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[2017] ZALCCT 69
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Shevel v CCMA and Others (C854/16) [2017] ZALCCT 69 (15 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NUMBER: C 854/16
Not
reportable
Of
interest to other judges
In
the matter between:
DANIEL
SHEVEL
and
CCMA
COMMISSIONER
M. NASH N.O.
Dr
E SHEVEL INC.
Heard:
30 November 2017
Delivered:
15 December 2017
SUMMARY:
Son
dismissed by father. Dismissal fair. Review dismissed.
Applicant
First respondent
Second respondent
Third respondent
JUDGMENT
STEENKAMP
J:
Introduction
[1]
Co
mmunio
mater rixarum est
,
[1]
the maxim has it. But in this case, it may have to be amended to
conductio
operis pater rixarum est.
The
dispute concerns a father dismissing his son, whom he employed. The
son referred an unfair dismissal dispute to the CCMA.
[2]
The arbitrator
[3]
found the
dismissal to be fair. The son, Mr Daniel Shevel (the applicant) seeks
to have that award reviewed and set aside.
Background
facts
[2]
Dr Elliot Shevel built up a medical practice known as The Headache
Clinic in Parktown, Johannesburg, from 1992. He employed
his son,
Daniel, for some 16 years. This would lead to untold family conflict
and more than headaches on both sides.
[3]
Daniel holds a Business Science degree and an MBA. He has no medical
qualifications. But his real passion is surfing. So he
joined his
father’s business (Dr E J Shevel Inc, the third respondent)
around 1998, but he did not live and work in Johannesburg.
He lived
in Kommetjie where he could surf the big waves of Outer Kom, Crayfish
Factory and other iconic surf sites. He used a web-based
product that
enabled him to handle the administration of the business remotely.
[4]
Daniel was made a director of the business or practice of Dr E J
Shevel Inc. in 2005. But he resigned as a director soon afterwards,
because, not having a medical qualification, he could not act as
director. Since then Dr Elliot Shevel has been the sole director
and
shareholder.
[5]
Daniel registered a new entity, Migraine Research Institute (Pty) Ltd
[cleverly abbreviated as MRI] in 2008. He was registered
as the sole
director of MRI. Despite the name, MRI did not do any medical
research – it was, in fact, the administrative
arm of The
Headache Clinic (the commercial name under which Dr E J Shevel Inc.
practises).
[6]
The Clinic paid Daniel a salary. It deducted Unemployment Insurance
Fund contributions, tax and other statutory deductions.
Daniel also
acted as a notional partner in the business and shared in the
profits. He enjoyed additional benefits such as a company
credit
card.
[7]
Things started falling apart around 2014. A family feud ensued
between Daniel, on the one hand, and his father, his mother,
his
brother Michael (also employed by Dr Shevel) and his sisters on the
other hand.
[8]
A number of incidents led to Daniel being suspended on 27 October
2015. He says that they arose because he was concerned about
possible
malpractice and about the safety of patients; Dr Shevel disputes the
motivation. Be that as it may, on 19 November 2015
he was called to a
disciplinary hearing to face the following allegations of misconduct:
“
Charge
1:
Gross insubordination in that you made death threats to Dr E
Shevel, the director of The Headache Clinic.
Charge
2:
Gross insubordination and misconduct in that you attempted a
hostile takeover in the business.
Charge
3
: Gross insubordination in that you prevented Dr Shevel from
attending at the clinic and resulting in patients not being attended
to despite having scheduled appointments.
Charge
4
: Gross insubordination in that you have undermined the
authority and position of Dr E Shevel including but not limited to
locking
the office door of Dr Shevel and not allowing him access to
the office.
Charge
5
: Gross misconduct in that you have been involved in the
incitement of staff to embark on an illegal strike and threatening of
the
staff and not playing any role in convincing the staff to return
to work.
Charge
6
: Gross misconduct in that you have removed property belonging
to the clinic without authorisation and that you have failed to
return
same [
sic
] despite demand.
Charge
7
: Gross misconduct in that you have attempted to use the email
of certain staff members without authorisation whilst you were on
suspension.”
[9]
An independent chairperson, Adv Mark Meyerowitz of the Johannesburg
Bar, chaired the disciplinary hearing.
[10]
Meyerowitz
proceeded from the uncontroversial premise that an employee owes a
duty of good faith to an employer.
[4]
He accepted that, despite Daniel’s protestations about his role
as CEO, full control of The Headache Clinic could not be
wrested away
from Dr Elliot Shevel as sole director and shareholder. Dr Shevel is
personally liability for the actions of the company,
being a personal
liability company.
[11]
He then dealt with Daniel’s justifications for his actions.
Daniel denied attempting a “hostile takeover”
but
nevertheless admitted that, due Dr Shevel’s alleged
malpractice, he had taken it upon himself to stop Dr Shevel from
treating patients and to deny Dr Shevel any control over the
operational and financial aspects of the business. Daniel argued that
he had acted in the best interests of the patients and of the
business.
[12]
Meyerowitz noted that Daniel has no medical training or expertise.
Accordingly, it was unlikely that he knew better than his
father how
to treat patients. And if he had a genuine concern about his father’s
abilities, he should have reported him to
the Health Professions
Council of South Africa (HPCSA). [Daniel did eventually report his
father to the HPCSA, but at the time
that the matter was heard in
this Court that body had found no wrongdoing].
[13]
Insofar as Daniel purported to act in the best interests of the
business, the chairperson found, he had no authority to contradict
the wishes of Dr Shevel as sole director and shareholder.
[14]
Meyerowitz then dealt with each of the allegations and found that
Daniel had committed the alleged misconduct. He recommended
summary
dismissal. Dr Shevel dismissed him on 8 December 2015.
Death
threats
[15]
In a series of acrimonious text messages between Daniel and his
brother, Michael, on 18 October 2015 – some of them while
Michael was at a strip club, Mavericks – Daniel said, amongst
others, the following:
“
Elliot’s
license and his ability to earn will be removed fast.”
“
He
looses [
sic
] his license tomorrow if he fails to comply
Michael.”
“”
He’s
going to die in jail Michael”.
“
Your
father will die in Jail”.
Michael
responded, “Calm the fuck down. You are behaving like a
lunatic. Stop throwing knives. Chill the fuck out man”.
Daniel’s
reply was: “It’s not a knife Michael. It’s a hollow
point.”
The
exchange deteriorated further:
“And you threw the first
knife”.
“
Cunt”.
“
Comply
or die”.
“
And
tell your retard of a father that fraud forgery and drug trafficking
prescribe in 20 years”.
“
So
take your water pistol off the table before you cop a full metal
jacket in the forehead”.
[16]
This display of filial and fraternal affection led Meyerowitz to
conclude that – whether it was meant metaphorically
or
literally – it constituted gross insubordination. (At
arbitration, the arbitrator disagreed -- he accepted that the tone
of
the messages was of threatening nature but not to the extent of
constituting a death threat. He found that it was used metaphorically
to describe how serious Daniel was about his threat to report Dr
Shevel to the HPCSA. The arbitrator disagreed that this constituted
misconduct or that the employer had proven the misconduct).
Gross
insubordination: attempting a hostile takeover
[17]
Meyerowitz found that, on the evidence at the disciplinary hearing,
it was not disputed that the employee attempted to take
control of
the business and deny Dr Shevel managerial control.
[18]
His only defence was that he was entitled to take control of the
company because of the allegations of medical malpractice
against Dr
Shevel. But he is not a medical professional and was unable to
unilaterally determine whether Dr Shevel was guilty of
medical
malpractice. That did not entitle him to attempt to wrest control of
the company away from Dr Shevel.
[19]
Meyerowitz noted that, at the hearing, the employee once again argued
about the terminology used in the charges. Wally admitted
attempting
to take control of the business he said that it was not a “hostile
takeover” within his own definition of
the term. Meyerowitz
disagreed. He believed that the attempted takeover was “hostile”
in the sense that the employee
engage in aggressive tactics and
language. For example, he told Dr Shevel to “comply or die”
and he called Dr Shevel
and Michael “a dumb arrogant bunch of
cunts”.
Gross
insubordination: preventing Dr Shevel from working.
[20]
Daniel admitted to locking Dr Shevel’s office and preventing
him from entering the clinics premises. He also admitted
to
threatening to report Dr Shevel to the HPCSA if he arrived at the
clinic without being “authorised” by Daniel. Meyerowitz
found that, by preventing Dr Shevel from running his own company, the
employee committed gross insubordination.
Gross
misconduct: inciting staff to strike
[21]
It is common cause that the staff embarked on an unprotected strike.
On 28 October 2015 the employee sent a draft “strike
letter”
to Nicole Smith (one of the clinic’s employees) in anticipation
of the strike. He told that she could change
the letter if she
wished, but that whoever agreed with the final contents should sign
it. Although the letter contained various
demands by staff members,
it actually threatened mass resignation rather than strike action.
Nevertheless, it is common cause that,
a few days later, a large
contingent of the staff members embarked on an unprotected strike.
Daniel did nothing to stop it; instead,
he told the disciplinary
hearing that he felt that the staff was doing the right thing.
Meyerowitz found that that constituted
a manifest breach of the duty
of good faith he owes to his employer and thus gross misconduct.
Gross
misconduct: theft of company property
[22]
Daniel
admitted to removing certain backup computer discs from the company
server and, in doing so, he actually broke the metal
security housing
in which the discs were kept. He said that he was entitled to do so
because he wanted to send them to the HPCSA.
Meyerowitz found that,
whatever the reason, Daniel had no right to take the law into his own
hands. Had he felt so strongly about
it, he could have approached the
High Court for an Anton Pillar order
[5]
authorising the sheriff to preserve the evidence in anticipation of
referral to the HPCSA. Absent such legal authorisation, he
simply
committed theft.
Gross
misconduct: an authorised use of emails.
[23]
When Daniel was suspended on 27 October 2015 he was prohibited from
intercepting the communications of Headache Clinic staff,
whether by
telephonic, electronic or other means of communication. On 16
November 2015 the company’s accounts manager, Ms
Martha
Musararwa, noticed that someone had accessed her email account over
the weekend and had tried to forward an email from her
account to
Daniel’s personal email address. It failed because the email
was too large. At the hearing, Daniel admitted to
accessing this
email account. He happened to know the password. He said that it
needed to do so in order to access information
regarding Dr Shevel’s
alleged medical malpractice.
[24]
Meyerowitz found that the prohibition against Daniel intercepting
emails without authorisation was reasonable. If he believed
that he
needed information he could have requested it. He did not. He hacked
into the email and intercepted communications in direct
contravention
of his terms of suspension, thus committing gross misconduct.
Sanction
[25]
The chairperson found that Daniel’s misconduct struck at the
very heart of the trust relationship between employer and
employee.
He abandoned the duty of good faith he owed to his employer. He took
the law into his own hands. He denied the employer’s
authority
and tried to take over control of the business. The trust
relationship had broken down irretrievably. The chairperson
recommended summary dismissal. The employer accepted that
recommendation.
The
award
[26]
Daniel referred an unfair dismissal dispute to the CCMA.
Unsurprisingly, conciliation failed. He referred the dispute to
arbitration.
It came before the second respondent, Commissioner
Melwyn Nash. It ran over five days. The arbitrator found that the
dismissal
was substantively and procedurally fair.
[27]
Daniel had referred two further disputes to arbitration, and they
were consolidated with the unfair dismissal dispute:
27.1
whether he was entitled to a statutory leave payment; and
27.2
whether the employer had committed an unfair labour practice, as
Daniel alleged that the employer unilaterally
cut his remuneration in
terms of employment for the period of suspension.
[28]
The arbitrator did not make a finding in respect of leave pay, but
initially did find that the employer had committed an unfair
labour
practice in terms of s 186(2)(b) of the LRA. That is because the
employer did not pay him part of his remuneration during
suspension,
comprising bond repayments made by the employer for Daniel. That
amounted to R24 061, 76. He ordered the employer to
pay Daniel that
amount. In a subsequent variation ruling, the arbitrator ruled that
the employer had not committed an unfair labour
practice. The finding
that Daniel had not been paid his full remuneration while on
suspension was an error. The bond repayments
had in fact been made.
Grounds
of review
[29]
The employee, who was initially represented by attorney Justine del
Monte and by counsel, chose to represent himself at the
hearing of
the application. He raised a number of vague and wide-ranging grounds
of review. His main bone of contention was that
he did not have the
intention to commit misconduct; he saw himself as a “managing
senior partner” rather than a “subordinate
employee”.
But the fact is that he was an employee. He referred an unfair
dismissal dispute and an unfair labour practice
dispute to the CCMA
qua
employee. And in his oral argument before court, he
conceded that he was an employee.
[30]
As an
overarching review ground, the employee submitted that the
Commissioner did not apply his mind to the evidence before him
and
that the Commissioner’s conclusion was so unreasonable that no
other arbitrator could have come to the same conclusion.
[6]
Evaluation
/ Analysis
[31]
In his oral and written submissions, the employee dealt with each
allegation of misconduct separately; as well as the unfair
labour
practice complaint and the claim for outstanding leave pay. It is as
well to deal with the reasonableness or otherwise of
the award under
each of those rubrics.
Death
threats
[32]
The arbitrator found that the employer had not proven this charge.
There is no review or cross review on this finding.
Hostile
takeover
[33]
The arbitrator found on a balance of probabilities that there was
sufficient evidence that Daniel was attempting a takeover
of the
business. He arranged the opening of a new bank account, sought
advice as to how to go about a takeover, restricted Dr Shevel’s
access to the clinic, changed the locks to his office and encouraged
workers to strike. It is clear that he wanted to side-line
Dr Shevel
completely.
[34]
The employee argued that the arbitrator ignored the evidence. That is
not the case. The arbitrator considered the evidence
and came to a
conclusion that another arbitrator could have reached on the evidence
before him.
Incitement
to strike
[35]
The arbitrator found that Daniel did not dispute this allegation;
instead he sought to justify it by saying that he was acting
in
interests of patients. The arbitrator noted that, if Daniel was
concerned about patients, he could and should have reported
Dr
Shevel’s alleged medical misconduct to the appropriate
authorities rather than taking the law into his own hands.
[36]
The arbitrator’s finding is not so unreasonable that no other
arbitrator could have come to the same conclusion.
Theft
[37]
It was common cause that Daniel took patient files and backup discs
from the clinic. Once again, he did not dispute this but
try to
justify it. The arbitrator found that, whether the clinic or a trust
(the “Temporal Business Trust”) was the
owner, the
probabilities show that Daniel had these items in his position and
that he was not authorised to have them. That is
a reasonable
conclusion and not open to review.
Accessing
emails
[38]
It is common cause that the employer prohibited Daniel from accessing
emails whilst on suspension. And it is common cause that
Daniel did
so. He committed the misconduct. The arbitrator’s finding in
this regard is not reviewable.
Sanction
[39]
Given the proven misconduct, the arbitrator found that the trust
relationship between the parties had broken down completely.
That is
as clear as daylight; one need only read the email, WhatsApp and SMS
exchanges between Daniel on the one hand and his father
and brother
on the other hand to see that that is beyond doubt. The arbitrator’s
finding that the sanction of dismissal was
a fair one is a reasonable
conclusion.
Unfair
labour practice
[40]
The arbitrator initially found that the employer did commit an unfair
labour practice. In a variation ruling, he ruled that
it did not, as
the employee had been paid his full remuneration while he was
suspended. On review, the employee argues that he
was entitled to
profit share and a credit card facility as part of his remuneration
when he was suspended.
[41]
In relation to profit share, the arbitrator found that the profit
share agreement fell outside of the employment relationship;
that it
was discretionary, and that it did not form part of his remuneration.
[42]
This conclusion was not so unreasonable that no other arbitrator
could have come to the same conclusion. It appears from the
evidence
that payment of the profit share was discretionary and dependent upon
the profitability of the clinic from time to time.
Dr Shevel’s
evidence at the arbitration was that, during the period of employment
addressed in the unfair labour practice
dispute, no bonus will profit
share was declared. Daniel could not refute this evidence.
[43]
As far as the credit card is concerned, the arbitrator also found
that it does not form part of remuneration. That is not an
unreasonable finding. Neither the profit share nor the credit card
was included in Daniel’s remuneration for tax purposes.
He
cannot have his proverbial cake and eat it.
Leave
pay
[44]
Daniel made the rather astonishing claim that, in 16 years, he had
never taken leave; this despite the common cause fact that
he went on
surfing holidays to Mozambique and Sri Lanka. He claims that this was
not leave as he had access to his email and telephone
and that he
worked while he was there.
[45]
The arbitrator found this version to be improbable. However, given
the manner in which Daniel performed his functions, the
arbitrator
noted that it was practically impossible to establish whether any
leave was due to him. He found that there was insufficient
evidence
to make any finding on this issue; and he pointed out that, if Daniel
wished to pursue this claim, he could do so through
the Department of
labour. That conclusion is not so unreasonable that no other
arbitrator could have come to the same conclusion.
Conclusion
[46]
Applying
the test in
Gold
Fields,
[7]
the arbitration award is not open to review.
[47]
The arbitrator gave the parties a full opportunity to have their say
in respect of the dispute – in fact, the arbitration
ran over
five days.
[48]
The arbitrator correctly identified the three disputes he was
required to arbitrate. He understood the nature of those disputes.
He
dealt with the substantial merits of each of the disputes. And his
ultimate decision was one that another decision-maker could
reasonably have arrived at based on the evidence.
[49]
Both parties asked for costs to follow the result. The relationship
between them has completely broken down. I see no reason
to differ.
Order
The
application for review is dismissed with costs.
_______________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person.
THIRD
RESPONDENT:
Steven
Sachs of Bagraim Sachs attorneys.
[1]
Co-ownership
is the mother of disputes.
[2]
The
Commission for Conciliation, Mediation and Arbitration (the first
respondent).
[3]
Mr
Melwyn Nash (the second respondent).
[4]
Cf
Volvo
(Southern Africa) (Pty) Ltd v Yssel
2009
(6) SA 531
(SCA).
[5]
Referring
to
Shoba
v OC Temporary Police Camp Wagendrift Dam
1995 (1) SA 1 (A).
[6]
i.e.
the test set out in
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
11 BLLR 1097
(SCA) and further articulated in
Herholdt
v Nedbank Ltd
[2013]
11 BLLR 1074
(SCA) par 25 and
Gold
Fields Mining SA Ltd (Kloof Gold Mine) v CCMA
[2014]
1 BLLR 20 (LAC).
[7]
Above
par 20.