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[2018] ZALCJHB 83
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Midas Group Komatipoort v NUMSA and Others (JR1585/14) [2018] ZALCJHB 83 (14 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR 1585 / 14
In
the matter between:
MIDAS GROUP
KOMATIPOORT
Applicant
and
NUMSA
First
Respondent
ZODWA MAHLANGU
Second Respondent
ESTHER MANGWANA
Third
Respondent
THOMAS NTIMBANA N.O. (AS
ARBITRATOR)
Fourth
Respondent
MOTOR INDUSTRY BARGAINING
COUNCIL
Fifth Respondent
Heard:
22 June 2017
Delivered:
14 February 2018
Summary:
Bargaining
council arbitration proceedings – Test for review relating to
jurisdiction and merits of award considered –
where review
concerning issue of jurisdiction the test of rationality and
reasonableness does not apply and award considered
de
novo
on
the basis of being right or wrong – where merits of award
considered the appropriate review test that of the existence
of an
irregularity and reasonable outcome
Dispute
– arbitrator obliged to determine real issue in dispute –
consideration of nature of dispute – real issue
in dispute
considered – assessment and determination of evidence –
real issue in dispute based on dismissal for misconduct
/ poor
performance – dismissal has nothing to do with union membership
Dismissal
– distinction between misconduct and poor work performance
considered – entirely different concepts with different
requirements – same facts and circumstances cannot be dismissal
for misconduct and poor performance
Dismissal
– real basis for dismissal considered – dismissal in
essence one for incapacity (poor performance) –
dismissal for
misconduct improper, incompetent and unfair – employer should
have applied provisions in Schedule 8 relating
to poor performance
Dismissal
– even if merits of misconduct dismissal considered –
employees had already been disciplined for misconduct
and final
written warning issued – cannot dismiss for the same misconduct
– no evidence of further misconduct after
final written warning
Dismissal
– breach of cell phone policy – no proper evidence of
misconduct – misconduct not proven
Bargaining
council arbitration proceedings – no case for review made out –
award upheld – review application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This
matter concerns an application by the applicant to review and set
aside an arbitration award made by the fourth respondent
in his
capacity as an arbitrator of the Motor Industry Bargaining
Council
(the
fifth respondent). In terms of this award, the fourth
respondent found that the dismissal of the second and third
respondents
by the applicant was substantively unfair and determined
that they be reinstated with retrospective effect to their date of
dismissal
with back pay equivalent to 6(six) months’ salary.
The application has been brought in terms of Section 145 of the
Labour Relations Act
[1]
(‘the LRA’).
[2]
The
second and third respondents had been dismissed by the applicant on
27 December 2013. They were members of the first respondent
at
the time of their dismissal. As a result, the first respondent
pursued their dismissal as an unfair dismissal dispute
to the fifth
respondent as the applicable bargaining council. This dispute then
came before the fourth respondent for arbitration
on
16 May and 3 July
2014. Following completion of the arbitration proceedings, and in the
aforesaid arbitration award, which was dated
3
July 2014
,
the fourth respondent found in favour of the second and third
respondent
s,
leading to the current review application.
[3]
The
award was handed down by the fourth respondent on 14 July 2014.
The applicant served and filed its review application
on 8 August
2014, which is thus within the time limit prescribed by Section 145
of the LRA, and the review application is accordingly
properly before
Court for determination. I will now proceed in deciding the
applicant’s review application, commencing with
first setting
out the relevant facts for consideration.
The
relevant facts
[4]
The
second and third respondents were both employed by the applicant as
cleaners. The second respondent commenced employment
in 2009,
and the third respondent in 2010. They were both dismissed on
27 December 2013 on a variety of what purported to
be misconduct
charges.
[5]
The
difficulties in this matter appear to have arisen in 2013, when
Monica Van Jaarsveld (‘Van Jaarsveld’) became employed
by
the applicant as manager. Van Jaarsveld clearly had a problem
where it came to the manner in which the second and third
respondent
discharged their cleaning duties. According to the applicant,
the second and third respondent were dismissed as
a result of their
conduct and failures, over the whole period from September to
November 2013.
[6]
Van
Jaarsveld was dissatisfied with the manner of cleaning of the
premises by the second and third respondents. She complained
that the premises was dirty and customers complained. According
to her, she had several discussions with the second and third
respondents on how they should properly clean the premises and
actually demonstrated to them how to do it.
[7]
Another
problem Van Jaarsveld had was that the second and third respondents
were continuously talking on their cellular telephones
instead of
doing their work. According to the applicant, it had a policy
prohibiting the use of cellular telephones during
working hours that
applied in the workplace, which was issued to the second and third
respondents, and which they contravened.
[8]
On 25
November 2013, the second and third respondents were notified to
attend a disciplinary hearing to be held on 27 November 2013
on three
charges of misconduct. The first charge was unsatisfactory work
performance, in that they did not complete tasks to acceptable
standards as from September to November 2013. The second charge
was disobedience in failing to carry out lawful work instructions
as
from September to November 2013. The third charge was
disobedience in failing to comply with the cell phone policy from
September to November 2013. The disciplinary hearing then took
place on 27 November 2013, pursuant to which the second and
third
respondents were found guilty of all three charges, and were
dismissed.
[9]
As
far as the second and third respondents were concerned, they
committed no misconduct. They properly carried out their duties
in terms of their job descriptions. There were never given
specific instructions in the period from September to November
2013
which they did not comply with. As far as the use of cell
phones were concerned, they only used their cell phones during
their
breaks and lunch, and in any event, they were never given a policy
indicating that they were not permitted to use their cell
phones at
work. They also contended that they also did not receive a fair
hearing.
[10]
The
fourth respondent had to decide between these two conflicting cases.
He accepted that the dismissal of the second and
third respondents
was procedurally fair. In the absence of a cross review, this
finding stands, and need not be considered
further.
[11]
Where
it came to deciding substantive fairness, the fourth respondent held
that the second and third respondents had been working
for the
applicant for three and four years respectively, without difficulty,
until such time as Van Jaarsveld joined the applicant.
The
fourth respondent further held that there was no evidence of any
specific instructions being given to the second and third
respondents
during the period between September and November 2013, which they
refused to comply with. According to the fourth
respondent,
there was also no corroborating evidence of the premises being dirty
and improperly cleaned, as alleged by the applicant.
As to the cell
phone policy charge, the fourth respondent held that there was no
proper evidence that such policy was issued to
the second and third
respondents. The fourth respondent concluded that the dismissal
of the second and third respondent was
therefore without reason, and
thus substantively unfair.
[12]
A
final factual consideration remains. The fourth respondent
considered that the second and third respondents had been dismissed
for ulterior purposes. In his award, the fourth respondent
recorded that he could not ‘ignore’ that the charges
against the second and third respondents were ‘influenced’
by their union membership, and their problems started when
they
joined the union.
The
grounds of review
[13]
The
applicant has raised a number of review grounds upon which its
challenge of the above conclusions arrived at by the fourth
respondent is based.
[14]
The
applicant contends that the fourth respondent relied on the fact that
the second and third respondent’s dismissal related
to their
membership of the first respondent as trade union, and as such, the
dismissal would be automatically unfair in terms of
Section 187 of
the LRA. This meant that the fourth respondent lacked
jurisdiction to arbitrate the dispute, and the award
is accordingly a
nullity.
[15]
According
to the applicant, the fourth respondent in any event misconstrued the
evidence before him and failed to properly consider
the same.
The basis for this contention is that the fourth respondent did not
consider that the incidents giving rise to
the dismissal of the
second and third respondent took place from September to November
2013, and thus they were dismissed for misconduct
and disobedience
over a period of time. The second and third respondents knew
how to do the work but did not want to do it
properly, and failed to
comply with work related instructions, but the fourth respondent
failed to consider all the testimony presented
on behalf of the
applicant establishing this.
[16]
A
further review ground relates to the fourth respondent failing to
consider all the evidence relating to the prior progressive
discipline applied to the second and third respondents. This
included a number of warnings for disobedience and unsatisfactory
work performance in July, September and November 2013.
[17]
Finally,
the applicant takes issue with several of the specific conclusions
arrived at by the fourth respondent, contending that
these are not
the findings of a reasonable decision maker. These findings
include the lack of pictures being presented of
the unsatisfactory
work, that the cell phone policy was not presented to the second and
third respondents because they did not
sign it whilst another
employee (one Dreyer) did, that the applicant did not have cameras at
the premises as was the case with
other premises, and that the
applicant had pre-determined the dismissals of the second and third
respondents.
The
test for review
[18]
The
applicant’s review application, considering the above grounds
of review, is thus based on two main components. The
first is a
challenge of the jurisdiction of the fifth respondent. The
second is a case challenging the finding of substantive
unfairness,
on the merits thereof. Each of these components have distinct
tests of review.
[19]
Firstly,
and where it comes to the review relating to the jurisdiction of the
fifth respondent, and consequently also the fourth
respondent, to
decide this matter, the review test as enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
does
not apply. As said in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
:
‘…
.
Nothing
said in Sidumo means that the CCMA’s arbitration award can no
longer be reviewed on the grounds, for example, that
the CCMA had no
jurisdiction in a matter or any of the other grounds specified in
section 145 of the Act.
If
the CCMA had no jurisdiction in a matter, the question of the
reasonableness of its decision would not arise
…. ’ (emphasis added)
[20]
Where
the jurisdiction of a bargaining council such as the fifth respondent
is at stake in a review application, the Labour Court
is entitled to,
if not obliged, to determine the issue of jurisdiction of its own
accord, by deciding
de
novo
whether the determination by the arbitrator on jurisdiction is right
or wrong.
[4]
Specifically, and in
Trio
Glass t/a The Glass Group v Molapo NO and Others
[5]
the Court said:
‘
The
Labour Court thus, in what can be labelled a 'jurisdictional' review
of CCMA proceedings, is in fact entitled, if not obliged,
to
determine the issue of jurisdiction of its own accord. In doing so,
the Labour Court is not limited only to the accepted test
of review,
but can in fact determine the issue de novo in order to decide
whether the determination by the commissioner is
right or
wrong.’
[21]
Thus,
in the case of a wrong decision by a bargaining council arbitrator
where it comes to the issue of jurisdiction, the decision
of the
arbitrator would be reviewable on objectively justiciable
grounds.
[6]
It does not matter what the reasoning of the arbitrator may have been
and it is up to the Court to, from an objective perspective,
decide
whether the requisite jurisdiction exists. In
Universal
Church of the Kingdom of God v Myeni and Others
[7]
the Court said:
‘…
the
value judgment of the commissioner in a jurisdictional ruling has no
legal consequence and that it is only a ruling for convenience.
…
If, from an objective perspective, such jurisdictional facts did not
exist, the CCMA did not possess the requisite jurisdiction
to
entertain the dispute, regardless of what the commissioner may have
determined.
’
[22]
Turning
next to the test for review where it comes to the review challenge in
respect of the finding of substantive unfairness of
the fourth
respondent, in other words a review on the merits, this was dealt
with in
Sidumo,
[8]
where the Court
said that the question to be asked was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...
’
.
[23]
This
means, in short, that even if it can be said that an arbitrator acted
irregularly, erred, or failed in making his or her award,
these
shortcomings would only lead to a successful review if it can also be
said that it resulted in an unreasonable outcome. Thus,
the review
applicant must first show that there is a failure or error on the
part of the arbitrator. If this cannot be shown
to exist, that
is the end of the matter. Next, and if this failure or error is
shown to exist, the review applicant must
then show that the outcome
arrived at by the arbitrator was unreasonable. If the outcome arrived
at is nonetheless reasonable,
despite the error or failure, that is
equally the end of the review application. In short, in order
for the review to succeed,
the error or failure must affect the
reasonableness of the outcome to the extent of rendering it
unreasonable.
In
Herholdt
v Nedbank Ltd and Another
[9]
the Court said:
‘…
.
A result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.’
[24]
As to
the application of the reasonableness consideration as articulated in
Herholdt
,
the LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[10]
said:
‘…
.
in
a case such as the present, where a gross irregularity in the
proceedings is alleged, the enquiry is not confined to whether
the
arbitrator misconceived the nature of the proceedings, but extends to
whether the result was unreasonable, or put another way,
whether the
decision that the arbitrator arrived at is one that falls in a band
of decisions a reasonable decision maker could
come to on the
available material.’
[25]
Accordingly,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome the arbitrator arrived at can nonetheless be sustained as a
reasonable outcome, even if it may be for
different reasons or on
different grounds.
[11]
This necessitates a consideration by the review court of the entire
record of the proceedings before the arbitrator, as well as
the
issues raised by the parties before the arbitrator. In the end,
it would only be if the outcome arrived at by the arbitrator
cannot
be sustained on any grounds, based on that material, and the
irregularity, failure or error concerned is the only basis
to sustain
the outcome the arbitrator arrived at, the review application would
succeed.
[12]
In
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
[13]
it was held:
‘…
.
the
reviewing court must consider the totality of evidence with a view to
determining whether the result is capable of justification.
Unless
the evidence viewed as a whole causes the result to be unreasonable,
errors of fact and the like are of no consequence and
do not serve as
a basis for a review.
’
[26]
Against
the above principles and tests, I will now proceed to consider the
applicant’s application to review and set aside
the arbitration
award of the fourth respondent, in respect of both components of the
review application.
Evaluation
[27]
The
first part of the applicant’s review application can be swiftly
disposed of. There was no case of a
dismissal based
on union membership pursued by the first, second and third
respondents to the bargaining council at the outset.
This is
apparent from the conciliation referral document which was contained
in the bundle of documents before the fourth respondent.
The
referral related to an ordinary unfair dismissal, for the want of a
better description, and was based on a challenge that the
second and
third respondents committed no misconduct, that they were not guilty
of poor performance, and that the procedures as
prescribed by the LRA
were not followed. There is no mention of another basis of
dismissal in the referral.
[28]
But
it does not just end there. A consideration of the transcript
of the arbitration proceedings makes it apparent that no
such case
was raised by the first respondent’s union representative when
conducting the arbitration on behalf of the first,
second and third
respondents. No such case was put to any of the applicant’s
witnesses in cross examination.
The second respondent, who
testified in the arbitration, made no mention of it. It simply
was never in issue.
[29]
The
only reference to dismissal being based on some or other union
affiliation occurred during the last closing remarks by the first
respondent’s union representative in making his closing
argument. This reference was in my view nothing more than a
gratuitous remark made by the representative to in some way bolster
the closing argument, and was not based on any kind of evidence.
It was in any event clear from the closing argument presented, as a
whole, that the first, second and third respondents were challenging
the substantive and procedural fairness of the dismissal of the
second and third respondents, based on poor performance and
misconduct.
[30]
It is
true that the fourth respondent made reference in his award to
dismissal of the second and third respondents, based on their
union
membership, being a possible consideration. But in my view all
the fourth respondent was doing was articulating his
own
speculation. All that was before him to support such a
conclusion was the singular remarks in the closing address of
the
first respondent’s union representative. There was
however, as said, no evidence to support such a conclusion and
no
such case was ever actually made out.
[31]
In
the end, in any event, there is always a duty on the fourth
respondent as arbitrator to ascertain the real nature of the issue
in
dispute. In
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another,
[14]
it was held as follows:
‘
It
is the duty of a court to ascertain the true nature of the dispute
between the parties. In ascertaining the real dispute a court
must
look at the substance of the dispute and not at the form in which it
is presented. The label given to a dispute by a party
is not
necessarily conclusive. The true nature of the dispute must be
distilled from the history of the dispute, as reflected in
the
communications between the parties and between the parties and the
Commission for Conciliation, Mediation and Arbitration (CCMA),
before
and after referral of such dispute. These would include referral
documents, the certificate of outcome and all relevant
communications. …’
[32]
In ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman No & others
[15]
The Court applied the above dictum in
Bader
Bop
and held:
‘
I
accept that an arbitrator has the duty to determine the true nature
of the case before the arbitrator. So much is clear. …’
[33]
In
CUSA
v Tao Ying Metal Industries and Others
[16]
the Court gave the following guidance in order to decide what the
real dispute between the parties would be in a particular case:
‘…
a
commissioner is not necessarily bound by what the legal
representatives say the dispute is. The labels that the 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....
The dispute between the parties may only emerge once
all the evidence is in.
'
[34]
Considering
all the background circumstances, and the nature of the dispute as it
emerged from all the evidence, I have little doubt
that the real
issue in dispute before the fourth respondent for determination was
always that of an unfair dismissal dispute based
on misconduct and
poor performance. There is accordingly no substance in the
applicant’s jurisdictional challenge. There
was nothing wrong
in the fourth respondent entertaining the dispute that was before
him, which he was clearly competent to do.
Therefore, the applicant’s
ground of review based on the lack of jurisdiction of the fourth and
fifth respondent must fail.
[35]
Moving
on to the next part of the applicant’s review case, the first
question is whether the fourth respondent’s finding
of
substantive unfairness is in any way irregular or outside the bounds
of a reasonable outcome. For the reasons to follow,
the fourth
respondent’s conclusion that the dismissal of the second and
third respondents was substantively unfair is in
my view unassailable
on review.
[36]
The
fourth respondent’s award contains a cryptic summary of the
essential facts. He finds that prior to Van Jaarsveld becoming
employed, the only problem there was with the second and third
respondents was a written warning for not taking a staggered lunch
time dating back to 2011. He further records that the hearing
notification given to the second and third respondents on 25
November
2013 applied to ‘misconducts’ over the period from
September to November 2013. These findings are fully supported
by the
evidence on record, and are in fact in line with the testimony of the
applicant’s own witnesses.
[37]
The
fourth respondent then finds that there was no evidence presented
where the second and third respondents were given a specific
instruction on a specific day that was not complied with. As to
the poor performance issue, the fourth respondent finds that
there
must be proper supporting evidence of this, and not mere allegations.
The fourth respondent further doubted the cell phone
policy
prohibiting the use of cell phones during working hours was ever
presented to the second and third respondents. The fourth
respondent
however specifically referred to the fact that on 22 November 2013
the second and third respondents were issued with
final written
warnings and then charged two days later for the very same
misconduct, covering in essence the same period, as there
was no
evidence of any further specific misconduct between 22 and 25
November 2013. For all of these reasons, the fourth respondent
concluded that
‘
the
allegations against the applicants (referring to the second and third
respondents) were unfounded’
,
and the applicant was out to get rid of the second and third
respondents.
[38]
Before
even considering the sustainability of these factual findings of the
fourth respondent, I am compelled to point to a fundamental
difficulty in the case of the applicant in bringing about the
dismissal of the second and third respondents. This difficulty lies
in the fact that the applicant has failed to distinguish between
misconduct in the form of carrying out instructions (insubordination)
and poor work performance. This lack of proper distinction is evident
from the charge sheet itself. What the applicant did was
to ‘charge’
the second and third respondents for both misconduct
(insubordination) and poor performance based on the
exact same
circumstances and facts. In short, what the applicant did was to say
that because the second and third respondent did
not clean as they
were instructed and required to do for the period from September to
November 2015, they were guilty of both misconduct
in the form of
insubordination, and poor performance. This is an impermissible
approach, and improperly blurs the necessary
distinction that must
exist between misconduct and incapacity in the form of poor work
performance.
[39]
The
distinction between misconduct and poor work performance was dealt
with in
ZA
One
(Pty)
Ltd t/a Naartjie Clothing v Goldman No and Others
,
[17]
where the Court said:
‘…
what
is then the difference then between negligence (misconduct) and poor
work performance?
The
distinction can be found in the concept of wilfulness or
deliberateness. In the case of negligence, it must be present, whilst
in the case of poor performance, it must be absent. …
’
In
casu
,
the misconduct component of the charge did not relate to negligence,
but insubordination. However, and similar to negligence,
insubordination has a central component of wilful and deliberate
conduct on the part of the employee.
[18]
In
ZA
One
,
the Court then added the following:
[19]
‘
In
my view, the distinction between poor performance and misconduct
(negligence) can be established by the asking of two simple
questions
when it has been established that an employee indeed failed. The
first question is 'Did the employee try but could not?'
and the
second question is 'Could the employee do it, but did not?' If the
first question is answered in the affirmative, then
it has to be poor
performance, because an employee that honestly (for the want of a
better word) seeks to achieve what is expected
of him or her but is
unable to do so is incapacitated and would not behave wilfully or
indifferently or fail to apply the necessary
care. If the second
question is answered in the affirmative, then it has to be
misconduct, as this would be a situation where the
employee is fully
able to do what is required not to fail, and such failure could
therefore only be because of indifference or
wilfulness or a failure
to take care. …
’
[40]
The
Court in
ZA
One
also referred with approval
[20]
to the following extract from the reported CCMA arbitration award in
Thompson
v Samaki Beach Lodge
[21]
:
‘…
.
There is an extremely fine line between misconduct and incapacity (or
operational requirements) in some instances and that line
is not
easily drawn in many instances. As proper categorization of a dispute
will determine what course of action will be taken
against an
employee, there is no doubt that proper categorization is extremely
important. A proper distinction should be made between
a misconduct
enquiry and a poor work performance: incapacity enquiry as the latter
does not require any investigation into the
issue of culpability. …’
[41]
In
the end, one can do little better than to refer to the following
ratio
in
Gold
Fields Mining
[22]
:
‘…
Poor
work performance and misconduct are by definition two distinct and
diverse concepts.
In
drawing a distinction between poor work performance and misconduct,
Professor B Jordaan in his article 'Poor Work Performance
(Incapacity) vs Misconduct' stated the following:
'Incapacity
relating to poor performance is prevalent where an employee has
persistently failed to meet certain performance standards
despite the
employer offering training, guidance, assistance and evaluation. In
such a case the employee would potentially lack
the skills, knowledge
or competencies to meet the employer's standards. In this case the
problem lies with the employee's "aptitude":
although
willing to do what is required, s/he is
unable
to because of
some factor linked to the employee that s/he has little or no control
over.
A
dismissal for misconduct is based on the employee's fault i.e.
intentional or negligent noncompliance to company rules or standards.
A degree of blameworthiness is therefore ascribed to the employee. In
respect of misconduct, the employer must prove that the employee
contravened a rule, was aware of or could reasonably be aware of the
rule, that the rule was valid and there was consistency in
the
application of the rule (substantive fairness). The employer is
required to give the employee an opportunity to respond to
the
allegations (procedural fairness). This may take the form of a
disciplinary hearing or an interview for lesser transgressions.'
The
requirements to show that the dismissal for misconduct was fair are
different to what has to be shown in the case of dismissal
for
incapacity.
’
[42]
It is
clear from all that I have set out above that the concepts of a
dismissal for misconduct on the one hand, and dismissal for
poor work
performance (as a species of incapacity) are incompatible. This
means, in short, that an employee cannot be ‘charged’
for
poor performance, subjected to disciplinary process, and then
dismissed applying misconduct considerations. In the case
of
poor performance, the process has other objectives, which can broadly
be described as being to identify the poor performance,
establish
what is required to resolve it, providing the employee with
assistance to resolve it, and then allowing the employee
a reasonable
opportunity to achieve what is required. It is simply not the
case of an employee being ‘guilty’
and a sanction
imposed.
[43]
The
applicant’s approach in this matter was thus fundamentally
flawed. It could not ‘charge’ the second and third
respondents with poor performance, and then also insubordination
(misconduct) based on the exact same set of facts and causes of
complaint. It is either the one or the other. So, either
the second and third respondent received instructions which
they in a
culpable and blameworthy fashion failed or refused to carry out, or
they were not capable or unable to perform the work
they were
instructed to do. It cannot be both.
[44]
When
properly considered, what were the second and third respondents
dismissed for in the end? Answering this question entails
a
proper conspectus of the evidence as a whole. Dealing firstly with
the testimony of Henry Bosch (‘Bosch’), the HR
Manager,
the reality is that his testimony did not lend much support towards
the applicant establishing its case. For the
most part, Bosch,
who was also the person that presided over the disciplinary hearing
of the second and third respondents, could
only testify about what he
had been told in the disciplinary hearing and did not have any
personal knowledge about any of the events
that gave rise to the
charges against the second and third respondents. He could not
testify about whether the second and third
respondent indeed failed
to discharge their cleaning duties, in what respects they failed, or
failed to comply with instructions
in this respect. He also did
not witness the second and third respondents using their cell phones
whilst cleaning.
[45]
However,
and considering that he presided over the disciplinary hearing, and
thus made the finding that the second and third respondents
should be
dismissed, Bosch was pertinently asked under cross examination what
the second and third respondents were dismissed for.
He
answered:
‘
Disobeying
instructions, instructions relating to the standard of work.
Disobeying instructions relating to the cell phone.
And not
doing the work to standard.
’
He
further testified that the instructions concerned were given by Van
Jaarsveld to the second and third respondents, and she was
the one
that assessed their performance.
[46]
Bosch
also acted as the representative of the applicant in the arbitration.
Having first testified himself, he then called as his
first witness
the HR administrator, Angel Nhlabhathi (‘Nhlabhathi’).
I have some difficulty with the evidence
of Nhlabhathi, specifically
relating to the manner in which it was put on record. Virtually the
entire evidence in chief elicited
from Nhlabhathi was done by way of
leading questions to which only a ‘yes’ or ‘no’
answer was required.
This persisted to such an extent that the first
respondent’s representative, who was a lay person, interjected
to object
to this approach. But Bosch was undeterred. He simply
continued soliciting evidence by way blatantly leading questions.
Even under
re-examination, this approach persisted, to the extent
that on one occasion Bosch actually put an answer to Nhlabhathi to
just
confirm. The testimony of Nhlabhathi thus has very little value.
But even if her evidence is considered, and as a general proposition,
all Nhlabhathi did was to regurgitate what was contained in
documentary evidence, minutes and warning documents, with minimal
personal knowledge of the allegations against the second and third
respondents relating to the insubordination and poor performance
charges. Thus, the testimony of Nhlabhathi also does very little to
prove the applicant’s case.
[47]
Some
of what Nhlabhathi said under cross examination does bear mention.
She confirmed that as from 2008/2009 to 2013 and until
Van Jaarsveld
started working for the applicant, there was no problem with the
performance of the second and third respondents.
In addition,
she conceded that she was based at Malelane and hardly worked with
the second and third respondents and could not
really comment about
the veracity of the charges against them.
[48]
The
only witness with actual knowledge of the subject matter of the
charges in the disciplinary proceedings was Van Jaarsveld. At
the
onset of her testimony, Bosch asked her: ‘
…
can
you tell us what was the problem you had with these two ladies …
in relation to their offences or their work or their
obedience or
whatever that led to the hearing on 27 November ...
’
.
She answered: ‘
Unsatisfactory
work performance. They were given written warnings until it came to
the final written warning.
’
[49]
In
substantiation of this statement, Van Jaarsveld testified that when
she took over in July 2013, she found that ‘
the
place was dirty
’
.
According to her, she then asked the second and third respondents to
properly clean the premises. She testified that she
demonstrated to
the second and third respondents how to clean, and bought new
material and equipment for them to use. But
as far as Van
Jaarsveld is concerned, these interventions did not achieve the
required result, and the premises were still not
properly cleaned.
It was then, as Van Jaarsveld said, that she
‘…
issued
them with warnings so that they start doing their jobs...
’
.
Finally, and when these warnings were not successful, Van Jaarsveld
testified that she decided to take the matter to a disciplinary
hearing.
[50]
I am
again compelled to be critical about the manner in which Bosch
solicited evidence from Van Jaarsveld. Her evidence in chief
was
permeated with leading questions by Bosch to her. In fact, and on at
least two occasions, Bosch conducted what was in essence
cross
examination of Van Jaarsveld, whilst leading evidence in chief, thus
compelling her to give the answers he wanted. This kind
of conduct
substantially detracts from the value of that evidence.
[51]
Turning
to the cross examination of Van Jaarsveld, she made a number of
important concessions. She conceded that this was
in reality
not a case of the second and third respondents not carrying out
instructions to clean, but rather that they did not
obey the
instructions because they did not clean properly. In simple
terms, this is therefore not a case where the second
and third
respondents were given instructions to clean and refused to comply or
did nothing in a wilful and deliberate manner.
In simple terms,
they cleaned, but did not do it to the satisfaction of Van Jaarsveld.
[52]
What
is clear from the testimony of Van Jaarsveld is that the gravamen of
the complaints against the second and third respondents
had little to
do with misconduct, and was at its core a poor performance issue.
This meant it needed to be dealt with on that basis,
and Item 9
[23]
of Schedule 8 to the LRA, as read with Items 8(2) to (4)
[24]
,
therefore found application. As said in
Xstrata
SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
on behalf of Masha and Others
[25]
:
‘ …
When
an employee is dismissed for poor work performance, the arbitrator
must examine whether the employee was trained to perform
the
functions that he or she was tasked to do; whether such training was
adequate; and whether the employee may benefit from further
training
or counselling. …’
[53]
It
then follows that the insurmountable difficulty with any poor
performance case sought to be advanced by the applicant, is that
the
provisions of Items 8 and Item 9 of Schedule 8, as referred to above,
were never complied with, for the reasons to follow.
[54]
Firstly,
and in the applicant presenting its case,
there
was inadequate
evidence of proper evaluation, training, guidance and counselling of
the second and third respondents. The
high water mark of the
evidence was that if the second and third respondent did not perform
as required, they were given written
warnings. That is not what it
envisaged by Items 8 and 9 of Schedule 8. There was no continuous
attempt to try and remedy their
poor performance, being rationale
behind the process in Schedule 8. Comparable is the following
dictum from the judgment
in
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
[26]
:
‘
However,
the commissioner found the first respondent guilty of poor work
performance as described in charge
(b)
without giving consideration to any of the factors outlined in the
code. There is no indication from the evidence on the record
that the
appellant had put in place certain performance standards, and that
the first respondent was aware of them. … There
is,
furthermore, no indication on the record that the appellant had
followed an adequate evaluation procedure to determine whether
the
first respondent failed to meet the required standards. …
’
[55]
Secondly,
proper evidence as to the manner in which the second and third
respondents failed to meet the required performance stands
was
severely lacking. Details were sparse, and unsubstantiated. The
testimony of Van Jaarsveld was vague, and lacking in sufficient
specificity. The fourth respondent was very much alive to this
problem, making specific reference to it in his award. In short,
poor
performance was not established on the evidence.
[56]
Because
the real reason behind the dismissal of the second and third
respondents was that of poor performance, the lack of any proper
compliance with Items 8 and 9 of Schedule 8 must mean the end of the
matter for the applicant. The dismissal of the second and
third
respondent cannot be justified, and would be substantively unfair.
As said in
Palluci
:
[27]
‘
it
was impermissible for the employer to dismiss the first respondent on
grounds of incapacity/poor work performance alone, as it
sought to
do, without first
(a)
conducting an investigation to establish the E reasons for the
unsatisfactory performance ,
(b)
giving the employee the right to be heard;
(c)
giving the employee appropriate evaluation, instruction, training,
guidance and counselling, and
(d)
after a reasonable period of time for improvement, the employee
continued to perform unsatisfactorily. … Nor did the
appellant implement a system of progressive or corrective discipline
to assist her in improving her performance …
‘
[57]
However,
and even if this matter is decided on the basis of misconduct, then
the applicant nonetheless faces yet another difficulty.
As said, the
misconduct charge was for insubordination. But there was no evidence
of any specific instruction that was given, at
a specific time, to
the second and third respondents and which instruction was disobeyed
or deliberately not complied with. Instead,
it was a general
instruction to clean, spanning the whole period from September to
November 2013. And therein lies the conundrum,
because on 22
November 2013 the second and third respondents were issued with a
final written warning for ‘failure to carry
out work to the
required standard, without reasonable cause’,
‘inefficiency/unsatisfactory work performance’
and ‘not
following direct orders from management’. This is
virtually identical to the two principal charges in
the charge sheet
dated 25 November 2013. It thus follows that the second and third
respondents were already disciplined for the
same misconduct up to 22
November 2013, and could therefore not be competently charged for
this misconduct again on 25 November
2013. The fourth respondent was
equally much alive to this difficulty, also making specific reference
to the same in his award.
[58]
If
the applicant wanted to rely on misconduct to justify the dismissal
of the second and third respondents on the insubordination
charge
referred to, following on the final written warning issued on 22
November 2013, it needed to prove the existence of such
kind of
further misconduct after 22 November and before 25 November 2013.
Simply put, the applicant cannot rely on misconduct
for that which
the second and third respondents had already been disciplined.
The applicant presented no evidence of further
misconduct for which
the second and third respondents had not been disciplined already.
[59]
In
any event, and in order to succeed with substantiating an
insubordination charge, the applicant was required to show the
following,
as enunciated in
Motor
Industry Staff Association and Another v Silverton Spraypainters and
Panelbeaters (Pty) Ltd and Others
[28]
:
‘
It
is trite that an employee is guilty of insubordination if the
employee concerned wilfully refuses to comply with a lawful and
reasonable instruction issued by the employer. It is also well
settled that where the insubordination was gross, in that it was
persistent, deliberate and public, a sanction of dismissal would
normally be justified. …’
What
is patently absent in this case is any evidence of a specific
instruction being given to be carried out, and that there was
a
wilful and deliberate refusal / failure to comply with that
instruction given. As Van Jaarsveld, in effect, said herself
that it is not that the second and third respondents did not clean,
it is that they did not clean properly as she wanted them to.
This
may be a performance issue, but it cannot be insubordination.
[60]
This
leaves only the charge of the second and third respondents using
their cell phones during working hours. The third misconduct
charge
in the charge sheet of 25 November 2013 related to this. Much
was made in the arbitration proceedings about a policy
in this regard
being issued to the second and third respondents, with the fourth
respondent concluding that there was no proper
evidence that such a
policy had indeed been issued to them. But in my view very little
turns on whether any such policy was issued
to the second and third
respondents or not. Even accepting that it was, there is simply
insufficient evidence to establish a transgression.
Other than vague
and general statements of the second and third respondents being seen
talking on their cell phones whilst cleaning,
the necessary
particularity to identify actual instances of misconduct is absent.
To illustrate – the testimony is that the
second respondent was
seen talking on her cell phone whilst cleaning, but there is no
reference as to when this allegedly happened
with the required
specifics to prove a charge.
[61]
Overall
considered, the applicant failed to prove that the second and third
respondents committed misconduct. The fourth respondent’s
conclusion to the effect that the applicant failed to establish that
the second and third respondents committed misconduct is properly
supported by the evidence, and is certainly a reasonable outcome
based on such evidence. This outcome must thus be sustained
on
review, and applicant’s review application must fail on this
basis as well.
[62]
In
sum, the applicant dismissed the second and third respondent for poor
performance, but in doing so, failed to properly establish
the
existence of same in evidence and did not comply with Items 8 and 9
of Schedule 8. It follows that their dismissal cannot
be
justified, and would be substantively unfair. Even if the
misconduct the second and third respondents had been charged
with is
considered, this misconduct was in the end never adequately proven by
the applicant, who had the onus to do so. This
all means that
the outcome arrived at by the fourth respondent that the dismissal of
the second and third respondent was substantively
unfair resorts well
within the bands of a reasonable outcome, and is unassailable on
review. The applicant’s review
application thus falls to
be dismissed.
[63]
This
then only leaves the question of costs. In terms of Section
162(1) and (2) of the LRA, I have a wide discretion where
it comes to
the issue of costs. I do not believe the applicant was
mala
fide
in pursing this matter, and cannot agree with the fourth respondent
where it comes to the motives ascribed to the applicant (which
would
have justified a costs order). The applicant simply got it
completely wrong in dealing with the second and third respondents.
A costs order was also not sought against the applicant by the first
to third respondents. In all these circumstances, the appropriate
order where it comes to costs, is to make no order as to costs.
Order
[64]
In
the premises, I make the following order:
1.
The
applicant’s review application is dismissed.
2.
There
is no order as to costs.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Adv S Hassim
Instructed
by:
Yusuf Nagdee Attorneys
For the First, Second and Third
Respondents:
Mr S Mthiyane – Union Official
[1]
Act 66 of 1995.
[2]
(2007) 28 ILJ 2405
(CC).
[3]
(2008) 29 ILJ 964
(LAC) at para 101.
[4]
See
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others
(2012)
33
ILJ
363 (LC) at para 23;
Hickman
v Tsatsimpe NO and Others
(2012)
33
ILJ
1179 (LC) at para 10;
Protect
a Partner (Pty) Ltd v Machaba-Abiodun and Others
(2013)
34
ILJ
392 (LC) at paras 5–6;
Gubevu
Security Group (Pty) Ltd v Ruggiero NO and Others Gubevu Security
Group (Pty) Ltd v Ruggiero NO and Others
(2012)
33
ILJ
1171 (LC) at para 14;
Workforce
Group (Pty) Ltd v CCMA and Others
(2012)
33
ILJ
738
(LC)
at para 2;
Stars
Away International Airlines (Pty) Ltd t/a Stars Away Aviation v Thee
NO and Others
(2013)
34
ILJ
1272
(LC) at para 21.
[5]
(2013) 34
ILJ
2662 (LC) at para 22. See also
Kukard
v GKD Delkor (Pty) Ltd
(2015)
36 ILJ 640 (LAC) at para 12;
Phaka
and Others v Bracks NO and Others
(2015) 36 ILJ 1541 (LAC) at para 31.
[6]
See
SA
Commercial Catering and Allied Workers Union v Speciality Stores Ltd
(1998)
19
ILJ
557 (LAC)
at
para 24;
Zeuna-Starker
Bop (Pty) Ltd v National Union of Metalworkers of SA
(1999)
20 ILJ 108 (LAC) at para 6.
[7]
(2015) 36 ILJ 2832
(LAC) at para 27. See also
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others
(2008)
29 ILJ 2218
(LAC)
at para 40.
[8]
(
supra
)
at para
110.
See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at
para 134;
Fidelity
Cash Management Service
(
supra
)
at para 96.
[9]
(2013) 34
ILJ
2795 (SCA)
at
para 25.
[10]
(2014) 35 ILJ 943
(LAC) at para 14. The
ratio
in
Gold
Fields
was followed by the LAC itself in
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[11]
See
Fidelity
Cash Management
(
supra
)
at para 102.
[12]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016) 37 ILJ 116
(LAC) at para 32.
[13]
(2015) 36 ILJ 1453
(LAC) at para 12.
[14]
(2003) 24 ILJ 305
(CC) at para.52.
[15]
(2013) 34 ILJ 2347
(LC) at para 57
[16]
(2008) 29
ILJ
2461 (CC)
at
para 66. See also
Xstrata
SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
on behalf of Masha and Others
(2016)
37 ILJ 2313 (LAC) at para 9;
Coin
Security Group (Pty) Ltd v Adams and Others
(2000)
21
ILJ
925 (LAC) at para 16.
[17]
(2013)
34 ILJ 2347 (LC)
at
para 75
[18]
See
A
Mauchle (Pty) Ltd t/a Precision Tools v National Union of
Metalworkers of SA and Others
(1995)
16 ILJ 349 (LAC) at 359E-F;
Blitz
Printers
v Commission for Conciliation, Mediation and Arbitration and Others
[2015] JOL 33126
(LC) at para 60.
[19]
Id at para 78
[20]
Id at para 76.
See also
Transnet
Freight Rail v Transnet Bargaining Council and Others
(2011)
32
ILJ
1766 (LC)
at
para 44 – 45
[21]
(2009) 30 ILJ 1396
(CCMA) at 1417D – J.
[22]
(
supra
)
at paras 22 – 24.
[23]
Item 9 reads: ‘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’.
[24]
Item 8 reads: ‘(2)
…
an
employee should not be dismissed for unsatisfactory performance
unless the employer has- (a) given the employee appropriate
evaluation, instruction, training, guidance or counselling; and
(b) after a reasonable period of time for improvement, the
employee continues to perform unsatisfactorily. (3) The procedure
leading to dismissal should include an investigation to establish
the reasons for the unsatisfactory performance and the employer
should consider other ways, short of dismissal, to remedy the
matter, (4) In the process, the employee should have the right to be
heard and to be assisted by a trade union representative
or a fellow
employee’.
[25]
(2016) 37 ILJ 2313
(LAC) at para 9. See also
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
(2015) 36 ILJ 1511 (LAC) at para 48;
Gold
Fields Mining
(
supra
)
at para 25.
[26]
(2015) 36 ILJ 1511
(LAC) at para 49.
[27]
Id at para 51.
[28]
(2013) 34 ILJ 1440
(LAC) at para 31.