respondent
Heard:
19 May 2016
Delivered:
8 August 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
This
is an opposed application in terms of which the applicant seeks an
order reviewing and setting aside the arbitration award
dated 23
April 2014, issued by the first respondent (the Commissioner) under
case number LP7255-13.
[2]
In
the award, the Commissioner found that the dismissal of the third
respondent (Manaka), was substantively unfair, and had awarded
him
retrospective reinstatement. Manaka’s answering affidavit to
the review application was filed out of time and he seeks
condonation
in that regard. The applicant opposed the application for
condonation.
Condonation:
[3]
The
principles surrounding applications for condonations are trite. They
involve a consideration of a variety of factors including
the degree
of the delay, the explanation for the delay, the applicant’s
prospects of success in respect of the main case,
and any prejudice
to the parties. These factors are interrelated
albeit
a
lengthy delay without a reasonable explanation might dispense with
the other factors, whilst greater prospects of success might
compensate for a substantive delay. In the end however,
considerations of the interests of justice will determine whether
condonation
ought to be granted or not
[1]
.
[4]
The
answering affidavit to the review application is about six months
late as Manaka alleged that he received the notice in terms
of Rule
7A (8)
[2]
of the Rules of this
Court in December 2014. He had only filed his answer on 19 May 2015.
Manaka attributed the delay to the fact
that after his dismissal, he
had moved to Brakpan from Thohoyandou. It was only when he went back
to Thohoyandou to visit his relatives
in December 2014 that he had
received some of his mail and a copy of the review application.
[5]
Manaka
had confirmed having received the Rule 7A (8) notice in December 2014
but contended that he did not understand what it meant
as he was a
layperson. He had also received ‘an electronic mail’ and
‘sms’ message from the applicant’s
attorneys of
record to come to court on 12 December 2014. It was only thereafter
that he had made copies of the application from
the Court’s
file and then approached Legal Aid South Africa for assistance.
[6]
The
essence of Manaka’s application for condonation is that he did
not receive the review application because of moving from
his
original residence after his dismissal. He contended that he would be
severely prejudiced if not allowed to oppose the review
application
as his prospects of success were good in that regard.
[7]
The
applicant opposed the application for condonation on a variety of
grounds including that the review application was sent to
the same
address where the Rule 7A (8) Notice was sent and which Manaka had
received. It was also contended that the answering
affidavit was six
months late and that there was no proper explanation for the delay.
[8]
In
determining whether condonation should be granted, I have considered
that a delay of six months is excessive, and that the explanation
proffered by Manaka in that regard is lacking in particularity. No
specific account is given for the duration of the delay, and
even if
Manaka was not aware of what the documents in his possession meant as
of December 2014, no detailed account is given as
to the reason it
took him a further five months or so to approach Legal Aid South
Africa.
[9]
Ordinarily,
one would take a dim view of Manaka’s application in view of
the shortcomings pointed out. The interests of justice
however
persuade me to adopt a lenient approach towards Manaka’s
application in view of the following considerations;
[10]
It
would be foolhardy for the Court not to acknowledge that employees
upon the loss of their jobs normally move places and change
residence
in search of alternative employment. A second factor is that it
should not be taken for granted that ordinary employees
would
understand the meaning of Court documents even if they had received
them without the benefit of legal assistance. Manaka
had contended
that he was a lay person who did not understand what the documents he
had received meant, and I have no reason to
doubt that contention.
[11]
It
would further be iniquitous to deny Manaka an opportunity to defend
the review application in the light of his favourable arbitration
award which the applicant seeks to set aside. Furthermore, even if
there is prejudice to the applicant in the light of the delay,
such
prejudice cannot by all accounts be said to outweigh that to be
suffered by Manaka if condonation was to be refused. In the
circumstances, it is my view that the late filing of the answering
affidavit ought to be condoned.
Background to the
dispute:
[12]
Manaka
was employed as a Sales Assistant with effect from February 2009. He
was dismissed from the applicant’s employ on 3
October 2013
because of alleged misconduct related to;
“
Gross
Insubordination alternatively Gross Insolence
in
that on the 12 September 2013 you failed to carry out an instruction
from a Manager, you treated him with disrespect and directly
challenged his authority in the presence of other staff members
.”
[3]
[13]
The
circumstances which led to the charge were that Manaka was instructed
by a manager to retrieve and remove cans of paint that
were
‘de-ranged’ and to place them on the shelves. This was
stock of paint that was meant to be removed from the shelves
as the
applicant would not be selling it any longer, or that would be sold
at lower prices. The instruction was given as part of
a larger
re-arrangement of stock in the store.
[14]
It
is alleged that Manaka repeatedly refused to comply with the
instruction. There was a difference in versions between the parties
about the incident, with the applicant’s case being that Manaka
was not busy with anything at the time that the instruction
was
issued. Manaka in turn contended that he was busy moving door frames
when he was given the instruction and that he told the
manager who
had issued the instruction that he would remove the paint off the
shelves at a later stage once he was done with his
other tasks.
[15]
Following
the convening of a disciplinary enquiry, Manaka was dismissed. He
challenged the substantive fairness of his dismissal
at the
Commission for Conciliation Mediation and Arbitration (CCMA), and the
matter came before the Commissioner for determination.
The arbitration
proceedings and the award;
[16]
The
applicant’s evidence was presented by three witnesses and was
summarised by the Commissioner as follows;
Lucas Mashambo
(Mashambo), the line manager had testified that he had received a
memo from the area manager that certain stock (paint)
had to be
removed from the shelves and be placed at the end of the isle for the
purposes of stock-taking. Mashambo had issued the
instruction to
Manaka to do likewise. Manaka had refused to carry out the
instruction despite not doing anything at the time. Mashambo
had then
issued Manaka with a final written warning and had also suspended
him. These disciplinary measures also led to a disciplinary
hearing
being convened.
[17]
Hector
Nkwinika (Nkwinika), of the applicant was informed of the incident
and had reported it to the divisional manager, who had
in turn
advised him that Manaka was to be suspended. Nkwinika had also
testified that Manaka did not have a ‘good attitude’
at
work and he had issued him with a written warning for gross insolence
on 14 August 2013. Before that warning expired, he was
issued with
another one for insolence according to Nkwinika. Lucas Nemadzivhana
had also confirmed that indeed Manaka was in the
past issued with a
written warning for gross insolence.
[18]
Manaka’s
case was to confirm that he was indeed issued with an instruction to
re-arrange stock. At the time that he received
the instruction, he
was busy with other tasks (packing door frames), and had informed his
manager that he would attend to the paints
once he was done with his
other tasks. He had denied that the instruction was issued three
times as alleged, and that the only
time that Mashambo came back to
him after he had issued the instruction was when he issued him with a
final written warning whilst
he was still busy with his other tasks,
and when he again came to him at a later stage with a letter of
suspension. His other contention
was that he was punished twice for
the same offence.
[19]
In
the award, the Commissioner found that the applicant in this case had
failed to prove the full charge against Manaka, and that
the latter
had been punished twice for the same incident. The Commissioner
concluded that the dismissal of Manaka was unfair on
the following
grounds;
a)
The
charge levelled against Manaka was exaggerated in that there was no
evidence led by Mashambo that he was disrespected or that
Manaka had
refused to obey the instruction in the presence of other staff
members;
b)
It
was not in dispute that the instruction was issued, and further that
it was not carried out;
c)
Manaka
was punished twice and the applicant had not submitted evidence to
justify doing so;
d)
The
only aspect of the misconduct proven was regarding a refusal to obey
an instruction, and a dismissal in that regard was however
unwarranted and unfair;
Grounds for review:
[20]
The
Applicant sets out its grounds for review in its founding affidavit
but elected not to file a supplementary affidavit. The grounds
of
review are essentially that:
i.
The
decision was one that a reasonable decision maker could not reach in
the light of the evidence before him;
ii.
The
finding by the Commissioner that the applicant did not prove that the
incident occurred in the presence of other employees was
unreasonable
and irregular as the evidence was not challenged;
iii.
The
Commissioner failed to elaborate as to why he found the dismissal to
be unfair in circumstances where he accepted Manaka had
committed the
offence;
iv.
The
Commissioner’s finding in respect of double jeopardy
constitutes a gross irregularity, as the evidence in that regard
did
not support a finding that Manaka was issued with a written final
warning for a refusal to adhere to the instruction and thereafter
subjected to a disciplinary hearing for the same offence;
v.
The
relief of reinstatement, in the face of previous warnings, was
grossly irregular and unreasonable.
[21]
Manaka
opposed the application and reiterated his stance that the applicant
failed to make out a case for review. He contended that
the applicant
was not entitled to the relief it seeks, as the award was one that a
reasonable decision maker could have come to
based on the evidence
led at arbitration. It was submitted on his behalf that the
Commissioner had correctly found that an instruction
was issued and
not complied with due to a reasonable explanation. In this regard, it
was contended that Mashambo had conceded that
Manaka told him when
the instruction was issued that he was busy with other tasks, but
that Mashambo had at a later stage changed
his evidence.
[22]
Further
submissions made on behalf of Manaka were that the Commissioner’s
findings in regard to double jeopardy could not
be faulted in the
light of the evidence given and the fact that the applicant could not
explain or justify its actions in that
regard. To this end, it was
submitted that once the final written warning was issued, which
warning the applicant had sought to
conceal by not presenting
evidence in that regard or even making a discovery of a copy of that
warning, there was no justification
for the applicant to convene a
disciplinary hearing in regard to the same charge.
Evaluation:
[23]
The
test that this Court applies in determining whether the arbitrator's
decision is reviewable is that as enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
.
The
question to be posed and answered is ‘whether the conclusion
reached by the arbitrator was so unreasonable that no other
arbitrator could have come to the same conclusion.’ The
arbitrator's decision must therefore fall within a range of decisions
that a reasonable decision maker could make.
[24]
In
a further explication of the review test, the Supreme Court of Appeal
in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae
[5]
,
held that:
‘
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 enquiry 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.’
[25]
Central
to this application in view of the Commissioner’s findings that
indeed Manaka had refused to obey an instruction is
whether a further
finding regarding double jeopardy and the appropriateness of the
sanction of dismissal was one that a reasonable
decision maker could
have made in the light of the material that was before him.
[26]
In
accordance with the provisions of section 188 (2)
[6]
of the Labour Relations Act
[7]
,
any person considering whether or not the reason for
dismissal
is a fair reason or whether or not the
dismissal
was effected in accordance with a fair procedure must take into
account any relevant
code
of good practice
issued in terms of
this
Act.
The
reason that led to Manaka’s dismissal was that on 12 September
2013, he had failed to carry out an instruction from his
line
manager, treated him with disrespect and directly challenged his
authority in the presence of other staff members.
[27]
The
Commissioner had however found no basis for a conclusion that Manaka
was disrespectful towards or had directly challenged the
authority of
his manager. The applicant takes issue with this conclusion, and
contended that Manaka did not dispute the version
that he had refused
to follow the instruction in front of other employees.
[28]
The
record of proceedings is of bad quality as verified by the
transcribers. Be that as it may, on the evidence of Mashambo
[8]
,
I accept that indeed the latter had testified that on the second time
he approached Manaka with the instruction, he had called
Nemadzivhana
as a witness, and had issued the instruction, and that Manaka had
refused to obey the instruction. This evidence does
not appear to
have been challenged by Manaka, and to this end, I accept that the
Commissioner’s conclusions in this regard
are not supported by
the evidence presented.
[29]
Central
to the applicant’s arguments was that the Commissioner
committed a reviewable irregularity more specifically in regards
to
whether Manaka was subjected to double jeopardy. In this regard, the
argument was that the Commissioner had misunderstood the
evidence of
Nkwinika as to whether a final written warning for the same incident
was issued or not. In this regard, it was contended
that it was
Nkwinika who had issued Manaka with a final written warning
[9]
on 13 August 2013 for gross insolence. This had been followed by a
further verbal warning issued to Manaka on 14 August 2013 for
a
similar offence, and that there was nothing to support the conclusion
that Manaka was issued with a further final written warning
at the
same time that he was issued with a letter of suspension on 12
September 2013.
[30]
As
to whether Manaka was issued with a final written warning for the
misconduct which he was subsequently dismissed for can be gleaned
from record (flawed as it is), and the cross-examination of Mashamba
by Manaka (with the intervention by the Commissioner) which
went as
follows
[10]
;
Applicant
(Manaka): So what is the reason for final written warning
Siza
(Mashamba): Can I respond
Commissioner:
Ja
Siza:
Uhm the one was for, obviously they were all part of a misconduct
that has been brought against you and uh obviously the there
were
witnesses to the case, who would be the crush of the matter, uhm I
think we were talking about over a hundred thousand rand
if I am not
mistaken so we (inaudible) that if the cost the company over a
hundred thousand rand and (inaudible) could affect your
salary
Commissioner:
But the reason for the warning uh that is what
Siza:
(Inaudible)
Commissioner:
Okay so it was not refusal to take an instruction
Siza:
Actually it was it was a refusal to take an instruction to
(inaudible)
Commissioner:
Come again
Siza:
It was
Commissioner:
It was refusal?
Siza:
To take instruction
Commissioner:
To take instruction
Siza:
Which led to the
Commissioner:
The instruction that he refused is that the instruction, I mean is
that an instruction to, to off load the paint
Siza:
He was requested to pack of from the
Commissioner:
Oh but the final written warning was linked to the paint issue
Siza:
Yes correct
Commissioner:
Okay
[31]
In
line with the above exchanges, the applicant still contended that it
was objectively determinable that Mashambo was trying to
explain that
the reason for suspending Manaka and the final written warning was
for similar misconduct, but that Mashambo was not
informing the
Commissioner that the final written warning was issued to Manaka and
that he was thereafter disciplined for the same
misconduct.
[32]
My
reading and understanding of the exchanges above, coupled with the
direct evidence of Manaka and his cross-examination clearly
indicates
that at some point after the instruction was issued, he was
subsequently issued with a final written warning, which copy
no one
appears to have kept, and he was thereafter issued with a letter of
suspension. Manaka’s version in that regard had
been
consistent, and he had maintained that those were the three instances
when Mashamba came to him. Mashamba’s evidence
on the other
hand vacillated between conceding that indeed Manaka was issued with
a final written warning for a refusal to obey
an instruction in
respect of the paints, and a denial that this was the case.
[33]
Further
clarity on the issue can be gleaned from the minutes of the internal
disciplinary hearing, which forms part of the record.
It is accepted
that arbitration proceedings before the CCMA are
de
novo
.
This however does not imply that the testimony led at internal
disciplinary proceedings should be ignored.
[34]
The
chairperson of the disciplinary enquiry had recorded in the summary
of the evidence that the complainant (presumably, Mashamba,
had
‘
received
authorisation to issue a written warning for the incidence but stated
that the Accused took it from the Complainant and
crumpled it
up..
[11]
”
Makana’s cross-examination in the arbitration proceedings
did not at all indicate that his version that he was issued
with a
final written warning and was thereafter suspended was challenged. In
the circumstances, even if what was recorded by the
chairperson of
the internal enquiry as illustrated above was not placed before the
Commissioner, on the evidence of Mashamba as
gleaned from the record,
it cannot be said that the Commissioner misunderstood the evidence in
regards to the final written warning
or some form of warning in
respect of the events of 12 September 2013, and accordingly, his
conclusions that Manaka was indeed
subjected to double jeopardy
cannot be faulted.
[35]
It
is accepted that in determining whether an employer is precluded from
convening a second disciplinary enquiry in respect of the
same form
of misconduct, a further consideration is whether it would be fair to
do so, or whether it would be unfair to compel
an employer to retain
an employee in whom it had justifiably lost all confidence
[12]
.
In this case, I am further prepared to accept that prior to the
incident on 12 September 2013, Manaka had already been issued
with a
final written warning valid for six months on 13 August 2013 for
gross insolence, which warning was still valid at the time
of the
latest refusal to obey an instruction. Manaka had also been issued
with a verbal warning on 14 August 2013 valid for three
months for
insubordination. The arguments advanced on behalf of Manaka in this
regard were that there is a difference between insubordination
and
insolence, and it could therefore not be concluded that Manaka had a
final written warning for the same offence of gross insubordination.
It was however correctly pointed out on behalf of the applicant that
it is a fundamental principle of our law that Courts should
have
regard to the substance of a dispute and not its form, and further
that the content of the final written warning issued on
13 August
2013 and the charge that led to the dismissal related to a refusal to
adhere to an instruction by Manaka. Even so, it
is however trite that
acts of insolence and insubordination do not automatically justify
dismissal unless they are serious and
wilful
[13]
[36]
It
has already been established that the Commissioner’s
conclusions in regards to whether Manaka had refused to obey
instructions
in the presence of another employer is not supported by
the evidence before him. Nowhere in his award did the Commissioner
deal
with the issue of the effect of the previous warnings issued to
Manaka in regard to what amounts to essentially a refusal to obey
instructions, whether framed as insubordination or insolence. These
factors in my view, and moreso in the light of a finding in
regard to
double jeopardy were material in determining the appropriateness of a
sanction of dismissal. The Commissioner by failing
to make a finding
in regard to these factors in my view committed a reviewable
irregularity, and thus arrived at an overall decision
which a
reasonable decision maker could not have arrived at.
[37]
The
applicant had sought that the award be reviewed, set aside and be
substituted with an order that Manaka’s dismissal was
substantively fair. In the alternative, the applicant sought an order
that the matter be remitted back to the CCMA for a proper
determination before another Commissioner. I am not in agreement with
the approach that the award should be substituted with a
finding that
Manaka’s dismissal was substantively fair for a variety of
reasons including that pertaining to my findings
in regards to the
issue of double jeopardy. Ordinarily, and more specifically in the
light of the protracted nature of this dispute,
the court would
readily substitute the findings of the Commissioner as it is
empowered to do so. I am however disinclined to do
so in the light of
the poor quality and nature of the record of proceedings, and I am
thus not satisfied that the Court has all
the available material
before it to make any such substitution.
[38]
I
have further had regard to the requirements of law and fairness and
hold the view that a cost order is not warranted in this matter.
Order:
[39]
Accordingly,
the following order is made;
1.
The
late filing of Third Respondent’s answering affidavit to the
review application is condoned.
2.
The
arbitration award issued by the First Respondent under case number
LP7255-13 dated 23 October 2015 is reviewed and set aside.
3.
The
dispute between the Third Respondent and the Applicant is remitted
back to the Second Respondent for a determination
de
novo
before a Commissioner other than the First Respondent.
4.
There
is no order as to costs
__________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Mr A Posthuma of Snyman Attorneys
On
behalf of the Respondent: Ms N Maharaj of N Maharaj Attorney
[1]
See
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
(A) at 532B-E; Brummer v
Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839
F
[2]
Rule 7A Reviews
(1)
A
party desiring to review a decision or proceedings of a body or
person performing a reviewable function justiciable by the court
must deliver a notice of motion to the person or body and to all
other affected parties.
…
(8)
The applicant must within 10
days after the registrar has made the record available either-
(a)
by delivery of a notice
and accompanying affidavit, amend, add to or vary the terms of the
notice of motion and supplement the
supporting affidavit;
or
(b)
deliver a notice
that the applicant stands by its notice of motion.
[3]
Page 3 of the
Arbitration Award
[4]
(2007) 28 ILJ
2405 (CC)
at para 110.
[5]
(2013)
34
ILJ
2795
(SCA)
at
2806
para
25
[6]
Section 188
provides:
Other
unfair dismissals
(1) A dismissal that is not
automatically unfair, is unfair if the employer fails to prove -
(a) that the reason for dismissal is
a fair reason -
(i) related to the employee’s
conduct or capacity; or
(ii) based on the employer‘s
operational requirements; and
(b) that the dismissal was effected
in accordance with a fair procedure.
(2) Any person considering whether or
not the reason for dismissal is a fair reason or whether or not the
dismissal was effected
in accordance with a fair procedure must take
into account any relevant code of good practice issued in terms of
this Act
[7]
Act 66 of 1995
[8]
At page 11 line 10
[9]
Page 62 of the
Record
[10]
Page 13 - 16
[11]
At page 38 of the
Record
[12]
BMW (South
Africa) Pty Ltd v Van der Walt
[2000] 2 BLLR 121
(LAC)
at para 12 and 13
[13]
Palluci Home
Depot (Pty) Ltd v Herchowitz and Others [2015] 36 ILJ 1511 (LAC)
at
para 22