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[2018] ZALCJHB 65
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Cashbuild (Pty) Ltd v Poto NO and Others (JR691/15) [2018] ZALCJHB 65 (16 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
no: JR 691/15
In
the matter between:
CASHBUILD
(PTY) LTD
Applicant
And
POTO,
P S N.O. (cited in his capacity as Commissioner of the Commission
for Conciliation, Mediation & Arbitration)
THE
COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION
NKOMO,
STEVEN
First
Respondent
Second
Respondent
Third
Respondent
Heard:
07 February 2018
Delivered:
16 February 2018
Summary:
Review in terms of s145 of
Labour Relations Act 66 of 1995
–
Decision that dismissal inappropriate reasonable in light of
circumstances surrounding infraction and employee’s
personal
circumstances – Parity principle not demanding rigid and
indiscriminate application of dismissal where cause exists
for
differentiation – Application dismissed.
JUDGMENT
LEKALE,
AJ
BACKGROUND
AND INTRODUCTION
[1]
The third respondent was employed by the applicant as a sales
coordinator from 05 February 2005 to 05 November 2014 when he
was
dismissed following a disciplinary inquiry into allegations of gross
insubordination levelled against him.
[2]
The third respondent felt aggrieved by the dismissal and referred a
dispute concerning alleged unfair dismissal to the second
respondent
for resolution. When the dispute remained unresolved after an
unsuccessful attempt at conciliation, the third respondent
requested
arbitration. The dispute, thereafter, served before the first
respondent for arbitration and he eventually issued an
award on 20
March 2015 finding the dismissal procedural fair but substantively
unfair on the basis that dismissal was not appropriate
as a sanction.
[3]
The applicant now approaches this court in terms of section 145 of
the Labour Relations Act 66 of 1995 (“the LRA”)
for an
order reviewing and setting aside the arbitration award. The
application is opposed by the third respondent who effectively
maintains that the award is unassailable insofar as the first
respondent considered the evidence properly before him and came to
a
conclusion thereon which is reasonable with regard to appropriateness
of dismissal as a sanction.
ISSUE
FOR DETERMINATION
[4]
The parties are in dispute over whether or not the decision of the
first respondent on the appropriateness of dismissal as a
sanction is
the one that a reasonable decision-maker could not have reached on
available evidence.
[5]
In the event of this question being decided in the affirmative, I am
in the main requested by the applicant party to set aside
the award
and to replace it with an order declaring the third respondent’s
dismissal substantively fair.
[6]
In the alternative to paragraph [5] above I am requested by the
applicant party to set the award aside and to remit the matter
back
to the second respondent for arbitration
de novo
before a
commissioner other than the first respondent.
DEPOSITIONS
AND CONTENTIONS FOR THE APPLICANT
[7]
The applicant’s branch manager to whom the third respondent
reported deposes,
inter alia
, to the effect that the applicant
had been experiencing difficulties with the latter’s attitude
towards her as the branch
manager. On or about 21 October 2014 the
applicant’s customer, who had previously purchased roof tiles
from the branch, wanted
to buy additional tiles. The applicant had,
by then, changed the supplier who provided the initial tiles bought
by the customer
and, as such, the additional tiles could not match
the initial ones. The customer was, thus, required to return the
initial tiles
so that all the tiles could be sourced from the new
supplier. The third respondent wanted to collect the tiles form the
customer
and she, as the manager, declined informing him that the
applicant only delivers and does not collect in such circumstances.
She
specifically instructed the third respondent not to have the
tiles collected. The third respondent, however, instructed a truck
which was supposed to make a third delivery for that day
viz.
21 October 2014 to collect the tiles after the second delivery. The
truck, thus, did not return to the store for the third delivery
and
only returned the following morning full of the tiles from the
customer. When she enquired from the third respondent after
the
reason for acting contrary to the instructions, the latter pointed
out that the customer was insulting him and he, as such,
decided to
act. He, further, adopted the attitude that he was entitled to go
over her head where it came to customers and that
he could ignore
her.
[8]
The third respondent was, thereafter, summoned to a disciplinary
hearing where he was found guilty of gross insubordination
and was,
eventually, dismissed. At the disciplinary hearing the third
respondent was defiant, pleaded not guilty and maintained
that he did
nothing wrong. At the relevant time the third respondent had a final
written warning for gross negligence. According
to the applicant’s
Disciplinary Code and Procedures dismissal is a competent sanction
for gross insubordination. At the arbitration
hearing before the
first respondent the third respondent challenged the dismissal on
substantive grounds only. Procedural fairness
was not in dispute. The
first respondent was biased in favour of the third respondent insofar
as he did not allow the applicant
legal representation at the hearing
and, further, refused to accord applicant’s legal
representative observer status.
[9]
In argument on the papers and before the court Ms Moyo, for the
applicant, submits,
inter alia
, to the effect that the third
respondent showed no remorse at the arbitration hearing and the
dismissal was in line with the applicant’s
Disciplinary Code
and Procedures which the applicant applies consistently. In her view,
the circumstances under which the infraction
was committed and the
third respondent’s personal circumstances do not justify a
departure from the relevant prescribed sanction.
DEPOSITIONS
AND CONTENTIONS FOR THE THIRD RESPONDENT
[10]
The third respondent deposes,
inter alia
, to the effect that
the customer involved had previously bought roof tiles supplied by
Marley from the applicant and when she came
in October 2014 to buy
additional tiles the supplier had been changed. The second batch of
tiles the customer bought in October
2014 were delivered to her but
she phoned him later in the day to complain that the new tiles were
different from the initial ones.
Indeed, the new tiles that were
supplied by the new supplier being Kulu differ from those supplied by
Marley in that their connections
are round while those from Marley
are square. He promised the customer to talk to the manager to see
how he could collect those
tiles. The Marley tiles were, thereafter,
sourced from the applicant’s Tweefontein store at his instance.
The manager, however,
indicated that they could not collect the Kulu
tiles from the customer until they had cleared the yard as there was
limited space.
On 21 October 2014 there were six deliveries to be
made by the store and four of which were to be made in Moloto while
the last
two were to be made at Kwa-Mhlanga and Ezakheni. The first
delivery of four loads were made at Moloto and when the truck
returned
around 14h00 to load the Kwa-Mhlanga and Ezakheni deliveries
he told the crew that after the last delivery, they should return
with the tiles from the relevant customer as she was staying at the
village neighbouring Kwa-Mhlanga and Ezakheni. He, thus, did
not
dispatch an empty truck to collect the relevant tiles but
just asked the crew that was going in the customer’s
direction
to collect the tiles on their way back.
[11]
On 22 October 2014 he was surprised when the manager asked him who
gave him permission to collect the tiles as he initially
understood
her as having said that the tiles could only be collected once the
yard was cleared out. The yard got cleaned before
the tiles were
collected.
[12]
Mr Mthimunye submits for and on behalf of the third respondent,
inter
alia,
that the question in the instant matter is whether the
first respondent, as the commissioner, committed misconduct or a
gross irregularity
or exceeded his powers within the contemplation of
section 145 of the LRA. Although the third respondent disagrees with
the finding
of the first respondent on the disciplinary verdict, he
accepts that the first respondent applied his mind to the facts
before
him. The first respondent, further, considered all available
evidence when he came to the conclusion that dismissal was
inappropriate
as a sanction. The factors considered are reasonable
and justify the decision reached in this regard. The fact of the
final written
warning for gross negligence was not before the
arbitrator when the impugned award was made. And is, as such, not
apparent
ex facie
the record Even if it were before the first
respondent at the relevant time his decision would still be
reasonable because of the
material difference between the mental
elements of the two misconducts
.
Insubordination requires
intention or
dolus
while negligence requires
culpa
.
APPLICABLE
LEGAL POSITON
[13]
The test in the instant matter
is whether or not the impugned award is not the one that could
reasonably be made on the evidence
properly before the first
respondent in relation to the issue he was seized with.
[1]
[14]
Anyone considering the fairness
of the dismissal, such as a CCMA Commissioner, is obliged to take any
relevant Code of Good Practice
issued in terms of the LRA into
account.
[2]
[15]
The parity principle is applied
with caution by the courts and does not demand rigid application of
the same disciplinary sanction
to all employees guilty of the same or
similar infractions where there are sound reasons for distinguishing
between such employees.
Each case is decided on its own facts and
circumstances.
[3]
[16]
In deciding on an appropriate
sanction the presiding officer is required to strike a balance
between the interests of the employer
and those of the accused
employee and to have regard to the nature and/or seriousness of the
misconduct involved. “
Generally
it is not appropriate to dismiss an employee for a first offence
except if the misconduct is serious and is of such gravity
that it
makes continued employment relationship intolerable.”
[4]
APPLICATION
OF LEGAL POSITION TO THE FACTS AND FINDINGS
[17]
In deciding whether or not dismissal was appropriate as a sanction
the first respondent was obliged to strike a balance between
the
applicant employer’s interests and those of the third
respondent by,
inter alia,
looking at the gravity of the
infraction involved, the circumstances surrounding its commission and
the third respondent’s
personal circumstances.
[18]
The parties are at variance on the circumstances surrounding the
commission of the infraction with the applicant effectively
deposing,
through its branch manager, that the roof tiles collected were those
purchased earlier from Marley while the third respondent’s
version is that the collected tiles were those supplied by Kulu that
were purchased from him during October 2014.
[19]
The parties are, further, in dispute over the third respondent’s
conduct and attitude towards his manager at all times
material to the
infraction with the applicant effectively maintaining that the third
respondent was insolent while the latter,
on his part, contends, in
effect, that he was surprised when the branch manager asked him who
told him to collect the tiles from
the customer when the applicant’s
policy was to deliver and not collect in such circumstances. His view
is he only acted
in the best interests of the applicant’s
business at all times.
[20]
A perusal of the impugned award in this regard reveals that the first
respondent accepted the third respondent’s version
on the facts
surrounding the collection of the tiles from the customer and,
further, found that he was, in fact, at all times trying
to further
the applicant’s business.
[21]
A look at the recorded evidence confirms the third respondent’s
version with regard to the circumstances surrounding
the commission
of the relevant misconduct. In this regard it is worth noting that
the record reflects that indeed the tiles that
were collected were
those supplied by Kulu and not Marley. The applicant’s policy,
therefore, allowed for collection of such
tiles insofar as it was a
wrong delivery. In this regard it is worth noting that the parties
were in agreement before the first
respondent that collection was
competent in the case of wrong delivery. I may, further,
mention
en passant
that it is possible that the instruction
was misunderstood by the third respondent insofar as it is clear from
the store manager’s
evidence that there was no room to
accommodate the tiles sourced from the Tweefontein branch and it was,
therefore, necessary to
clean the yard in order to create space. The
third respondent could have thought that the manager was referring to
the tiles from
the customer when she said that the tiles could only
be collected after the area has been cleared up when she was, in
fact, referring
to those sourced from Tweefontein branch that they
were supposed to collect themselves.
[22]
The first respondent appears to have appreciated the issue before him
insofar as he considered the gravity of the misconduct,
the interests
of the applicant and the personal circumstances of the third
respondent when he decided that dismissal was not appropriate
as a
sanction. In this regard it is worth noting that he was alive to the
fact, that the applicant, as the employer, was interested
in
maintaining and upholding discipline at the work place while, at the
same time, furthering its business. The aforegoing, in
my view, is
evident from the sanction he awarded to substitute dismissal which
serves to express his disapproval of the third respondent’s
conduct.
[23]
The circumstances surrounding the commission of the infraction which
were underpinned by the desire, on the part of the third
respondent,
to satisfy a customer and to further the applicant’s business
as well as the third respondent’s personal
circumstances,
inclusive of his length of service with the applicant, reasonably
demanded a departure from dismissal as an applicable
ultimate
permissible sanction. In this regard, it should be recalled that
disciplinary codes serve as a guide and the officer presiding
over
disciplinary hearings retains the discretion as far as the sanction
is concerned insofar as he is obliged to take the gravity
of the
misconduct and the accused employee’s personal circumstances
into account when determining an appropriate sanction.
The parity
principle does not demand an automatic, rigid and indiscriminate
application of dismissal simply because it is a sanction
which is
consistently applied for the same or similar infractions.
Differentiation is, in law and equity, permissible were cause,
such
as different set of personal circumstances, exists.
[24]
[24] I am, further, not persuaded by the recorded evidence that the
first respondent was biased in favour of the third respondent.
There
exists no evidence whatsoever to sustain the contention on the part
of the applicant to the effect that he ignored relevant
evidence and
considered irrelevant one all with a view to finding in favour of the
third respondent. He was in law and equity entitled
to decide on
legal representation regard being had to the provisions of Rule 25 of
the Rules for Conduct of Proceedings before
The CCMA.
[25]
In conclusion I am satisfied that the decision of the first
respondent on the appropriateness of dismissal as a sanction is
a
reasonable one that could be reached on the evidence properly before
him.
Order
[26]
In the result the application is dismissed with costs.
____________________
LJ
Lekale
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Ms T Moyo (Snyman Attorneys)
For
the Respondent: Mr B Mthimunye (Baphasile Mthimunye-Attorneys)
[1]
See generally
Sidumo
& Another v Rustenburg
Platinum
Mines Ltd & Others
[2007] 12 BLLR 1097
(CC) and
Herholdt
v Nedbank Ltd
[2013] 11 BLLR 1074 (SCA).
[2]
See section 188(2) of the LRA.
[3]
Absa Bank Ltd v Naidu &
Others
[2015] 1 BLLR 1
(LAC).
[4]
See item 3(4) of
the Code of Good Practice in schedule 8 of the LRA.