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[2017] ZALCCT 71
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Chevron South Africa (Proprietary) Limited v Chemical, Energy, Paper, Printing, Wood and Allied Workers Union and Others (C734/2016) [2017] ZALCCT 71 (15 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
reportable
Case
No: C 734/2016
In
the matter between
CHEVRON
SOUTH AFRICA (PROPRIETARY) LIMITED
Applicant
and
CHEMICAL
ENERGY PAPER PRINTING WOOD
AND
ALLIED WORKERS UNION
on
behalf of BONGANI VOYIYA
First
Respondent
RETIEF
OLIVIER,
N.O
Second Respondent
NATIONAL
BARGAINING COUNCIL FOR THE
CHEMICAL
INDUSTRY
Third Respondent
Heard:
15 June 2017
Delivered:
15 December 2017
Summary:
[Test for review restated-application partly granted-No
order as to costs]
JUDGMENT
MABASO,
AJ:
Introduction
[1]
The applicant is Chevron South Africa (Proprietary) Limited (the
applicant), the first respondent is the Chemical Energy Paper
Printing Wood and Allied Workers Union on behalf of Bongani Voyiya
(the employee), the second respondent is Retief Olivier,
N.O
(the
arbitrator), and the third respondent is the National Bargaining
Council for the Chemical Industry (the Bargaining Council).
The
employee is the only party that is opposing this application.
[2]
The applicant approached this
Court by way of a review application, to review and set aside the
arbitration award issued by the
arbitrator under the Bargaining
Council case number WCCHEM219-15/16 wherein he found that the
employee’s dismissal was both
procedurally and substantively
unfair, and to substitute such an award with an order that the
dismissal of the employee was substantively
and procedurally fair,
alternatively to direct that the unfair dismissal dispute be remitted
to the Bargaining Council for arbitration
de
novo
before any
commissioner other than the arbitrator.
[1]
Grounds
for the review
[3]
The applicant in its founding affidavit asserted that the arbitrator
failed to apply his mind to the material evidence before
him, and he
did not attach sufficient weight to the material and/or did not have
regard to the totality of the evidence before
him. In its
supplementary affidavit, the applicant said that the arbitrator
misconceived the nature of the enquiry, alternatively
made an error
of law. In support of the latter,
inter alia
, it asserted
that,
“
even
if the second respondent was required to determine the fairness of
the dismissal strictly according to whether it was for misconduct
or
incapacity, if he had properly assessed the evidence before him he
would have determined that [the employee’s] dismissal
was based
on misconduct. That was the true dispute before him and if he had
applied to the standards applicable to such dismissals
he was bound
to conclude that the dismissal was fair”
[4]
The applicant further asserted that the arbitrator, “…
misconceived the nature of the inquiry he was required to embark
on, alternatively committed a material error of law,
because: he
failed to realise that he was required determine whether the
applicant had a fair reason (in all circumstances) to
dismiss [the
employee] …He was not required to determine whether there was
a fair reason relating strictly to incapacity
or misconduct
per
se
”.
[5]
The applicant submitted that
the arbitrator came to a conclusion which a reasonable decision-maker
could not have arrived at taking
into account the evidence that was
presented before him. One of the examples that were provided was that
the employee refused or
failed to participate in the incapacity
enquiry which had been arranged by the applicant, therefore, the
performance improvement
plan process (PIP) was made impossible by the
conduct of the employee and this evidence was not challenged.
[2]
[6]
That the arbitrator made an
error of law in that he did not realise that employers are not
prohibited from using disciplinary and
incapacity processes
simultaneously.
[3]
[7]
That in finding that the
employee’s dismissal was substantively unfair the arbitrator
failed to take into account the totality
of the circumstances and
balance the interests of all parties,
[4]
for example, that the employee continued to perform poorly after the
inquiry that had found him guilty .
[5]
Relevant
background/ the arbitration:
[8]
The employee worked for the applicant from 1995 until dismissed in
2015. Following his dismissal, he declared an unfair dismissal
dispute to the Bargaining Council and one of the reliefs sought was
that of reinstatement.
[9]
The parties before the arbitrator submitted pre-arbitration minutes
wherein they agreed that the arbitrator is required to decide,
under
facts in dispute, the following issues:
“
3.1
whether the applicant’s dismissal was for a fair reason
3.2
whether the sanction imposed on the applicant was
appropriate/inconsistent application of
discipline
3.3
procedural unfairness in relation to state of health at the time of
enquiry”
[6]
[10]
Mr Njomane on behalf of the applicant advised the arbitrator that the
reason for the dismissal of the employee was that,
“
the
employee failed to make the required performance standards and his
failure to do so dates back to at least 2009 the applicant
was on a
final written warning for failing to meet performance standards and
the respondent followed its performance improvement
plan policy and
attempts to assist the applicant to meet the performance standards.
The applicant did not co-operate with the respondent
in this regard
and at the end of the performance improvement plan. There was no
improvement in his performance was accordingly
terminated.”
[11]
The issue of dismissal was not in dispute, therefore, the applicant
as an employer had an onus of proof to show that the dismissal
of the
employee was fair, based on poor performance, taking into account
that the applicant in its opening statement as mentioned
above said
that its case was about performance.
[12]
The first witness for the applicant was Mr Thebe, his evidence can be
summarised as follows: the employee was placed under
PIP from 22 June
2015 until the end of October 2015. He indicated that the
employee did not indicate any type of assistance
needed. Within
this period, the employee was summoned before the disciplinary
hearing for failure to attend PIP reviews,
and subsequently, he was
found guilty. Some of the unchallenged evidence of the applicant was
as follows,
“
MR
THEBE: … The requirement of being punctual at work. Secondly,
it was the area where I put a weekly meeting and the weekly
meeting
was to help him improve on the performance and not just that, but be
able to direct him and coach him and make sure that,
you know, he
understands exactly what the requirements are and executive
accordingly…And he failed to attend those particular
meetings,
and he was even given during disciplinary enquiry found guilty of
that.”
[13]
Mr Thebe further stated that,
the applicant was his subordinate, working as an incident
investigation reporter and analyser.
[7]
The employee’s duties involved reporting incidents, and matrix
in terms of safety and to assist individuals in the
refinery.
[8]
As Mr Thebe joined the department in April 2014, the employee was
already an underperformer.
[9]
There was a process of addressing his performance and this had
to be done within a particular timeframe and then assessed
as to
whether his performance improved or not.
[10]
[14]
Mr Thebe mentioned two areas of
concern about the employee, namely: some incidents were not
investigated in time based on what was
required, and late arrival at
work without notifying his supervisor .
[11]
He then decided to put in weekly meetings with the employee in order
to discuss this and other areas of focus whereby the employee
can be
assisted to improve.
[12]
There were supposed to be monthly reviews, the first one was supposed
to take place on 24 July 2015 but it did not take place and
according
to this witness the reason for such was that “
Because
there wasn’t any improvement in terms of the performance
”.
[13]
He then proceeded to construct the charge of non-performance to some
issues that were in the PIP.
[15]
Before the date of 24 July
2015, the employee was issued with a notice to attend a disciplinary
hearing which subsequently took
place on 24 July 2015 (the date of
the monthly review ) and was found guilty of misconduct for not
attending weekly meetings.
[14]
He was issued with a final written warning following this finding.
Due to the employee’s non-performance, this witness had
to do
his work,
[15]
as some of the employees were sending complaints to him and he
had to communicate this to the employee.
[16]
In one of the emails that were sent to the employee this witness said
“
Please note, this is
an Essential Suite item that is overdue, this is the second Essential
Suite action item that you have not addressed
in
time.
”
[17]
And it meant that he had “
not
met the agreement as per [his] PIP
”
[18]
instead of improving the employee kept on saying to this witness “
it
seems like [Mr Thebe] seeking to fire him
”.
[19]
This evidence, again, was never disputed during cross-examination.
[16]
Mr Thebe stated that when the
applicant wanted to hold an enquiry for the employee, they received a
medical certificate dated November 2015.
[20]
Following a couple of postponements of the poor performance enquiry,
it finally took place on 26 November 2015, and the
employee
was in attendance.
[21]
[17]
During cross-examination, Mr
Thebe’s evidence was as follows: as the PIP was for the period
of June 2015 to October 2015,
and between this period there were no
reviews which were done.
[22]
The reason proffered was that there was an enquiry in July 2015 which
was supposed to take place, and further stated that “
so
we did not even have the review and then after that there was another
charge for incapacity
”
[23]
and that a month before the end of the review period, in September
2015, the decision had already been taken that the incapacity
hearing
should be initiated.
[24]
Mr Thebe did not dispute the fact that because a decision had been
taken in July 2015 to proceed with the hearing, there was no
need for
a performance review.
[25]
In respect of Essential Suite; Mr Thebe confirmed that the employee
closed it off eventually.
[26]
When he was asked as to whether he had concerns about the veracity of
the medical certificates, responded by saying no.
[27]
[18]
Ms Cornelissen’s evidence
was as follows: she confirmed that she received the sick note from
one doctor Williams that the
employee should not work from 17 to 23
November 2015, the recommendation was further that the hearing
scheduled for the 26
November 2015 be postponed as the employee was
not emotionally stable and that the hearing could be detrimental to
his mental health
and the doctor further recommended that he should
be given the period of 3 to 4 weeks if possible .
[28]
Further, she confirmed that on the second sitting of the hearing the
employee was not himself meaning he was “
unwell
”.
[29]
[19]
Mr Mitchell testified that
another disciplinary hearing was held where a recommendation was made
after the employee had been found
guilty, that “
let’s
give the PIP a chance and see whether the employee performance will
not improve after the plan B has been concluded”
.
[30]
It is important to mention that this outcome was issued in September
2015,the charges were related to the employee’s poor
performance, specifically for dates of 18 March 2015, 30 March 2015,
between 20 April and 07 May 2015, and 11 May 2015. The employee
pleaded guilty to four of those charges.
[31]
This evidence was also not disputed during cross-examination.
Clearly, this demonstrates that the employee failed to meet
the
performance standard and he was aware of such required performance
standard and this happened before he was contracted to PIP.
[20]
The arbitrator looked at the finding by the first chairperson (Ms
Cornelissen) of the incapacity enquiry and concluded that
the
chairperson’s finding showed a sign of not understanding the
nature of the incapacity enquiry.
[21]
The arbitrator further found that the incapacity enquiry held on
26 November 2015 should have been postponed because
the
employee had delivered a medical report from a psychiatrist that he
was not emotionally and mentally fit to work, taking into
account
that the chairperson had no medical experience and to insist that the
employee should proceed with the hearing denied him
an opportunity to
present his case, therefore it was procedurally unfair. I agree with
the arbitrator in this regard.
[22]
The arbitrator further states that the second chairperson (Mr
Mitchell) of the enquiry made recommendations for the determination
of employment of the employee because the employee underwent
disciplinary hearings without any change to his behaviour, therefore
according to him the cause of this was that the supervisor would have
diverted the PIP process into the disciplinary procedure,
meaning the
hearing and the performance enquiry were used interchangeably and
according to him Mr Mitchell was the only person
who understood the
process. The employee was called before a hearing for the issues
related to poor performance, and Mr Mitchell
made no finding in
respect of that instead he made a recommendation that the employee
should be referred to the poor performance
enquiry, as stated in
paragraph 19 above. It is important to mention that the arbitrator,
after ruling in respect of Mr Mitchell’s
finding (of 23
September 2015) he says:
“
However,
there was no evidence that following [Mi
t
chell’s
finding] that there was any further opportunity provided to the
applicant to improve and to meet the required performance
standard.”
[23]
The arbitrator further says that the applicant did not consider any
alternatives to dismissal which is a key issue in consideration
of
poor perfomance dismissal. In conclusion, the arbitrator indeed ruled
in favour of the employee and ordered the applicant to
reinstate him
with back pay.
The
law and application thereof
[24]
Both the applicant’s and
the employee’s representatives, in their heads of argument,
refer this Court to the matter
of
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[32]
as part of the yardsticks in deciding this review application. In the
same judgment, I propose to deal with what I prefer to refer
to as
the six pillar requirements
[33]
,
which read as follows,
“
(i)
In terms of his or her duty to deal with the matter
with
the minimum of legal formalities
,
did the process that the arbitrator employ give the parties a
full
opportunity to have their say
in respect of the dispute?
(ii)
Did the arbitrator
identify
the dispute he or she was
required to arbitrate …?
(iii)
Did the arbitrator
understand the nature of the dispute
he or she was required to arbitrate?
(iv)
Did he or she
deal with the substantial merits
of the
dispute? and
(v)
Is the arbitrator’s decision one that another
decision
maker could reasonably have arrived at based on the
evidence?
”(Emphasis added.)
[25]
The SCA in
Shoprite
Checkers (Pty) Ltd v CCMA and others
[34]
discussing a review application held as follows,
“
There
may well be a fine line between a review and an appeal, particularly
where – as here – the standard of review
almost
inevitably involves a consideration of the merits. However, whilst at
times it may be difficult to draw the line, the distinction
must not
be blurred. The drafters of the LRA were clearly alive to the
distinction”.
[26]
The applicant is not challenging the award on the basis that the
arbitrator did not give the parties an opportunity to have
their say
(pillar 2).It is also not alleged that he did not deal with minimum
formalities ( pillar 1) nor identify the dispute(pillar
3).Its bone
of contention is that the arbitrator misconstrued the case before
him, meaning that he did not understand the dispute,
therefore, he
failed to deal with the substantial merits of the dispute between the
parties; in a sense he committed an error of
law as his award is one
that a reasonable decision-maker could not have reached taking into
account the totality of evidence before
him(pillars 4 to 6).
[27]
In answering this question one
has to determine as to what was the case before the arbitrator.
Advocate Bosch for the applicant
refered this Court to the case of
DENOSA obo Du Toit v Western
Cape Department of Health
[35]
which confirms that an error of law maybe be a ground for
review. This paragraph amongst other things provides that “
it
would appear that the concept of error of law is relevant to the
review of an arbitrator’s decision within the context
of the
factual matrix as
presented in the present dispute
”
.
[28]
In casu
, as indicated above, the applicant stated in the
opening statement that the case was about poor performance due to the
fact that
the employee did not cooperate which led to him not meeting
the required standard and therefore his contract was terminated. The
evidence of the three witnesses for the applicant clearly shows that
the issue was about the poor performance enquiry as Mr Mitchell
held
that despite finding the employee guilty he must be given an
opportunity in respect of the poor performance enquiry. The
chairperson who presided over the poor performance enquiry confirmed
this. Under the circumstances, I conclude that the arbitrator
understood
part
of the enquiry before him.
[29]
I agree with the applicant that the poor performance and misconduct
inquiries may intertwine especially if the misconduct emanated
from
the process of poor performance. However, in this case, one has to
take into account that the employee was not dismissed after
being
found guilty of misconduct instead a recommendation was made that
there must be a poor performance enquiry which subsequently
took
place. What created the problem for the applicant was to abandon the
performance reviews as Mr Thebe confirmed this by saying
“
So
there wasn’t any reviews done on the PIP...”
.
[30]
As the applicant asserted that the arbitrator misconstrued the nature
of the enquiry, I need to look at what was required of
the arbitrator
which among other things was that “whether the applicant’s
dismissal was for a fair reason”. In
order to decide on this, I
need to look at what is the law in respect of dismissal based on poor
performance. The code of good
practice in the LRA, in respect of poor
performance enquiry, provides that:
“
9. Guidelines
in cases of dismissal for poor work performance. Any person
determining whether a dismissal for poor
work performance is unfair
should consider—
(a)
whether or not the employee failed to meet a performance standard;
and
(b)
if the employee did not meet a required performance standard
whether or not
—
(i)
the employee was aware, or could reasonably be expected to have been
aware,
of the required performance standard;
(ii)
the employee was given a fair opportunity to meet the required
performance standard;
and
(iii)
dismissal
was an appropriate sanction for not meeting the required performance
standard
.”(
Own
emphasis)
This
part is classified as substantive criteria. The first question that
has to be asked is whether the employee concerned met the
required
standard, thereafter ask as to whether he was aware of the required
standard. The issues of whether the employee was given
a fair
opportunity and appropriateness of sanction are the latter part of
the enquiry.
[31]
In this matter, the arbitrator
was required to decide as to whether the employee’s dismissal
was for a fair reason, which
is part of the substantive criteria, as
agreed between the parties. The applicant as mentioned above
complains among other things
that the arbitrator did not decide as to
whether the dismissal was for a fair reason. Mr Thebe presented
evidence that the employee
did not meet the required standard (a
period before PIP-between March 2015 and May 2015), and the
employee pleaded guilty.
A period of PIP(June 2015 to October 2015),
the employee was not cooperating which led to disciplinary hearing
being held
against him, because he was not attending weekly meetings
between June and July 2015,
[36]
by 22 August 2015 the employee failed to submit slides
as required which led to Mr Thebe to submit them on his
behalf.
[37]
[32]
There was also undisputed evidence by Mr Thebe that the employee did
not indicate as to how he could be assisted, as Mr Thebe
testified as
follows:
“
there
was never any forthcoming of the particular assistance in terms of
any of these areas to say that, you know, this issue specifically
that needed to be resolved before for him to be able to make this
areas of concern”.
[38]
[33]
Taking into account all of the above, and that the employee was not
cooperating with the applicant in order to be assisted
to improve his
performance, I am of the view that a reasonable decision-maker could
not have concluded that the applicant did not
give the employee a
proper opportunity to improve and that there was no proper assessment
in the PIP process, as the applicant
could only assess a person
willing to be assisted. I therefore conclude that the arbitrator did
not deal with the substantial merits
of the dispute, therefore his
award, except his conclusion in respect of procedural aspect of
dismissal, is one that another reasonable
decision-maker could not
have arrived at taking into account the totality of evidence that was
presented before him.
Substitute
the award or remit to the Bargaining Council
?
[34]
Considering my conclusion above, as parties agreed in the
pre-arbitration minutes that one of the issues that the arbitrator
was required to decide was the issue of appropriateness of sanction,
I am of the view that the matter should be remitted to the
Bargaining
Council to appoint a commissioner to decide only on this issue.
Order
1.
The arbitration award issued under the third respondent case number
WCCHEM219-15/16 is reviewed
and set aside and substituted with the
following order.
“
(i)
The dismissal of Mr Bongani Voyiya was procedurally unfair,
therefore, the applicant is
ordered to pay him a compensation
equivalent to 3 months of his salary;
(ii)
the matter is remitted to the
third respondent to be decided
de novo
, before any
commissioner, on the following terms: (a) the only issue to be
decided is whether or not the dismissal was an appropriate
sanction,
and if not, substitute it with an appropriate sanction, (b) both
parties be allowed to lead evidence only in respect
of this issue”
2.
There is no order as to costs.
—————————————
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Advocate C Bosch
Instructed
by:
Cliffe Dekker Hofmeyr Inc
For
the Respondent:
Advocate M Garces
Instructed
by:
Simons Van Staden Attorneys
[1]
Notice of motion, pages 1 and 2.
[2]
Founding affidavit, at para 29.
[3]
Ibid, at para 5.3.
[4]
Ibid, para 6.2.
[5]
Ibid, at page 31.
[6]
Page 482, at para 3.
[7]
Ibid, page 13.
[8]
Ibid, page 17.
[9]
Ibid, page 18.
[10]
Ibid, page 20, also page 31 -32, 47.
[11]
Ibid, page 29.
[12]
Ibid, page 22.
[13]
Ibid, page 25.
[14]
Ibid, page 27.
[15]
Ibid, pages 31, 32, and 462.
[16]
Ibid, page 34.
[17]
Own emphasis.
[18]
Records, page 35.
[19]
Ibid,page 37.
[20]
Ibid,page 38-40.
[21]
Ibid,page 41.
[22]
Ibid,page 47.
[23]
Ibid, page 48.
[24]
Ibid, page 48.
[25]
Ibid, page 53. 60, 62, 63, 101
[26]
Ibid, page 87.
[27]
Ibid,page 88 to 89.
[28]
Ibid, page 115 to 119, 131.
[29]
Ibid, page 120.
[30]
Ibid, page 162
[31]
Ibid, page 171.
[32]
[2014] 1 BLLR 20 (LAC).
[33]
The underlined.
[34]
[2009] 3 All SA 466 (SCA).
[35]
(2016) 37 ILJ 1819 (LAC), at para 22.
[36]
Pages 26 and 240
[37]
Page 31, 223 and 462-3.
[38]
Page 23.