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[2017] ZALCJHB 366
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Netshisaulu v Commission for Conciliation, Mediation and Arbitration and Others (JR929/15) [2017] ZALCJHB 366 (28 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
/ not reportable
Case
no: JR929/15
In
the matter between:
AZWINDINI
DOLLY NETSHISAULU
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND ARBITRATION
First Respondent
MOHALE CALVIN LEBEA
N.O.
Second Respondent
ESKOM
HOLDINGS SOC LIMITED
Third Respondent
Heard:
23 August 2017
Delivered:
28 September 2017
Summary:
Review
of arbitration award – commissioner misconstruing misconduct as
gross negligence and upholding sanction of dismissal
when employee
guilty of ordinary negligence – award reviewed and set aside
and substituted with an order that dismissal unfair
and employee
reinstated on a written warning
JUDGMENT
MYBURGH,
AJ
Introduction
[1]
The
applicant employee seeks to set aside on review the commissioner’s
award in which he found her dismissal by Eskom for
misconduct to be
substantively fair. The review application is opposed by Eskom.
[2]
The review
involves a three-pronged attack on the award: firstly, that the
commissioner’s decision to disallow the applicant
legal
representation was allegedly reviewable in that he failed to properly
apply the relevant test; secondly, that the commissioner
was
allegedly disqualified from arbitrating the matter because he had
conciliated a related dismissal dispute involving Mr Masokwameng;
and
thirdly, that the sanction of dismissal imposed by the commissioner
was allegedly unreasonable.
Overview of the facts
[3]
The
applicant was employed by Eskom as an HR officer in its Limpopo
operating unit, and reported to Ms Motimele, the HR manager.
The
applicant commenced employment with Eskom in 2010, and had a clean
disciplinary record.
[4]
Eskom’s
Limpopo operating unit is split into five zones, one of which is the
Thohoyandou zone. That zone is split into two
sectors – the
Thohoyandou sector and the Louis Trichardt / Musina sector. At all
material times, it appears that the applicant
was in the process of
transitioning from the Thohoyandou sector (where she had originally
been appointed) to the Louis Trichardt
/ Musina sector, with her
replacement in the Thohoyandou sector being Mr Masokwameng. Although
he had worked for Eskom for some
three years as a trainee, Mr
Masokwameng appears to have taken up the position of HR officer
towards the end of June 2014, and
was being informally mentored by
the applicant. As at 1 July 2014 (see below), he had apparently only
been in the position of HR
officer for four days.
[5]
On 1 July
2014 at 09:58, Ms Motimele sent an email to her team of HR officers
(including the applicant and Mr Masokwameng) dealing
with the
appointment / recruitment of learners who had completed their
learnerships. A spreadsheet was attached to the email reflecting,
inter
alia
,
the names of the learners who were to be recruited. Given its
importance, the full text of the email warrants quotation:
“
Good morning team
See the attached doc for your urgent
action.
The following needs to be adhered to:
We are in the process of negotiating
for the appointment of these learners, however we are urgently
requested to start with the
process of recruitment, in case approval
is given, we appoint with effect from the 1
st
of July
2014.
The following needs to take place with
effect from today:
Start the recruitment process for them
in your respective areas (medicals, GA2, assessment, whatever process
that goes with their
appointment).
Please give this priority, as July
payroll is closing on the 10/11, and these process [sic] should be
completed by July payroll
closure.
Treat this as private and
confidential. No information to be shared with anyone outside you.
Feel free to ask for clarity in case
you do not understand the instruction.”
[6]
In terms of
the attached spreadsheet, 18 learners were to be recruited, four of
whom fell within the Thohoyandou zone – two
each in the
Thohoyandou and Louis Trichardt / Musina sectors.
[7]
At the time
of receiving this email on 1 July 2014, the applicant was together
with Mr Masokwameng in the Thohoyandou office. Upon
reading the
email, the applicant formed the view that there was no attachment to
it, and confirmed with Mr Masokwameng that he
had also not seen the
attachment. The applicant was fortified in her view by the fact that
she came across an email from Seun Hlabane,
an HR officer who was
also a recipient of Ms Motimele’s email, to Ms Motimele
advising her that there was no attachment.
(Mr Hlabane apparently
later discovered the attachment with the assistance of his
colleagues.) The applicant then twice made an
attempt to contact Ms
Motimele telephonically, but was unsuccessful.
[1]
She also appears to have formed the view that there was no point in
sending Ms Motimele a follow up email, because Mr Hlabane had
already
done so, and had not received a response.
[8]
It was in
these circumstances – and particularly in the light of the fact
that the recruitment process had to be undertaken
urgently –
that the applicant sent an email to the training department at 12:43,
requesting to be provided with details of
the learners who had
qualified. The training department sent a response at 13:05, attached
to which was a spreadsheet reflecting
the names of ten qualified
learners in the Thohoyandou zone. But unbeknown to the applicant (and
Mr Masokwameng), there were only
four names on Ms Motimele’s
spreadsheet (which were amongst the training department’s list
of ten). This unfortunately
set in train a process which culminated
in six more learners being appointed in the Thohoyandou zone than
ought to have been the
case.
[9]
It warrants
mention that the difference in the selection method used by Ms
Motimele and the training department, which accounted
for the
difference in the numbers, is that Ms Motimele used 31 April 2014 as
the cut-off date for the learners having passed their
trade test,
whereas the training department’s spreadsheet appears to have
listed the learners who had qualified as at the
date that it was sent
(i.e. 1 July 2014). The learners who qualified after 31 April 2014
stood to be considered for employment
during a second recruitment
phase.
[10]
Reverting
to the chronology of events, following the receipt of the training
department’s spreadsheet, Mr Masokwameng then
attended to
processing the recruitment of the ten learners listed on the
spreadsheet – this under the oversight of the applicant.
This
culminated in the preparation of written offers of employment for
them, which were signed by Mr Bala (senior manager maintenance
and
operations of the Limpopo operating unit) on behalf of Eskom on 8
July 2014. The positions on offer were for senior technical
officials
commencing on 1 July 2014, at a remuneration level of some R225 000
per annum.
[11]
On 9 July
2014, Ms Motimele sent these written offers of employment to the
applicant and Mr Masokwameng under cover of an email.
The key part of
this email read:
“
Signed letters for your
distribution.
Check them before you distribute,
especially on the acceptance site [sic], just to ensure that you did
not mix names.”
[12]
The
applicant understood this instruction to mean that she should check
that the name on the notice of acceptance attached to the
offers of
employment correlated with the offer itself, which she did. The
applicant did not check the names against Ms Motimele’s
spreadsheet because she had still not seen it, and in any event, she
considered everything in order because the offers of employment
had
been signed and approved by Mr Bala and sent to her by Ms Motimele.
[13]
It also
warrants mention that it was common cause that, during the period 1-9
July 2014, the applicant had a congested schedule
which kept her
mostly out of her office, and that she was unwell at a point.
[14]
On either 9
or 10 July 2014, the offers of employment were accepted by the
learners. It thereupon transpired that offers had been
made to and
accepted by six leaners who had not been on Ms Motimele’s
spreadsheet – three each in the Thohoyandou sector
(for which
Mr Masokwameng was responsible) and the Louis Trichardt / Musina
sector (for which the applicant was responsible). Ms
Motimele herself
had failed to pick this up when sending the written offers of
employment to the applicant and Mr Masokwameng on
9 July 2014 –
there having been six too many offers of employment for the
Thohoyandou zone (as a whole).
[15]
During the
afternoon of 10 July 2014, Ms Motimele sent an email to the applicant
and Mr Masokwameng calling them to a meeting the
following day “to
discuss the appointments of learners in Thohoyandou, and why the
deviations from the spreadsheet that was
sent”. The applicant’s
contemporaneous response – sent within half an hour – was
this:
“
First I would like to say I am
sorry for the mess.
I called all the learners wrongly
given the offers and explained that I made the mistake and are
withdrawing the offers.
I take full responsibility for this,
though [sic] I should have followed for the list as there was no
attachment on your mail.
I called on several times without
getting hold of you and Seun did write a mail that there is no
attachment and there was no response
from your side.
Thinking I was doing the right thing I
asked Training for qualified appies which is what we used.
I spoke to all of them and will take
responsibility for it all.
I cannot apologise enough for this. I
will not even mind if disciplinary steps are taken against me, I
should have followed up for
the correct list which I never did and
tried to get it from Training.
The attached spreadsheet we are seeing
it for the first time today when you sent it at 2.
We will not appoint them on the
system. We have retrieved all the documents.
I have attached this mail to show you
that there was no attachment. I am still taking accountability and
will be there tomorrow.”
[16]
The
applicant’s evidence at the arbitration was consistent with
this.
[17]
On 7 August
2014, arising from the above, the applicant was charged with three
counts of misconduct with reference to clauses in
Eskom’s
disciplinary code:
“
2.28 ‘Is
negligent in the performance of his/her duties’: in that on the
9
th
July 2014 you failed to check the correctness of the offer of
employment letters that were given to individual learners, in
accordance
with the spreadsheet that was given to you by your manager
(Rachel Motimele).
2.29 ‘Commits
an act or omission that is detrimental to Eskom’: in that
during the month of
July 2014 you gave offer of employment letters to
unintended recipients, acting out of instruction from your manager
(Rachel Motimele),
which has both financial and legal implications
for Eskom.
2.2
‘Disregards or wilfully fails to carry out lawful order given
to him/her by person
authorised to do so’: in that on the 1
st
of July 2014 you disregarded the instruction given to you by your
manager (Rachel Motimele) to prepare and submit the appointment
documents for 2 learners as stipulated in the list which was attached
to the email and was sent to you on 1 July 2014. Instead,
you added 3
more learners that were not included in the approved list of
recommended learners.”
[18]
With effect
from 31 August 2014, and following a disciplinary enquiry at which
she pleaded guilty as charged, the applicant was
dismissed.
[19]
Mr
Masokwameng was also dismissed on account of the same misconduct.
However, at the CCMA conciliation of his dismissal dispute
on 26
March 2015, the parties entered into a settlement agreement, in terms
of which he was re-employed as an HR officer with effect
from 1 May
2015. The commissioner was the conciliator in this matter.
[20]
Also of
relevance is that, on 15 March 2015, and further to a CCMA
arbitration between Eskom and the learners whose offers of employment
were withdrawn, the CCMA ruled that such withdrawal “may
constitute a dismissal”, and that “the employees may
refer an alleged unfair dismissal dispute to the [CCMA]”. What
became of this is unknown.
[21]
The
arbitration of the applicant’s dismissal dispute conducted by
the commissioner took place on 13 and 14 April 2015. At
the outset of
the arbitration, the commissioner refused an application for legal
representation brought by the applicant –
this in circumstances
where Eskom was represented by a senior IR advisor. The applicant
then represented herself for the first
day of the arbitration (when
Ms Motimele gave evidence) and was represented by a NUM shop steward
on the second day of the arbitration
(when Mr Lithole, the
chairperson of the applicant’s disciplinary enquiry, gave
evidence for Eskom, whereupon the applicant
testified in her
defence).
[22]
It was
common cause at the arbitration that Ms Motimele’s spreadsheet
had come to the attention of all five of her HR officers,
save for
the applicant and Mr Masokwameng, and that appointments had been
correctly made in all zones, save for the Thohoyandou
zone. In
circumstances where the applicant admitted at least the factual basis
of the charges of misconduct brought against her
– albeit
maintaining that she had not received Ms Motimele’s spreadsheet
– the only substantive issue in dispute
between the parties was
the fairness of the sanction of dismissal. In this regard, the
applicant,
inter
alia
,
raised an inconsistency challenge
vis-à-vis
Mr Masokwameng, and asserted that Ms Motimele had failed to pick up
the error she had made (and thus compounded it).
The commissioner’s
award
[23]
To begin
with, the commissioner found that “[i]t is highly improbable
that while the same email was sent to all human resources
officers
including the applicant, her email would be the only one without the
attachment which was the spreadsheet”.
[24]
The
commissioner then proceeded to make these findings about the nature
of the applicant’s misconduct:
“
5.3
It is not in dispute that the email contained a clear instruction
that its contents are private
and confidential and should not be
discussed with persons outside human resources. One would have
expected applicant in view of
the clear instructions to have at least
sent an email to her manager or other colleagues in human resources
if she could not find
the spreadsheet. Her explanation that she did
not do so as Seun had already sent an email cannot be accepted as
Seun was not sending
on her behalf and there had been no discussion
between her and Seun on this issue. Furthermore Seun was merely
mistaken and his
mistake was corrected by his colleagues. Applicant’s
conduct in obtaining information outside of human resources despite
clear instructions has been not only negligent but also deliberate.
5.4
Applicant did not dispute that all other human resources officers who
received the same
email with her complied with the instruction and
used the spreadsheet. They prepared appointment documents for the
correct number
of learners and correct recipients as instructed. In
my view a reasonable human resources officer in the position of the
applicant
would have complied with the instruction and ensured that
the correct number of learners as well as the correct recipients
receive
the appointments letters in the circumstances.
Applicant
has failed to act in the above manner and thus her conduct amounts to
gross negligence
. As stated the applicant did not dispute the
other aspects of the allegations against her.” (Own emphasis.)
[25]
Dealing
pertinently with the issue of sanction, the commissioner went on to
find:
“
5.5
Applicant did not dispute that the charges against her are serious
and have financial implications
on the employer. Moreover it is not
in dispute that the learners who were wrongly appointed instituted
proceedings against the
employer to compel the employer not to revoke
their appointments. Applicant’s misconduct is therefore very
serious due to
the above financial and legal implications. Moreover
applicant acted contrary to clear instructions and thus she could
easily have
avoided the misconduct if she had wanted to. This
aggravates her misconduct. Although applicant pleaded guilty in the
disciplinary
hearing she changed during arbitration and insisted that
she was innocent. Applicant is therefore not remorseful. The sanction
of dismissal is furthermore in line with the employer’s
disciplinary code. The employer’s evidence that the trust
relationship
has been destroyed by the applicant’s conduct has
also not been challenged. I find that the sanction of dismissal is
fair
in the circumstances.”
[26]
I have
emphasised the commissioner’s finding in para 5.4 of his award
(see para 24 above) that the applicant was guilty of
gross
negligence, because this must have been fundamental to the
commissioner’s determination of sanction.
Analysis and
evaluation
[27]
Although Ms
Gantley (who appeared
pro
bono
for the applicant) did not abandon the applicant’s first two
grounds of review (see para 2 above), she did not press them
with any
vigour or enthusiasm – and correctly so, in my view. While the
commissioner may well have been wrong in refusing
the applicant legal
representation, I am unable to find that his decision was
unreasonable. I am similarly unpersuaded that the
commissioner was
disqualified from arbitrating the matter simply because he had
conciliated Mr Masokwameng’s dismissal dispute
in the month
before the arbitration (which produced a settlement that the
applicant relied on to mount an inconsistency challenge).
[28]
This brings
one to what lies at the heart of this matter: an attack on the
reasonableness of the sanction of dismissal imposed by
the
commissioner. As a point of departure, it warrants mention that the
determination of sanction involves three interrelated enquiries:
an
enquiry into the gravity of the misconduct; an enquiry into
consistency; and an enquiry into factors that may have justified
a
different sanction (i.e. mitigating and aggravating factors).
[2]
[29]
Inherent in
an enquiry into the gravity of misconduct is an assessment of the
actual nature of the misconduct. Quite often, it is
a commissioner’s
failure to properly assess the gravity of the misconduct, including
the nature thereof, which causes awards
on sanction to be found
unreasonable on review. A classic example of this is
Wasteman.
[3]
A shop steward was dismissed for insubordination after he refused to
report to his supervisor’s office. A CCMA commissioner
upheld
the dismissal, but the award was set aside on review by this court.
On appeal, the LAC found that the award was reviewable
because the
commissioner had erred in failing to find that the employee’s
misconduct constituted insubordination
per
se
and
not gross insubordination, with only the latter form of misconduct
warranting dismissal. As Davis JA put it:
“
In summary, if the test of
Sidumo
[4]
… is properly applied to this case, neither of the
justifications set out in the award of fourth respondent, stand up to
reasonable scrutiny. A reasonable decision maker in the position of
fourth respondent would have been alive to the distinction
between
insubordination
per se
and insubordination which must give rise to the ultimate sanction of
dismissal. In order to come to the latter conclusion, she
would have
been required to have analysed the facts and found a plausible and
reasonable justification for this sanction. As I
have analysed both
the evidence and her award, these are absent.”
[5]
[30]
Closely
allied to this is
Palluci
Home Depot
.
[6]
The employee, a manager of a furniture retailer, was dismissed for,
inter
alia
,
gross insubordination, in that she had allegedly screamed and shouted
at her managing director. A CCMA commissioner upheld the
dismissal,
but the award was set aside on review by this court. In dismissing
the ensuing appeal, the LAC also found that the commissioner
had gone
wrong in failing to appreciate the distinction between types of
misconduct that warrant dismissal and those that do not.
As
Kathree-Setiloane AJA put it:
“
The commissioner … made
material errors in fact and law by failing to apply his mind to the
distinction on the facts and
the law between insubordination, and
insolence in determining whether the first respondent had committed
the offence of gross insubordination
upon which the appellant based
its decision to dismiss her. Then in determining the fairness of the
dismissal he failed to appreciate
the distinction between gross
insubordination and insolence, and that an employee can only be
dismissed for gross insolence and
not mere insolence. Furthermore, in
assessing the fairness and appropriateness of the dismissal, he
failed to assess the gravity
of the misconduct with reference to the
fact that it was neither wilful nor serious, and that the first
respondent was provoked
into conducting herself in an insolent manner
by the employer … .”
[7]
[31]
Returning
to the present matter, read in context, the charges against the
applicant involve a complaint that she failed to act in
accordance
with Ms Motimele’s spreadsheet mailed to her on 1 July 2014,
and that she failed to discover her error despite
being requested in
Ms Motimele’s email of 9 July 2014 to check things.
[8]
Essentially, the case against the applicant was one of negligence,
which is how the matter was dealt with in argument before me.
(Insofar as the third charge against the applicant is not meant to
convey some form of conscious risk-taking on her part (a form
of
negligence) but instead insubordination, the analysis undertaken
below applies
mutatis
mutandis
.
Quite clearly, any insubordination (which is, in any event, not
apparent because the applicant simply made a mistake in not noticing
Ms Motimele’s spreadsheet) was by no means gross, such as to
warrant dismissal. Insofar as the sanction of dismissal was
upheld
for insubordination
per
se
, it
was thus unreasonable.)
[32]
On an
analysis of the evidence, the applicant may well have acted with a
measure of negligence in three respects, namely in: (i)
failing to
notice that the spreadsheet was attached to Ms Motimele’s email
of 1 July 2014 (which it must have been as it
was received by other
recipients); (ii) failing to take further steps to obtain the
spreadsheet from Ms Motimele on 1 July 2014;
and (iii) failing to
uncover the error in response to Ms Motimele’s email of 9 July
2014.
[33]
But in
order for this to warrant dismissal, it would have to be determined
that the applicant was
grossly
negligent, because negligence
per
se
does
not warrant dismissal
[9]
(just
like insubordination
per
se
and
insolence does not
[10]
). In
argument, Mr Ramdaw (who appeared for Eskom) submitted that ordinary
negligence warrants dismissal, and undertook to provide
me with
authorities in support of this proposition. Having studied the list
of authorities subsequently submitted by him, I am
fortified in my
view that only gross (or grave) negligence warrants
dismissal.
[34]
When will
negligence constitute gross negligence? Albeit in the civil law
context, the SCA said this about the distinction in
Transnet
:
[11]
“
It follows, I think, that to
qualify as gross negligence the conduct in question … must
involve a departure from the standard
of the reasonable person to
such an extent that it may properly be categorised as extreme; it
must demonstrate, where there is
found to be conscious risk-taking, a
complete obtuseness of mind or, where there is no conscious
risk-taking, a total failure to
take care. If something less were
required, the distinction between ordinary and gross negligence would
lose its validity.”
[35]
Grogan says
this about gross negligence:
[12]
“
To warrant dismissal at first
instance, negligence by an employee must be ‘gross’.
Gross negligence may be said to have
occurred if the employee is
persistently negligent, or if the act of omission under consideration
is particularly serious in itself.
While in civil law the term ‘gross
negligence’ has a technical meaning, in employment law it can
be taken to mean negligence
that is particularly inexcusable.”
[36]
Seen in the
light of these authorities, did the applicant’s conduct in the
three respects identified above involve a departure
from the standard
of a reasonable person (in this case an employee in the position of
the applicant) to such an extent that it
can properly be categorised
as extreme or particularly inexcusable? To my mind, the answer is
clearly “no”. This for
the following reasons.
a)
While it is
so that the applicant ought to have noticed that the spreadsheet was
attached to Ms Motimele email of 1 July 2014, her
failure to do so
was clearly not extreme or particularly inexcusable. Indeed, both
Messrs Masokwameng and Hlabane made the same
mistake. And the failure
to notice an email attachment is, as Mr Ramdaw fairly acknowledged,
something that often occurs in the
ordinary course of email usage.
b)
While it is
so that the applicant can be criticised for not having taken further
steps on 1 July 2014 to obtain the spreadsheet
from Ms Motimele, the
extent of her negligence must be assessed in the light of the steps
that she did take to secure the information
in question. As stated
above, it was the applicant’s case that she: (i) tried to
contact Ms Motimele telephonically, but
was unsuccessful; (ii)
considered an email to her to be inefficient because Mr Hlabane had
already sent one and had not received
a response; and (iii) in
effect, believed that the information that would have been contained
in the attachment could be obtained
from the training department,
which resulted in her using her initiative and contacting them.
Significantly, it was not established
in evidence that the applicant
would have had reason to believe that the information received from
the training department would
not correlate with that contained in Ms
Motimele’s spreadsheet. Also significant is that the applicant
was required to act
urgently on 1 July 2014, and did so. To my mind,
seen in the context of what the applicant actually did, her failure
to take further
steps to secure the spreadsheet from Ms Motimele that
day was clearly not extreme or particularly inexcusable. Put
differently,
the applicant’s conduct can by no means be
described as “a total failure to take care”,
[13]
such as to constitute gross negligence; to the contrary, she acted
with a significant degree of care.
c)
While it is
so that the applicant can also be criticised for not having uncovered
the error in response to Ms Motimele’s email
on 9 July 2014,
again, her failure to do so was clearly not extreme or particularly
inexcusable. This is so because in circumstances
where she had still
not seen Ms Motimele’s spreadsheet, she clearly remained of the
view that the information received from
the training department was
reliable (which was not unreasonable), and had no reason to believe
that the offers of employment did
not correlate with such
information.
[37]
This then
leaves the issue of the loss or potential loss caused by the
applicant’s negligence. On the evidence presented at
the
arbitration, it is unknown whether Eskom would have been able to
escape liability in the event of the learners whose appointments
were
revoked having pursued an unfair dismissal claim against Eskom. But
to my mind, the fact that the applicant’s conduct
caused or
could have caused loss to Eskom, did not, in itself, serve to convert
it from negligence into gross negligence.
[38]
In sum, I
am of the view that the applicant was not guilty of gross negligence,
such as to warrant dismissal. I am further of the
view that the
evidence established this overwhelmingly – this to such an
extent that a finding to the contrary is not sustainable
on the facts
of the case, and does not fall within a band of reasonable
decisions.
[14]
I am fortified
in this view by the fact that the applicant also had four years’
service, with a clean disciplinary record.
[39]
Turning to
the commissioner’s award, the following errors and
misdirections are apparent.
a)
In para
5.3, the commissioner misconstrues the relevance of Mr Hlabane’s
email. The fact that he did not send the email on
the applicant’s
behalf and that they had not spoken, did not detract from the fact
that the applicant considered that sending
a similar email to Ms
Motimele would take the matter no further – thus her decision
to contact the training department.
b)
Also in
para 5.3, the commissioner finds that the applicant misconducted
herself in breaching confidentiality by contacting the
training
department. But this falls outside of the scope of the charges. In
any event, her email to the training department records
that the
recruitment process was confidential.
c)
In para
5.4, the commissioner finds that the applicant’s conduct
amounted to gross negligence. Notwithstanding the fact that
the
applicant was not charged with gross negligence, the commissioner’s
finding of gross negligence was unreasonable on the
analysis
undertaken above – the commissioner having ignored material
facts and failed to undertake a balanced assessment
of the evidence.
d)
The finding
by the commissioner in para 5.5 that the “applicant acted
contrary to clear instructions and thus she could easily
have avoided
the misconduct if she had wanted to”, ignores the applicant’s
defence, namely that Ms Motimele’s
spreadsheet had not come to
her attention.
e)
The
applicant did not recant on her plea of guilty at the arbitration and
insist that she was innocent, as found in para 5.5. She
accepted the
factual basis of the charges against her, but maintained (as she had
done at her disciplinary enquiry) that she had
not received Ms
Motimele’s spreadsheet. The commissioner’s finding of a
lack of remorse was thus unreasonable.
f)
Eskom’s
disciplinary code was not introduced into evidence, so there exists
no basis for the finding that dismissal was in
line with the code, as
found in para 5.5. And insofar as the code provides for dismissal in
the case of negligence
per
se
,
this is at odds with the law.
g)
Eskom’s
evidence that the trust relationship had been destroyed was, in
effect, based on the assumption that the applicant
was guilty of
serious misconduct, when she was not.
[40]
To my mind,
the distorting effect of these errors and misdirections –
particularly the commissioner’s failure to consider
material
facts and undertake a balanced assessment of the evidence, resulting
in a finding of gross negligence – was the
production of an
unreasonable result,
[15]
i.e.
that the sanction of dismissal was fair in the circumstances. Put
differently, had the commissioner properly acquitted himself,
he
could not reasonably have found that the sanction of dismissal was
fair in the peculiar circumstances of this matter.
[41]
Turning to
the issue of relief, I intend to finally determine the dismissal
dispute myself. In circumstances where I have found
that the
commissioner’s decision to uphold the sanction of dismissal was
unreasonable, it follows that the applicant’s
dismissal was
substantively unfair, with there being no reason why she ought not to
have been afforded the primary remedy of reinstatement.
In
circumstances where the applicant was guilty of a measure of
negligence (which Mr Gantley accepted), this should, in my view,
be
coupled with a written warning valid for six months.
Order
[42]
In the
result, the following order is made:
a)
The second
respondent’s award dated 23 April 2015 is reviewed and set
aside;
b)
The second
respondent’s award is substituted with an order that the
applicant’s dismissal by the third respondent was
substantively
unfair, and that the applicant is retrospectively reinstated to the
date of her dismissal on 31 August 2014 with
full back-pay, on a
written warning (for negligence) valid for six months;
c)
There is no
order as to costs.
________________________________
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For the applicant: Ms
K Gantley of Cowan – Harper Attorneys
For the third
respondent: Mr A Ramdaw of Roy Ramdaw & Associates
[1]
Although Ms Motimele denied this, she
did so on the basis that the applicant had failed to raise the issue
with her when seeing
her at a training session on 4 July 2014, which
makes little sense. The applicant’s evidence that she had
attempted to
contact Ms Motimele telephonically on 1 July 2014 was
not challenged under cross examination. That she did so is also
borne out
by her email of 10 July 2014 addressed below.
[2]
CCMA Guidelines: Misconduct
Arbitrations, para 94.
[3]
Wasteman Group v South African
Municipal Workers’ Union
[2012] 8 BLLR 778 (LAC).
[4]
Sidumo & another v Rustenburg
Platinum Mines Ltd & others
[2007] 12 BLLR 1097 (CC).
[5]
At 783F-G. See similarly,
Zono
v Gruss NO & others
[2011] 9 BLLR 873
(LAC) at para 35.
[6]
Palluci Home Depot (Pty) Ltd v
Herschkowitz and others
[2015] 5 BLLR 484 (LAC).
[7]
At para 42.
[8]
There is little difference between
the second and third charges.
[9]
Grogan
Dismissal
(2
nd
ed) at 246.
[10]
See
Wasteman
(
supra
)
and
Palluci Home Depot
(
supra
).
[11]
Transnet Ltd t/a Portnet v Owners
of The MV Stella Tingas and Another: MV Stella Tingas
2003
(2) SA 473
(SCA) at para 7.
[12]
Grogan (
supra
)
at 246-247.
[13]
See the quotation from
Transnet
(
supra
).
[14]
See
Fort
v Coega Development Corporation (Pty) Ltd and Others
(PA8/16)
[2017] ZALAC 50
(17 August 2017) at paras 93 and 95.
[15]
See
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013] 11 BLLR
1074
(SCA) at para 25;
Head
of the Department of Education v Mofokeng and others
[2015] 1 BLLR 50
(LAC) at para 33.