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[2017] ZALCPE 1
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Wright Surveillance v Paulsen NO and Others (P177/14) [2017] ZALCPE 1 (31 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P177/14
In the
matter between:
WRIGHT SURVEILLANCE
Applicant
and
PAULSEN, N N.O.
First Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
Second Respondent
SATAWU OBO NOMVUSO FUNDE
Third Respondent
Heard:
27 October 2016
Delivered:
31 January 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
This is an application in terms of which
the Applicant seeks an order reviewing, setting aside and/ or
correcting the arbitration
award issued by the First Respondent
(Commissioner) under case number ECPE 5352-13 dated 4 August 2014. In
the award, the Commissioner
found that the dismissal of Ms. Nomvuso
Funde (Funde) was both substantively and procedurally unfair, and had
ordered that she
be paid compensation in the amount of R28 000.00,
which was the equivalent of eight months’ salary.
Background:
[2]
Funde was employed by the Applicant as a
CCTV Controller, having commenced her employment during May 2009. On
25 September 2013,
she received communication that her sister had
passed away and was granted permission to leave the workplace on that
day. Funde
did not report for duty thereafter, and did not
communicate with the Applicant as to her whereabouts.
[3]
It was also common cause that no formal
application for leave of absence was submitted by Funde, nor had she
communicated with anyone
from the Applicant in regards to her
absence. A telegram then sent to her on 2 October 2013, instructing
her to report at the work
premises on 7 October 2013 for the purposes
of attending a disciplinary hearing. She was charged with absenteeism
from 26 September
2013.
[4]
Funde had responded to the telegram and
attended at the premises of the Applicant on 7 October 2013. The
hearing was nevertheless
re-scheduled to 10 October 2013 due to the
non-availability of the Chairperson. The Applicant’s version is
that on 07 October
2013, Funde was merely given an opportunity to
provide an explanation in respect of her absence. Upon her failing to
do so she
was then served her with a notice of disciplinary inquiry
that was scheduled for 10 October 2013. A day before the scheduled
enquiry,
Funde’s Union, SATAWU, sent the Applicant a written
request to postpone the hearing as Funde’s representative was
not
available. SATAWU further suggested alternative dates.
[5]
On 10 October 2013, Funde did not make an
appearance and the disciplinary hearing was held in her absence. The
Applicant’s
approach in respect of SATAWU’s request was
that Funde could not be represented by a union official as the
disciplinary enquiry
was an internal matter. She was dismissed in her
absence.
The
arbitration proceedings and the award:
[6]
Aggrieved at her dismissal, Funde with the
assistance of SATAWU had then referred a dispute to the CCMA. Failing
conciliation, the
dispute was then referred for arbitration and came
before the Commissioner on 01 April 2014. The Applicant had
presented
evidence through its Administrator and Systems
Co-ordinator, Ms Tanya Jansen, which is summarized as follows;
6.1
Funde was aware of procedures for applying
for leave of absence, having done so previously after the passing of
her brother in July/August
2013, and further on an occasion when she
had to attend to a matter at the CCMA.
6.2
During her absence, Funde made no attempt
to communicate with the Applicant in respect of the reason for her
absence. The Applicant’s
policy called upon employees to
contact their supervisors during their absence, and to inform them of
the reasons thereof;
6.3
Employees are entitled to three (3) days
family responsibility leave year per circle. At the time of the
passing of her sister,
Funde had utilised all her family
responsibility leave. Nevertheless, Funde had not applied for
companionate leave in respect of
the passing of her sister, and had
she done so, the Applicant would have granted her leave of absence,
even though she had used
up all her leave credits;
6.4
On 07 October 2013 when Funde appeared at
the Applicant’s premises as per the telegram that was sent to
her, she refused to
explain the reasons for her absence, and had
simply said that the Applicant was aware of the passing of her
sister. She had said
that there was nothing for her to explain. When
she was pressed on to explain, she had simply directed Mr Pike to
read or look
out for newspaper reports in regards to the passing of
her sister.
6.5
She was then handed a notice to appear
before an internal disciplinary inquiry scheduled for 10 October
2013. The notice was also
read out to her by Mr Pike of the Applicant
in the presence of Jansen, who had emphasised that she may only be
represented by a
fellow employee, as external representation was not
allowed;
[7]
Funde’s evidence is summarised as
follows:
7.1
Having been granted permission on 25
September 2013, she had called her supervisor one, Wendy on 27
September 2013 and informed
her that she was sick and suffered from
depression, and that she would approach the Applicant to apply for
leave of absence;
7.2
On 30 September 2013 she went to the
premises of the Applicant with the intention of completing leave
forms and was advised that
the offices were closed. The Applicant
shared its premises with a company called Vukela Security, and she
had approached her brother
in-law who works for Vukela and asked him
for a leave forms. She was however told that the two companies did
not share the same
leave forms;
7.3
The burial of her sister took place on 05
October 2013. Having received a telegram, she had attended at the
Applicant’s premises
on 07 October 2013, and Mr Pike had
informed him that the scheduled hearing was postponed due to the
non-availability of
the Chairperson. This was after Pike had also
threatened her with dismissal. The matter was therefore re-scheduled
for 10 October
2013. She contended that she was not aware that she
had been dismissed, as her understanding was that she was still to be
informed
of a disciplinary hearing at a future time;
7.4
She had referred to a doctor’s
certificate, which she testified was brought to the Applicant’s
attention confirming
that she was diagnosed with depression. She also
pointed out that the death of her sister and that of her brother
earlier on occurred
within a space of a month and this had put strain
on her. She testified that when she informed the Applicant of her
illness, she
was referred to the Aspen’s nursing sister, and
was in turn referred to a Psychologist.
[8]
In the award, the Commissioner had regard
to the provisions of section 192 of the LRA and Item 7 of Schedule 8
(Code of Good Practice).
The Commissioner accepted that following the
passing of her sister, Funde was sent home on 25 September 2013, and
was pre-occupied
with her sister’s funeral arrangements in view
of the burial having taken place on 5 October 2013. The Commissioner
accepted
that Funde had not completed the required leave forms for
the period that she was absent. However, at the time that the
telegram
was sent to her informing her of the hearing scheduled for 7
October 2013, the burial had not taken place.
[9]
The Commissioner was of the view that the
Applicant should rather have called upon Funde to establish her
whereabouts, as it was
aware of the passing of her sister. He further
concluded that Funde had a reasonable and adequate excuse for her
absence, and that
the chairperson of the enquiry did not properly
take into account her personal circumstances prior to imposing a
sanction of dismissal.
[10]
The Commissioner further pointed out that
the Chairperson of the enquiry erred in making a finding that Funde
was absent for a month
when in fact she was only absent between
26 September 2013 and Sunday of 6 October 2013. He further had regard
to Funde’s
previous bereavement in respect of the loss of his
brother in August 2013, the fact that she was treated for a stress
related condition,
and concluded that the second bereavement had
psychological effects on her, and that the Applicant should have been
more sensitive
towards her personal circumstances.
[11]
In regards to the procedural fairness of
the dismissal, the Commissioner stated that in view of the
disciplinary enquiry having
been scheduled a day after Funde’s
sister was buried, it should have been obvious to the Applicant
that she was not
in a state of readiness for the hearing on 10
October 2013. The Commissioner’s view was that Funde should
have been granted
some indulgence, and that the hearing should have
been postponed to afford her an opportunity to state her case. To
that end, the
dismissal according to the Commissioner was
procedurally unfair. In considering relief, the Commissioner took
into account Funde’s
personal circumstances, her health
condition and prospects of securing future employment, and came to
the conclusion that eight
months’ salary was appropriate.
The
grounds of review, the submissions and evaluation:
[12]
The
review test as laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
and restated in several decisions of the Labour Appeal Court
[2]
and the Supreme Court of Appeal
[3]
is whether the decision reached by the commissioner is one that a
reasonable decision-maker could not reach. The Labour Appeal
Court in
Goldfields
summarised the review test as follows;
“
In
short: A review court must ascertain whether the arbitrator
considered the principal issue before him/her, evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decision he or she arrived at”
[4]
[13]
In this case, the Applicant attacked the
award on a variety of grounds. The essence of the attack is that in
the light of the evidence
and the facts presented at the arbitration
proceedings, the award was wrong in fact and law, was irregularly
arrived at, and could
not be justifiable on an objective basis,
either in law and fact. By way of preliminary argument, it was
submitted that to the
extent that Funde’s case was premised on
the contention that she was dismissed because of having pursued a
grievance against
Pike, then that dispute pertained to an
automatically unfair dismissal within the meaning of section 187 (1)
(d) of the LRA, and
therefore the Commissioner had no jurisdiction to
determine the dispute. To the extent that the Commissioner had
nevertheless taken
scant regard of what Funde’s case was, it
was contended that the award as issued was
ultra
vires
and a nullity.
[14]
It is
trite that Commissioners are obliged to determine what the real
dispute between the parties is
[5]
.
It is expected that due to the less than formal nature of arbitration
proceedings, and in the absence of pleadings, parties, especially
dismissed employees tend to ‘throw’ everything at
Commissioners in an attempt to demonstrate that they were treated
unfairly. The purposes and objectives of the LRA, and in particular,
the quest for expeditious resolution of disputes will be defeated
if
during arbitration proceedings, Commissioners were to gratuitously
halt proceedings every time some issue, other than what had
been
referred for determination, or agreed to during a process of
narrowing down of issues, is raised during evidence. Commissioners
obviously ought to be satisfied that they have the requisite
jurisdiction to determine disputes before them. At the same time
however, Commissioners cannot at the say-so of the respondent party,
willy-nilly conclude that they lack jurisdiction midstream
arbitration proceedings, without complete regard to the facts and
evidence presented. Thus, in cases where the employee challenges
the
fairness of a dismissal, his or her case ought to be distinguished
from other periphery or secondary issues that might be raised
during
the evidence.
[15]
This court is inundated with matters that
Commissioners have refused to determine on the basis of contrived, if
not spurious and
flimsy jurisdictional points raised at arbitration
proceedings. In this case, Funde as represented by SATAWU had
referred an unfair
dismissal dispute, alleging that the dismissal
related to misconduct, and had challenged the procedural and
substantive fairness
thereof. The issue surrounding alleged
victimization by Pike on the basis of a grievance lodged against him
by Funde was clearly
a peripheral issue, and the Commissioner was
correct in ignoring it in the determination of the real dispute, or
the real reason
that led to the dismissal. The Applicant’s
contention that the Commissioner lacked jurisdiction simply based on
secondary
issues raised during arbitration proceedings is not
supported by the overall evidence that was led in regards to the
reasons for
the dismissal.
[16]
The main issue for consideration however is
whether the Commissioner’s award can be construed as one that a
reasonable decision
maker could not have arrived at in the light of
the facts and evidence presented. It was common cause that there was
bereavement
in Funde’s family, and that on the first date upon
receiving the news, she was granted permission to leave the
workplace.
It was further common cause that there was no
communication between Funde and the Applicant after she was granted
permission to
leave on 25 September 2013 until 07 October 2013 after
a telegram was despatched to her informing her of the intended
disciplinary
enquiry. In my view, the fact that Funde was granted
permission to leave on the first day did not entitle her to take as
many as
11 days off duty without complying with the basic
requirements of informing the Applicant as to how long she was going
to be absent
from work.
[17]
The fact that the Applicant was aware of
her bereavement was not sufficient for her to assume that that it
knew how long she would
be absent from work. At most, the onus was
upon her to at least inform the Applicant how long she was expected
to be off duty,
and this did not require of her to present herself at
the premises to complete the necessary forms. A simple phone call
would have
sufficed. This is so in that the Applicant is entitled to
organise its own operations to accommodate her absence. The
Applicant’s
disciplinary code provided that absence without a
reasonable explanation for longer than three days constituted a
dismissible offence.
To that end, in the light of Funde being aware
of the applicable rules and policies in regards to absenteeism, and
further in the
light of her failure to comply with same, there was
cause for the Applicant to charge her with misconduct in respect of
her absence.
[18]
In concluding that the dismissal was unfair
however, it is apparent that the Commissioner was influenced by a
variety of factors
which were not placed before him. In essence, the
Commissioner conjured up reasons for Funde’s conduct without a
factual
basis therefor. The first indicator in this regard is that
the Commissioner inferred, without any evidence being placed before
him, that the burial of Funde’s sister did not take place in
the first weekend of her death as the family was not in a position
to
arrange for that funeral to be held that week.
[19]
The Commissioner committed a gross
irregularity in regards to the issue of onus. Despite it not being
disputed that Funde had received
the telegram on 2 October 2013, the
Commissioner nevertheless shifted the onus upon the Applicant to have
called Funde to establish
her whereabouts. In my view, having
received the telegram, and even before then, it was up to Funde to
call the Applicant to inform
it of her whereabouts, the reasons she
had not reported for duty, and any further details in regards to
funeral arrangements that
may have necessitated that she absent
herself for prolonged periods.
[20]
The Commissioner committed a gross
irregularity in concluding that Funde had a reasonable and adequate
excuse for her absence related
to her sister’s pending funeral,
when this fact was not at any stage prior to the disciplinary enquiry
made known to the
Applicant. The essence of misconduct cases related
to absenteeism is that the onus is upon the employee to inform the
employer
of the reasons for absence before or during the period of
absence, and not to simply do so at the disciplinary enquiry or at
arbitration
proceedings. In this case, it was common cause that no
explanation was forthcoming from Funde for the 11 days of her
absence.
[21]
Other than the above, the Commissioner also
committed a gross irregularity in concluding that the chairperson of
the enquiry did
not properly consider the circumstances of Funde when
arriving at the decision to dismiss. This was so in that the enquiry
was
held in Funde’ absence, and the chairperson could not have
known what those circumstances were. All that the Applicant knew
at
that stage was that Funde’s sister had passed away.
[22]
Furthermore, the Commissioner concluded
that since Funde was attended to by a clinical psychologist on 2
October 2013 for a stress
related condition, the second bereavement
had affected her psychologically. In this regard, it is inexplicable
that the Commissioner
would have arrived at that conclusion without
evidence having been led in that respect by the clinical
psychologist. The Commissioner
therefore irregularly used presumptive
reasoning and unsubstantiated speculation, to justify his conclusions
when there was in
fact, proven yet unexplained misconduct.
[23]
The
issue that remains is whether Funde’s dismissal was appropriate
in the circumstances. It is trite Commissioners are obliged
to
consider a variety of factors in determining whether a sanction of
dismissal was fair or not
[6]
.
These
inter
alia
include
the importance of security of employment; the importance of the rule
that was breached; the reasons for establishing the
rule including
its reasonableness; the harm caused by the employee’s conduct;
the impact that it had on the trust relationship;
the reason why the
employer imposed the sanction of dismissal; the basis of the
employee’s challenge to the dismissal; whether
additional
training and instruction may result in the employee not repeating the
misconduct; the effect of dismissal on the employee;
and the
employee’s service record. It is further trite that a sanction
of dismissal should be reserved for gross forms of
misconduct. Thus,
the fact that the Applicant’s disciplinary code called for a
dismissal for the misconduct in question did
not automatically imply
that a dismissal ought to have followed.
[24]
The Commissioner, despite having made a
finding that Funde had not committed any misconduct nevertheless
concluded that a written
warning would have sufficed. This as
correctly pointed out on behalf of the Applicant was contradictory,
as a finding that there
was no misconduct cannot be followed by one
which suggest a lesser sanction in the same breath.
[25]
In line with the factors to be considered
in determining the appropriateness of the sanction as postulated in
Sidumo
as
above, it is a fact in this case that the Applicant was clearly aware
of Funde’s bereavement. It is accepted that Funde
had failed to
comply with the rules related to absenteeism, and that she had not
proffered any explanation in that regard. Be that
as it may, and in
the light of the Applicant’s knowledge of Funde’s
bereavement, a dismissal in my view was indeed
harsh, and a final
written warning would have been appropriate in the circumstances.
[26]
In regards to the procedural fairness of
the dismissal, again the Commissioner allowed his maudlin sympathy
for Funde to distract
him from his task. There was no basis for
him to conclude that it should have been obvious to the Applicant
that Funde was
not in a state of readiness to proceed with the
disciplinary enquiry on 10 October 2013. Funde was aware of those
proceedings and
if indeed she was not in a position to proceed,
nothing prevented her from attending and requesting a postponement.
It is trite
that an employee that choses to ignore disciplinary
proceedings waives his or her rights to state his or her case. To the
extent
that Funde was made aware of the scheduled disciplinary
hearing, and chose not to attend it, she did so at her peril. The
Commissioner’s
conclusions therefore that that the dismissal
was procedurally unfair cannot be said to be those of a reasonable
decision maker.
[27]
In the light of the conclusions that a
sanction of dismissal was not appropriate, the remaining issue to be
considered is whether
the relief granted was appropriate. In
accordance with the provisions of section 194 (1) of the LRA,
compensation awarded
must be just and
equitable in all the circumstances. In this case, and as correctly
pointed out on behalf of the Applicant, even
if there was unfairness
on its part, compensation equivalent to eight months’ salary
cannot be construed to be just and equitable
given all the
circumstances of this case and the conclusions reached. The
Commissioner based the amount on
inter
alia
, the fact that the dismissal was
procedurally unfair when this was clearly not the case. The only
unfairness as already concluded
related to the appropriateness of the
sanction, and in my view, compensation equal to three months’
salary would have been
deemed to be just and equitable in the
circumstances.
Further having had regard to
the requirements of law and fairness, it is my view that a cost order
is not warranted in this case.
Accordingly, the following order is
made;
[28]
In the premises, I make the following
order:
Order:
1.
The arbitration award issued by the First Respondent under case
number ECPE5352-13 is reviewed, set aside and substituted with
the
following order;
a)
‘
The dismissal of Ms. Nomvuzo Funde
was procedurally fair, and substantively unfair only in regards to
the issue of sanction.
b)
The Applicant, Wight Surveillance is
ordered to pay to Ms. Funde, compensation in the amount of three
months’ salary calculated
at her rate of pay as at 10 October
2013’
2.
There is no order as to costs
_________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For the
Applicant:
Ms Thandi
Moyo of Snyman Attorneys
For the
Third Respondent: Ms. Ellen Van Staden
Instructed
by:
Legal Aid South Africa: Port Elizabeth Justice
Centre
[1]
(2007) 28
ILJ 2405 (CC).
[2]
See Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR
20
(LAC); Head, Department of Education v Mofokeng and other [2015]
1 BLLR 50 (LAC)
[3]
Herholdt v Nedbank Ltd (COSATU as amicus curiae)
[2012]
11 BLLR 1074 (SCA)
[4]
At para
[16]
[5]
See
CUSA v
Tao Ying Industries and Others
(2008) 29
ILJ 2461 (CC) at para 66 where it was held that;
‘
A
commissioner must, as the LRA requires, 'deal with the
substantial merits of the dispute'. This can only be done by
ascertaining
the real dispute between the parties. In deciding what
the real dispute between the parties is, a commissioner is not
necessarily
bound by what the legal representatives say the dispute
is. The labels that parties attach to a dispute cannot change its
underlying
nature. A commissioner is required to take all the
facts into consideration including the description of the nature of
the
dispute, the outcome requested by the union and the evidence
presented during the arbitration. What must be borne in mind
is
that there is no provision for pleadings in the arbitration process
which helps to define disputes in civil litigation. Indeed,
the
material that a commissioner will have prior to a hearing will
consist of standard forms which record the nature of the dispute
and
the desired outcome. The informal nature of the arbitration process
permits a commissioner to determine what the real dispute
between
the parties is on a consideration of all the facts. The dispute
between the parties may only emerge once all the evidence
is in.’
[6]
Sidumo at
para 78