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[2018] ZALCJHB 87
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Solidarity obo Oelofse v Armscor (SOC) Ltd and Others (JR2004/15) [2018] ZALCJHB 87 (21 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: JR 2004 / 15
In
the matter between:
SOLIDARITY obo K
OELOFSE
Applicant
and
ARMSCOR (SOC) LTD
First Respondent
COMMISSIONER W KRUGER N.O.
Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITR
ATION
Third
Respondent
Heard:
8 June 2017
Delivered:
21 February 2018
Summary:
CCMA arbitration proceedings – Review of proceedings, decisions
and awards of arbitrators
– Test for review – Section 145
of LRA – application of review test set out –
determinations of arbitrator
compared with common cause evidence and
legal principle – arbitrator’s decision regular and
sustainable – award
upheld
Unfair labour practice –
benefits – meaning of benefits – performance bonus
subject to a discretion constitutes
benefit
Unfair labour practice –
exercise of discretion by employer – consideration of
principles as to when such discretion
would be fair – exercise
of discretion fair
Unfair labour practice –
double jeopardy – whether prior disciplinary followed by
decision not to pay performance bonus
constitutes double jeopardy –
principles considered – discipline and performance bonus two
different issues –
double jeopardy does not apply
Unfair labour practice –
inconsistency in bonus payment – principles considered –
no inconsistency shown or case
made out
Review application – no case
made out to successfully challenge discretion of employer –
decision not to pay employee
a performance bonus not unfair –
review application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
What
is before me to decide in this instance is a review application by
the applicants to review and set aside an arbitration award
made by
the second respondent in his capacity as an arbitrator of the
Commission for Conciliation, Mediation and Arbitration (‘the
third respondent’). This application has been brought in terms
of Section 145 of the Labour Relations Act
[1]
(‘the LRA’).
[2]
This
matter has as its origin an unfair labour practice dispute referred
by the applicants to the third respondent, which dispute
concerned
the refusal of the first respondent to pay the individual applicant,
Karen Oelofse (‘Oelofse’) a performance
bonus. This
dispute came before the second respondent as arbitrator, on 7
September 2015, for arbitration. In an arbitration
award dated
15 September 2015, the second respondent concluded that the
applicants’ claim for the payment of a performance
bonus to
Oelofse, be dismissed. It is this determination of the second
respondent that gave rise to the current review application.
[3]
The
applicants having received the arbitration award on 17 September
2015, the review application was then filed on 3 November 2015,
and
was thus brought within the 6 (six) weeks’ time limit under
Section 145
[2]
of the LRA. The review application is accordingly properly
before this Court for determination. I will commence deciding
this
review application by first summarizing the relevant background
facts.
The
relevant background
[4]
The
basic facts to be considered in deciding this matter were common
cause in the arbitration. Oelofse was sworn in by the
second
respondent to testify, and she in essence repeated all that the facts
that were contained in a pre-trial minute that had
been concluded
between the parties. Oelofse also introduced the agreed bundles
of documents into evidence. Both
parties submitted
argument. From this chosen method of conducting the
arbitration, I will now distil the common cause facts.
[5]
Oelofse
commenced employment with the first respondent on 1 July 1990, and
occupied the position of chief contract officer: soldier
support at
the time when this dispute arose. In this capacity, she dealt
directly with suppliers to the first respondent.
[6]
The
first respondent had a policy in place in terms of which employees,
that qualified for this based on a number of prescribed
criteria,
could earn a performance bonus. This policy was called the
Remuneration Practice (number A-PRAC-2025), and was
adopted on 14
June 2010. This policy will be referred to in this
judgment as ‘the remuneration practice’.
[7]
The
qualifying criteria where it came to the payment of a performance
bonus to employees is found in clause 15.6.3.7 of the remuneration
practice. In summary, these include, as relevant to this case,
an individual performance score of at least 90%, the employee
must be
in employment on the last day of the financial year for which the
payment is calculated, the employee must have more than
6(six)
months’ service, and the employee must not have been absent
from work for longer than 6(six) months. The remuneration
practice,
in clause 3.13, also specifically provides that ‘
Performance
remuneration is an annual non-guaranteed, discretionary payment to
employees based on the attainment of organizational,
departmental,
divisional / team and individual goals …
’
.
[8]
The
remuneration practice however specifically incorporates and refers to
what is called the Performance Management Practice (number
A-PRAC-2023), hereinafter referred to as ‘the performance
practice’, which was adopted on 13 November 2013. In
clause 5.16.3.6(e) of the remuneration practice, it is recorded that
‘
Individual
performance will be measured as described in the Armscor Performance
Management Practice …
’
.
In turn, clause 3.2.15 of the performance practice provides that
‘
Performance
is defined as the attainment of specific results/outputs through
specific actions, while being consistent with the Armscor
values and
objectives’
.
[9]
In
2014, Oelofse was subjected to disciplinary proceedings by the first
respondent. She was charged on 3 July 2014 with four
individual
charges relating to a failure declare gifts received from suppliers
and unauthorized use of company resources.
It was alleged that
she undertook a trip to Victoria Falls and Livingstone in October
2010, the expenses of which were paid for
by Impie Truck Centre, a
contractor to the first respondent. It was further alleged that
since October 2010, she had been
administering bookings made for
accommodation at Piccolo Self-Catering Unit, using the first
respondent’s e-mail facilities
and doing so during working
hours.
[10]
The
disciplinary proceedings against Oelofse were convened before an
independent chairperson from TOKISO, and took place over a
number of
days in January 2015 and ultimately concluded on 2 February 2015.
The chairperson found Oelofse guilty of the charges
relating to
non-declaration of the trip paid for by the contractor and
administering her private accommodation. She was thus
found
guilty of part of charge 1, charge 2 and charge 4. After
considering the issue of an appropriate sanction, the chairperson
in
a written finding dated 19 February 2015, recommended that a final
written warning be issued to Oelofse. This final written
warning was then issued 23 February 2015, valid for 12 months.
[11]
Against
the above background, the issue of Oelofse’s performance bonus
for the 2013 / 2014 financial year came up for consideration.
Where it came to the qualifying criteria for being paid this bonus,
she obtained a performance rating of 107.7%, which was thus
in excess
of the minimum qualifying rating of 90%. Oelofse also met the
other qualifying requirements relating to being employed
at the time
when bonuses were awarded, and attendance at work.
[12]
On 28
August 2014, the first respondent’s board of directors approved
the payment of performance bonuses to qualifying employees.
These bonuses were then paid on 19 September 2014, but Oelofse was
not paid her bonus. Her performance bonus would have been
R24 402.00. At this time, she was still subject to the
disciplinary proceedings as set out above.
[13]
As
stated above, Oelofse challenged this failure to pay her performance
bonus as an unfair labour practice dispute to the CCMA,
in terms of
Section 186(2)(a) of the LRA. Oelofse also lodged an internal
grievance in this respect. Ultimately, and on 10
April 2015,
pursuant to this grievance, the first respondent gave written reasons
for refusing to pay her performance bonus.
In particular, it
was recorded as follows:
‘…
It
is however clear that Ms Oelofse’s conduct was contrary to the
values of the organization. Compliance with the organizational
contributes to performance, rather than merely meeting the
performance objective stated in the individual’s balanced score
card. At the heart of an employment relationship there is a
duty of good faith. It is a common law duty of an employee
to
work in the best interest of it employer. … Therefore,
it makes no sense to reward an employee who has been found
guilty of
serious misconduct, and who has breached that duty, by paying the
employee a performance bonus.
’
[14]
When
deciding the unfair labour practice dispute, based on the reasons for
refusing to pay the bonus as set out above, the second
respondent
found against Oelofse, finding that the first respondent did not act
unfairly in refusing to pay her performance bonus,
for these
reasons. This led to the current review application.
The
test for review
[15]
Little
time need be spent on the applicable review test. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[3]
Navsa
AJ held that the standards as contemplated by Section 33 of the
Constitution
[4]
are in essence to be blended into the review grounds in Section
145(2) of the LRA, and remarked that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’
.
The learned Judge held that the threshold test for the reasonableness
of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...
’
[5]
[16]
What
Sidumo
means is that in order to succeed with a review application, a review
applicant must first show that there is a failure or error
on the
part of the arbitrator (an irregularity). If this cannot be
shown to exist, then the review fails. If the irregularity
is
however shown to exist, the review applicant must secondly show that
the outcome arrived at by the arbitrator was unreasonable.
If
the outcome arrived at is nonetheless reasonable, despite the
irregularity, the review application similarly fails. 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
[6]
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.’
Succinctly
described in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[7]
,
the enquiry is:
‘…
.
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.’
[17]
Thus,
all the evidence and issues before the arbitrator must be considered
so as to ascertain 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.
[8]
In turn, 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, with the view
to establish whether this material and issues can,
or cannot, sustain
the outcome arrived at by the arbitrator. As said in
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
[9]
:
‘…
.
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.
’
[18]
Against
the above principles and test, I will now proceed to consider the
applicants’ application to review and set aside
the arbitration
award of the second respondent.
Grounds
of review
[19]
The
applicant’s case for review must be made out in the founding
affidavit, and supplementary affidavit.
[10]
As was said
in
Northam
Platinum Ltd v Fganyago NO and Others
[11]
:
‘…
.
The
basic principle is that a litigant is required to set out all the
material facts on which he or she relies in challenging the
reasonableness or otherwise of the commissioner's award in his or her
founding affidavit’
.
Whilst
the applicants have raised a number of individual review grounds in
the founding affidavit, these can all be summarized into
the broad
categories set out below.
[20]
The
applicants have contended that the second respondent misconstrued the
evidence by failing to consider that Oelofse had been
punished more
than once for the same misconduct, being a final written warning and
the non-payment of the bonus. The applicants
have also made mention
in the review application about further punishment in the form of a
wrong article in Beeld, but in my view
nothing turns on this article,
because surely it cannot be seen to be punishment meted out by the
first respondent. The proper
point the applicants sought to make is
that Oelofse qualified for a performance bonus, and having received a
final written warning
for the misconduct, it was double jeopardy to
refuse to pay her performance bonus based on the same misconduct.
[21]
The
applicants have also raised an inconsistency issue in the founding
affidavit, contending that the second respondent had no regard
to
such issue, thus committing a reviewable irregularity. This review
ground is based on a contention that other managers were
dismissed by
the first respondent for misconduct, but they still received their
performance bonuses in instances where they met
the qualifying
criteria for the bonus payments.
[22]
A
further ground of review is that the second respondent failed to
properly consider and evaluate the remuneration and performance
practices themselves, and also exceeded his powers in this respect,
in that he did not conclude that disciplinary action against
an
employee was not a legitimate criterion for the refusal to pay a
performance bonus. The applicants in essence contended that
the first
respondent did not have a discretion to refuse to pay a performance
bonus in the case where the qualifying criteria were
met.
Evaluation
[23]
The
task in deciding this review is fortunately simplified by the fact
that the relevant factual matrix was undisputed, as was the
provisions of the performance and the remuneration practices. As
said, the applicants have contended that the two practices do
not
afford a discretion to the first respondent to refuse to pay a
performance bonus to an employee, where the qualifying criteria
in
the remuneration practice (clause 15.6.3.7) have been met. For
the reasons to follow, I simply cannot agree with this
contention.
[24]
A
holistic consideration of the two practices at stake reveals an
organizational imperative as an important component of performance
rewards. In clause 1.1 of the remuneration practice it is
stated that the objective of remuneration in terms of this practice
is not only to recognize employees individually for the value they
add, but also to reinforce alignment with Armscor’s (first
respondent) vision, mission and objectives. In general terms,
as reflected in clause 1.1.4(a)(ii), the right kind of performance
must be rewarded. As referred to above, clause 3.13 of the
remuneration practice also specifically recognizes organizational
goals
in performance remuneration. Read with this, clauses 3.2.15 and
3.2.17 of the performance practice provide that an integral component
of ‘performance’ and ‘performance pay’ is the
attaining of the first respondent’s values and objectives.
The
standards applicable to performance management in clause 5.2 of the
performance practice is permeated with organizational vision
and
objective requirements. My view is that it is clear that it is not
just about individual performance objectives and individual
qualifying criteria. Any rewarding must be consistent with the first
respondent’s company objectives and values.
[25]
The
point can be illustrated by perhaps an extreme example. Assuming an
employee is dismissed for defrauding the first respondent
of R100
million, but that same employee achieved the individual performance
objectives and qualifying criteria for the preceding
financial year,
for the purposes of the payment of a performance bonus. Can it
now be legitimately argued that such an employee
should be rewarded
by being paid a performance bonus despite what the employee did?
Surely not.
[26]
In
interpreting and applying the practices, the following principles in
Natal Joint Municipal
Pension Fund v Endumeni Municipality
[12]
must be considered, where the Court
said:
‘…
.
Interpretation
is the process of attributing meaning to the words used in a document
…. having regard to the context provided
by reading the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon
its coming into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light
of the ordinary rules of grammar
and syntax; the context in which the provision appears; the apparent
purpose to which it is directed
and the material known to those
responsible for its production. Where more than one meaning is
possible each possibility must be
weighed in the light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred
to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose of the
document. ….’
As
summarized above, the documents (practices) as a whole contemplates
that the performance remuneration and rewards is not just
based on
individual performance, but that of a broader organizational
objective and value is equally at stake. The purpose is to
reward the
right kind of performance, which includes aspiring to organizational
values. These organizational aspirations are determined
by way of the
exercise of a discretion. This kind of interpretation and application
is in my view certainly the most sensible and
business like, in the
circumstances.
[27]
In
the end, and what is clear from both these practices is that despite
the objective qualifying criteria prescribed, that must
be met by an
employee, the decision whether or not to pay a performance bonus to
an employee was always subject to the exercise
of a discretion by the
first respondent as employer, in order to ensure adherence to
organizational objectives and values as well.
The second
respondent, in his award, accepted this to be the case. In my
view, he cannot be faulted in this regard.
[28]
That
being said, and as the second respondent properly appreciated, the
first respondent still had to act fairly in exercising this
discretion. Simply put, and in employment law terms, and under
the auspices of the unfair labour practice jurisdiction,
[13]
there is no such thing as an unfettered discretion. It is now
trite that the exercise of the discretion must always be subject
to
being tested against basic tenets of fairness. In
Apollo
Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[14]
the Court held:
‘…
Therefore
even where the employer enjoys a discretion in terms of a policy or
practice relating to the provision of benefits such
conduct will be
subject to scrutiny, by the CCMA, in terms of s 186(2)
(a)
.
’
A
similar approach was followed in
Aucamp
v SA Revenue Service
[15]
where it was said:
‘
Even
if a benefit is subject to conditions and the exercise of a
discretion, an employee could still, as part of the unfair labour
practice proceedings, seek to have instances where the employee then
did not receive such benefit adjudicated. So therefore, even
if the
benefit is not a guaranteed contractual right per se, the employee
could still claim same on the basis of an unfair labour
practice if
the employee could show that the employee was unfairly deprived of
same. An example would be where an employer must
exercise a
discretion to decide if such benefit accrues to an employee, and
exercises such discretion unfairly.
’
[29]
I am
satisfied that the payment of a performance bonus in the
circumstances
in
casu
would constitute such a benefit as contemplated by Section 186(2)(a)
and the
dicta
in
Apollo
Tyres
and
Aucamp
.
In
Apollo
Tyres
[16]
the Court specifically considered the unfair labour practice
jurisdiction under Section 186(2)(a) relating to the concept of
“benefits’
and said:
‘…
In
my view, the better approach would be to interpret the term "benefit"
to include a right or entitlement to which the
employee is entitled
(ex contractu or ex lege, including rights judicially created) as
well as an advantage or privilege which
has been offered or granted
to an employee in terms of a policy or practice subject to the
employer's discretion. In my judgment
"benefit" in s
186(2)
(a)
of
the Act means existing advantages or privileges to which an employee
is entitled as a right or granted in terms of a policy or
practice
subject to the employer's discretion.
’
Of
direct application
in
casu
,
the Court in
Aucamp
[17]
specifically considered a case of whether the payment of a
performance bonus to an employee would be a benefit under the unfair
labour practice jurisdiction, and held as follows:
‘
The
issue of the applicant's performance bonus, and the case that he has
been unfairly deprived of the same, is clearly an unfair
labour
practice case relating to benefits. On the facts of this matter, the
performance bonus is clearly not remuneration. In fact,
the
qualifying provisions and terms of the PMDS policy and collective
agreement make it clear that it is not remuneration. It is
linked to
performance objectives, all kinds of qualifying requirements, and
several moderation levels which do not specifically
relate to
employees or their own individual performance. Also, what is declared
as a bonus pool forming the very basis for the
quantum of any such
bonus, is also discretionary and dependent on a variety of factors.
…
’
[30]
With
the performance bonus
in
casu
thus being a benefit, and the discretion to be exercised by the first
respondent in awarding or not awarding such a benefit being
subject
to scrutiny based on what would be considered to be fair, the next
most obvious question to answer is under what circumstances
the
exercise of the discretion could indeed be seen to be unfair.
The Court in
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[18]
,
in dealing with the challenge of discretions in general, decided that
a discretion would be open to successful challenge if the
discretion
was not judicially exercised and in particular:
‘…
had
been influenced by wrong principles or a misdirection on the facts,
or that it had reached a decision which in the result could
not
reasonably have been made by a court properly directing itself to all
the relevant facts and principles
’
[31]
In
Apollo
Tyres
the Court applied these general principles applicable to the
challenge of the exercise of discretion on the basis of being unfair,
as follows:
[19]
‘…
unfairness
implies a failure to meet an objective standard and may be taken to
include arbitrary, capricious or inconsistent conduct,
whether
negligent or intended.
’
[32]
There
are a number of authorities dealing with the issue of unfairness,
where it comes to the discretion exercised by an employer
when
deciding whether or not to promote employees, with promotion also
being part of the same unfair labour practice jurisdiction
in Section
186(2)(a). In this respect, it has been said that the
discretion of the employer was not to be lightly interfered
with,
[20]
but despite this, the general theme that emerges is that the
discretion would be considered to have been unfairly exercised
if it
was, similarly to what the Court said in
Apollo
Tyres
,
exercised in a manner that was arbitrary, capricious, mala fide,
irrational or grossly unreasonable.
[21]
As was said in
Ncane
v Lyster NO and Others
[22]
:
‘…
the
discretion of an arbitrator to interfere with an employer’s
substantive decision to promote a certain person is limited
and an
arbitrator may only interfere where
the
decision is irrational, grossly unreasonable or mala fide …
’
I
see no reason why the exact same considerations cannot be applied
when evaluating whether the exercise of an employer’s
discretion where it comes to the awarding, or not awarding for that
matter, of benefits, would be fair or unfair.
[33]
When
applying all of the above
in
casu
,
the appropriate point of departure is establishing exactly why the
first respondent decided not to pay Oelofse the performance
bonus.
Fortunately, the first respondent had committed this reason to
writing, in the grievance outcome of 10 April 2015, saying
that
Oelofse contravened her duty of good faith towards the first
respondent and acted contrary to the values and objectives of
the
first respondent as an organization, and as a result of the serious
nature of the misconduct she had committed and been found
guilty of.
[34]
Is
this approach adopted by the applicant then
irrational,
capricious, grossly unreasonable or
mala
fide
?
In deciding this, it
is
in my view appropriate to consider the facts in
Apollo
Tyres
,
as a basis for comparison to the contrary, so to speak, to the matter
in
casu
.
In
Apollo
Tyres
,
the dispute concerned
early
retirement benefits which could to be granted to employees at the
employer's discretion, and what had to be considered in
deciding
whether that discretion had been exercised unfairly.
[23]
The Court reasoned as follows, in ultimately deciding that the
discretion was indeed exercised unfairly:
[24]
‘
It
is clear that the appellant kept on shifting the goal posts. This was
in all probability done in order to make sure that she
was given an
'acceptable' reason why she did not qualify for the scheme. It is
clear that there is no acceptable, fair or rational
reason why she
was not allowed to participate in the scheme. The employer did not
exercise its discretion fairly.
’
In
casu
,
there was no shift of position on the part of the first respondent
where it came to deciding not to pay the performance bonus.
It
simply applied the same criteria and considerations as contained in
the remuneration and performance practices as it existed
at the time.
Even if the first respondent may have been wrong in interpreting and
applying these practices, that will not render
to the discretion
unfair, considering what needs to be shown in this regard. It
is also beyond doubt that Oelofse had actually
been disciplined,
found guilty, and given a final written warning for what was serious
misconduct, which was considered by the
first respondent in
exercising its discretion. It is not a fabricated scenario, but an
objective fact that existed.
[35]
In
City
of Cape Town v SA Local Government Bargaining Council and Others
[25]
,
employees were paid a vehicle cost benefit which had as a requirement
that employees had to submit log sheets. Because
some
employees were paid while they had not submitted log sheets, this
benefit scheme was terminated. The employee in this matter
was one of
those that did not submit log sheets. The Court held:
[26]
‘
When
Esau stopped submitting log sheets to the city, he stopped being
entitled to the benefit. It was not unfair of the city to
stop
payments in those circumstances.
’
The
direction that can be extracted from this judgment is that it would
not be unfair if the existence of an objective fact forms
the basis
of the exercise of the discretion, provided of course it is relevant
to the purpose for which the discretion is exercised.
[36]
The
concept of fairness is not one sided, but a two-way street, and must
involve considerations of fairness to both the employer
and the
employee.
In
this case, and in my view, the second respondent as arbitrator was
very much alive to this. The nub of his reasoning was that
it would
not be fair for Oelofse to be rewarded by giving her a bonus,
considering the serious misconduct she committed. I tend
to fully
agree with this. I believe Oelofse was lucky to escape dismissal. The
misconduct she committed was serious, and considering
her position in
the first respondent, entirely at odds with her duty of good faith
towards the first respondent as her employer.
One can hardly do any
better than to refer to the following dictum in
Schwartz
v Sasol Polymers and Others
[27]
:
‘
The
employment relationship obliges an employee to act honestly, in good
faith, and to protect the interests of the employer so
as to avoid
conflicts of interest that may arise which may breach this duty. The
appellant was employed in a senior position as
an engineering
manager. His calculated silence in the face of a duty to speak
amounted to a fraudulent non-disclosure or concealment
of the true
state of affairs in circumstances in which gifts and benefits
earned secretly fell to be disgorged by him with
‘little room …
to avoid that consequence’. His conduct was by its nature
dishonest in circumstances in which
he was obliged to act with
honesty, diligence and good faith towards his employer and not to
allow his own interests to prevail
over those of Sasol. …
’
The
comparison to the conduct of Oelofse is clear. How can it be
suggested that in such circumstances, Oelofse should be rewarded
by
way of a discretionary bonus meant to recognize and reward employees
that are exceptional and excel. Such a proposition is to
me simply
beyond comprehension. For the first respondent to in these
circumstances exercise its discretion in favour of not rewarding
Oelofse, can in my view simply not be seen to be unfair.
[37]
It
was always undisputed that Oelofse achieved the qualifying
requirements to be paid a performance bonus. But, and in my
view, there is little doubt that the discretion whether to award an
employee a performance bonus is not just based on meeting certain
objective deliverables. If that was indeed so, then why would there
even be a need for a discretion. Simply put, if an employee
makes 90%
or target as required, is employed at the time of the bonus award,
and has more than minimum service required, the payment
of a bonus
follows. There would be no discretion in it. It must therefore
follow that the fact that it is specifically provided
in the
practices that the payment of the performance bonus is subject to a
discretion, has to mean something more than just meeting
specified
qualifying requirements. It must mean that it is still up to
the first respondent to decide whether or not an employee,
even if
that employee does meet the qualifying criteria, should indeed get a
performance bonus, and in doing so, the first respondent
must act
fairly. The second respondent in his award properly appreciated this
to be the case.
[38]
I
thus cannot accept the applicants’ argument that simply meeting
the objective criteria in the remuneration policy is the
only
quid
pro quo
for getting paid a performance bonus. It is my view that there is
another general requirement, being whether the first respondent
in
its discretion considers it appropriate to pay that bonus on the
basis of, as described above, the employee concerned adhering
to the
first respondent’s values and objectives.
As fully dealt with
above, it can hardly be said that the first respondent acted unfairly
or even unreasonably in deciding that
the misconduct Oelofse was
found guilty of meant that she did not meet these values and
objectives. In my view, and overall
considered, this was a fair
position to adopt.
[39]
Whilst
it may be so that applicants disagreed with the manner in which the
first respondent chose to exercise its discretion, such
disagreement
simply cannot substantiate a case for interfering with the
discretion. It takes a lot more than disagreement to upset
the
exercise of a discretion. In
Eskom
Holdings SOC Ltd v National Union of Mineworkers obo Kyaya and
Others
[28]
the Court held, in comparable circumstances, when dealing with an
unfair labour practice dispute:
‘
It
is difficult to understand, in the above context, now it can be said
that the applicant acted unfairly towards the individual
respondents. The fact that the individual respondents may
disagree with the grading attached to their positions because of
the
nature of the work and the duties they fulfilled simply does not
matter. There was no evidence by the individual respondents
or
even any case that the grading of T10 attached to their positons was
improperly arrived at, wrong, or for example in breach
of the
applicant’s policies. What matters, beyond doubt, is that
this grading was properly considered and debated by
all stakeholders,
agreed to, and then graded by the Job Evaluation Committee
accordingly, leading to a grading of the individual
respondents’
positions at T10. Accordingly, the high water mark of the
individual respondents’ case is that they
did not agree that
their positions were a T10 grade. Such disagreement simply
cannot successfully found a case of an unfair
labour practice
.’
[40]
In
the end, the second respondent’s conclusion cannot be faulted.
He considered the basis upon which the first respondent
exercised its
discretion not to pay a performance bonus to Oelofse. According to
the second respondent, Oelofse should not be rewarded
based on
performance where she in fact committed serious misconduct, and the
first respondent did not act unfairly in so deciding.
On the basis I
have discussed above, it is my view that this conclusion arrived at
by the second respondent resorts well within
the bands of what would
be considered to be a reasonable outcome, and is unassailable on
review.
[41]
This
then brings me to the ‘double jeopardy’ argument of the
applicants. As set out above, the applicants argued
that
because Oelofse had already been given a final written warning for
her misconduct, depriving her of her performance bonus
based on in
essence the same misconduct is tantamount to punishing her again for
this, and this would be double jeopardy. The second
respondent
rejected this argument, finding that this was not a case of Oelofse
being punished twice, but rather her not being rewarded.
[42]
In
deciding whether the double jeopardy conclusion of the second
respondent is reviewable, it is perhaps best to start with
considering
what exactly ‘double jeopardy’ is. In common
law, this kind of defence is commonly known as
autrefois
convict.
In
the context of criminal proceedings, the Court in
Lelaka
v S
[29]
held:
‘
It
is a general rule of the common law that a person may not be punished
twice for the same offence. This common-law rule is now
entrenched in
the provisions of section 35(3)(m) of the Constitution. In terms of
the rule, an accused may raise the plea of
autrefois
convict
or
acquit
.
This principle is grounded in the maxim that no person is to be
brought into jeopardy more than once for the same offence. This
principle finds expression in the rule of law that if someone has
been either convicted or acquitted of an offence he or she may
not
later be charged with the same offence or with what was in effect the
same offence. …
’
[43]
The
Constitutional Court considered the principle as well in
S
v Basson
[30]
and said:
‘
An
accused person is only protected against prosecution in a second
prosecution, if he or she was in jeopardy of conviction in the
first.
Stratford JA enunciated this principle in
R
v Manasewitz
in the following terms:
“
I
accept, for the purpose of these reasons, the following requisites to
establish a plea of
autrefois
acquit
,
namely that the accused has been previously tried (1) on the same
charge, (2) by a Court of competent jurisdiction and (3) acquitted
on
the merits. Obviously an accused so tried must have been in jeopardy.
The proposition is sometimes stated slightly differently
thus: That
the accused has been previously indicted on the same charge, was in
jeopardy, and was acquitted on the merits. If so
stated it is
necessary to add that if the indictment was invalid or the Court had
no jurisdiction the accused was not in jeopardy.
Again, if after
conviction a superior Court quashes an indictment as bad
ab
initio
the
accused cannot on retrial rely upon the previous-ultimate-acquittal.
This view can be justified either on the ground that the
crime
alleged in the subsequent, good, indictment is not that alleged on
the previous, bad indictment, or on the ground that the
accused was
never (legally) in jeopardy or that the acquittal was not on the
merits.”
’
[44]
What
emerges from the above
dicta
is that what must be shown to exist for double jeopardy to apply, is
that a person must not be charged again for the same offence
that
person had already been found guilty of. In the context of
employment law, this would mean that an employee cannot be
charged in
disciplinary proceedings for the same misconduct, based on the same
facts, if already subjected to disciplinary proceedings
and found
guilty of that misconduct with punishment dispensed.
[31]
Applying what was said in
Lelaka
and
Basson
– the employee must be in the same jeopardy in the first
proceedings as the employee would be in, in the second proceedings.
[45]
But
the Labour Appeal Court has however decided that the principle of
autrefois
convict
cannot simply be applied in employment law without any reservation.
In
BMW
(SA) (Pty) Ltd v Van der Walt
[32]
the Court held:
‘…
I
t
is unnecessary to ask oneself whether the principles of autrefois
acquit or res iudicata ought to be imported into labour law.
They are
public policy rules. The advantage of finality in criminal and civil
proceedings is thought to outweigh the harm which
may in individual
cases be caused by the application of the rule.
In
labour law fairness and fairness alone is the yardstick
.
…
’
(emphasis
added)
This
principle was equally applied by the same Court in
Branford
v Metrorail Services (Durban) and Others
[33]
.
[46]
In my
view, and in the light of the above considerations, this is not a
case where the applicants can successfully raise double
jeopardy as a
basis for challenging the fairness of the first respondent’s
decision not to by Oelofse a performance bonus.
There are a number of
reasons why this would be the case. The first is that two separate
disciplinary proceedings on the same charge
simply do not exist.
Where it comes to the performance bonus issue, it is simply not a
disciplinary matter. There is no charge
for which Oelofse faced the
same kind of jeopardy as in the case of the initial disciplinary
proceedings, being the possible loss
of her job (which fortunately
turned out to be a final written warning). Secondly, the performance
bonus is not an issue concerning
conviction, for the want of a better
description, and punishment. This is echoed in the performance
practice in clause 5.2.17,
where it is said that
‘
Performance
management is not seen as a punitive process …’.
The
performance bonus is an issue of the employee being rewarded for
being exceptional. Determining whether the employee is exceptional
for the purposes of a reward is simply not the same enquiry as in the
case an employee being guilty of a charge of misconduct and
being
punished. In simple terms, it cannot be a case where Oelofse is
punished twice for the same offence following separate disciplinary
proceedings.
[47]
A
comparison can be drawn to the instances where an employee was
convicted in a criminal court for an offence, and then based on
the
same facts and same conduct, the employee is then subjected to
internal disciplinary proceedings in an employer. It has been
consistently held that this is not a case of
autrefois
convict
,
in essence because it is not the same kind of proceedings and the
same jeopardy is not faced.
[34]
[48]
This
is simply a case where the existence of a disciplinary record, as a
matter of objective fact, has adverse consequences to an
employee.
This does not mean that such consequences that flow from the
existence of such a disciplinary record, constitutes punishment
for
the same offence all over again. There are in fact many
examples in employment law where the existence of a final written
warning may be considered in the case of an employer declining to
promote an employee. This was for example recognized in
Noonan
v Safety and Security Sectoral Bargaining Council and Others
[35]
.
This situation clearly does not mean that the employee is pushed
twice for the same misconduct.
[49]
The
distinction can be further properly illustrated by the facts in the
judgment in
Lelaka
[36]
.
In that case, the accused was convicted of assault. Following
the conviction of assault, the victim then became deceased.
Because
it was the exact same facts and events that gave rise to both the
assault, and the victim later becoming deceased, the
question was
whether the accused could now be charged for murder as well. In
specifically considering the defence of
autrefois
convict
,
the Court said:
‘…
When
the appellant was convicted the deceased was still alive. It was thus
not possible at that stage to charge him with murder.
A case on all
fours with the present case is that of
R
v Stuurman
(1863)
1 Roscoe 83.
In that case an accused had been convicted of common
assault and the man assaulted subsequently died. It was held that
this conviction
was no bar to his subsequent trial and conviction for
culpable homicide.
’
In
my view, the following comparison to the matter
in casu
is
apparent. At the time when the disciplinary proceedings against
Oelofse was being conducted, and she was subsequently
found guilty,
the issue of her performance bonus was simply not up for
consideration, nor part of the disciplinary proceedings.
It
would not have been competent for the chairperson in those
disciplinary proceedings to deal with the issue of her performance
bonus and make any determination whether it should be paid or not.
There should accordingly be no bar to the first respondent
later
considering this issue, in line with the practices, and then exercise
a discretion in that respect, provided of course that
it is fair.
[50]
But
even if it can somehow be suggested that
autrefois
convict
as a matter of principle could find application in this instance,
that is still not the end of the issue. As said in
BMW
,
fairness always remains the ‘yardstick’. As I have
already dealt with above, it is simply not unfair for the
first
respondent to have decided that the prior misconduct and actual
disciplining of Oelofse meant she could not be rewarded by
way of a
performance bonus. So therefore, even on the basis of this
‘yardstick’, the applicants’ case has no
substance.
[51]
Only
the inconsistency issue remains. In this regard, it must always be
remembered that the duty to prove the existence of inconsistency
would rest on the applicant (‘employee party’), and that
the case for inconsistency must be made out in sufficient
particularity, identifying the other employees involved, so as to
enable the employer to provide a proper answer to it.
[37]
And even then, should it be shown that employees have been treated
differently, a number of further requirements must still
be satisfied
in order to successfully make out an inconsistency case. These are
first, that a like for like comparison must be
conducted.
[38]
Even if a like for like comparison points to possible inconsistency,
it must then still be shown that the employer’s conduct
in
treating employees differently was not motivated by arbitrariness,
mala
fides
,
capricious conduct or a discriminating management policy.
[39]
So even if an employer may have erred in acting against some
employees and not others, it does not follow that an inconsistency
case succeeds, in the absence of the aforementioned considerations.
As said in
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd
[40]
:
‘…
If
a chairperson conscientiously and honestly, but incorrectly,
exercises his or her discretion in a particular case in a particular
way, it would not mean that there was unfairness towards the other
employees. It would mean no more than that his or her assessment
of
the gravity of the disciplinary offence was wrong. It cannot be fair
that other employees profit from that kind of wrong decision.
In a
case of a plurality of dismissals, a wrong decision can only be
unfair if it is capricious, or induced by improper motives
or, worse,
by a discriminating management policy.... ‘
[52]
Considering
the above principles, the applicants’ inconsistency case faces
a number of insurmountable obstacles. Firstly,
I could find no
evidence of a proper like for like comparison being conducted. The
pre-arbitration minute only makes a cursory
reference to it being a
common cause fact that other unidentified managers were dismissed for
misconduct but still received a performance
bonus, where they met the
qualifying criteria. In her testimony, Oelofse makes no reference to
this. The applicants’ written
argument presented to the second
respondent refers a number of documents in the bundle in this
respect, but all of these documents
were never ventilated in evidence
and were not proven. The applicants’ argument makes specific
reference to three individuals,
A C Van der Spuy, D J Viljoen and P A
Meiring, merely alleging they were dismissed in 2012 but received
their performance bonus
for the 2011/2012 period. The simple fact
remains that there is no indication of the particular circumstances
of such mentioned
cases, followed by a comparison to the current
case. There is equally no evidence as to what may have motivated the
first respondent
in paying these bonuses to these employees, despite
their misconduct. This must mean the end of any inconsistency case,
as the
applicants have simply dismally failed to discharge the duty
on them to establish such a case.
[53]
The
above being said, the first respondent nonetheless sought to offer an
explanation as to what the applicants were complaining
about. It
explained that prior to 13 November 2013, when the performance
practice as it stood at the time of this matter was adopted,
there
was a
lacuna
in the practices where it came to the organizational requirements,
objectives and norms, as part of the performance bonus discretion.
The first respondent explained that this
lacuna
was remedied by the adoption of the performance practice referred to,
and after this, no employee was ever paid a performance bonus
where
these organizational requirements were not met. The performance bonus
applicable in this case related to such period when
the performance
practice in its current form applied. There was nothing to contradict
this explanation of the first respondent,
which in any event is
consistent with the undisputed documentary evidence. This
explanation would defeat any inconsistency
case brought by the
applicants.
[54]
To
sum up, the second respondent simply cannot be faulted where he found
that the first respondent did not act unfairly in deciding
not to
reward Oelofse by way of a performance bonus, considering the
misconduct she had committed. Similarly, the second
respondent
cannot be faulted for finding that this was not a case of double
jeopardy. In the end, the applicant failed to make
out a case that
the discretion exercised by the first respondent was exercised in
such a manner so as to open it up for intervention.
No proper case of
inconsistency has also been made out. The applicant has therefore
failed to justify a proper basis on which this
Court should interfere
with the award of the second respondent.
Conclusion
[55]
In
Gold
Fields Mining
[41]
the Court said:
‘…
.
The questions to ask are these: … (ii) Did the arbitrator
identify the dispute he was required to arbitrate….? (iii)
Did
the arbitrator understand the nature of the dispute he or she was
required to arbitrate? .. (iv) Did he or she deal with the
substantial merits of the dispute? and (v) is the arbitrator’s
decision one that another decision-maker could reasonable
have
arrived at based on the evidence?’
In
casu
,
all these questions must clearly be answered in the affirmative, and
this can only lead to an ultimate conclusion that the second
respondent’s award must be upheld.
[56]
Therefore,
and for all the reasons set out above, I conclude that the second
respondent’s arbitration award is not reviewable.
I am
satisfied that there is nothing untoward or irregular in the first
respondent’s evaluation and determination of the
matter.
Insofar as the issue of the outcome arrived at by the second
respondent may be considered on the basis of it being
reasonable or
unreasonable, there is in my view no doubt that it would comfortably
resort within the bands of reasonableness as
required, in order to be
sustainable on review. The applicants’ review application
accordingly falls to be dismissed.
[57]
This
then only leaves the issue of costs. The first respondent has pressed
for a costs award. But I am unable to accede to this
request. The
parties are still very much in an employment relationship with one
another. Although the applicants in the end could
not make out a
case, I do consider that Oelofse’s dissatisfaction about the
fact that she did not receive the performance
bonus where she
actually met the qualifying criteria was understandable, even if
misplaced. The issue of whether a discretion has
been fairly or
unfairly exercised is often complex, and would justify proper
consideration by this Court, and I thus cannot fault
the applicants
for bringing the case. Exercising the wide discretion I have
under Section 162 of the LRA, I consider it appropriate
that no costs
order be made against the applicants.
Order
[58]
In
the premises, I make the following order:
1.
The
applicants’ review application is dismissed.
2.
There
is no order as to costs.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
N Ras – Union Official
For the First Respondent:
Adv G Fourie
Instructed
by:
Bowman Gilfillan Attorneys
[1]
Act 66 of 1995.
[2]
Section 145(1)(a) reads: ‘Any
party to a dispute who alleges a defect in any arbitration
proceedings under the auspices
of the Commission may apply to the
Labour Court for an order setting aside the arbitration award - (a)
within six weeks of the
date that the award was served on the
applicant …’
[3]
(2007) 28 ILJ 2405
(CC).
[4]
Constitution of
the Republic of South Africa, 1996.
[5]
Id 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 v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[6]
(2013) 34
ILJ
2795 (SCA)
at para 25.
[7]
(2014) 35 ILJ 943
(LAC) at para 14. The
Gold
Fields
judgment 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.
[8]
See
Fidelity
Cash Management
(
supra
)
at para 102.
[9]
(2015) 36 ILJ 1453
(LAC) at para 12.
[10]
See
Brodie
v Commission for Conciliation, Mediation and Arbitration and Others
(2013) 34
ILJ 608 (LC) at para 33;
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011)
32 ILJ 730 (LC) at para 9;
De
Beer v Minister of Safety and Security and Another
(2011)
32 ILJ 2506 (LC) at para 27. The applicants did not file a
supplementary affidavit, and simply filed a Rule 7A(8)
standing by
their notice of motion.
[11]
(2010) 31 ILJ 713
(LC) at para 27.
[12]
2012 (4) SA 593
(SCA) at para 18. See also
Bothma-Batho
Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) at para 12.
[13]
In this regard, Section 186(2)(a) of
the LRA reads: ‘
’
Unfair
labour practice’ means
any
unfair act or omission
that arises between an employer and an employee involving —
unfair conduct
by the employer relating to the promotion, demotion, probation or
training of an employee or relating to the provision of benefits
to
an employee.' (
Emphasis
added)
[14]
(
2013)
34 ILJ 1120 (LAC) at para 47
.
[15]
(
2014)
35 ILJ 1217 (LC) at para 29.
[16]
(
supra
)
at para
50.
See also
SA
Revenue Services v Ntshintshi and Others
(2014)
35 ILJ 255 (LC) at paras 35 – 37;
Thiso
and Others v Moodley NO and Others
(2015) 36 ILJ 1628 (LC) at paras 11 – 12;
Western
Cape Gambling and Racing Board v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2166 (LC) at para 18.
[17]
(
supra
)
at para 25.
[18]
2000 (2) SA 1
(CC)
at
para 11.
[19]
Id at para 53.
[20]
See
Provincial
Administration Western Cape (Department of Health and Social
Services) v Bikwani and Others
(2002)
23 ILJ 761 (LC) at paras 29 – 30;
SA
Police Service v Safety and Security Sectoral Bargaining Council and
Others
(2010)
31 ILJ 2711 (LC) at para 15.
[21]
See
Arries
v Commission for Conciliation, Mediation and Arbitration and Others
(2006) 27
ILJ
2324 (LC) at paras 47 – 48;
National
Education, Health and Allied Workers' Union obo Manyana and another
v Masege NO and Others
[2016]
JOL 35711
(LC) at para 55;
Nainaar
v Department of Works, KwaZulu-Natal and Others
[2015] JOL 33268
(LC) at para 33
.
[22]
(2017) 38 ILJ 907
(LAC) at para 25.
[23]
(
supra
)
at para 52.
[24]
Id at para 59.
[25]
(2014)
35 ILJ 163 (LC) at para 24.
[26]
Id at para 27.
[27]
(2017)
38 ILJ 915 (LAC) at para 20.
[28]
[2017] 8 BLLR 797
(LC) para 89.
[29]
[2016]
JOL 35986
(SCA) at para 6. See also
Plaatjies
v Director of Public Prosecutions, Transvaal
[2014] JOL 31739
(SCA) at para 13.
[30]
2005 (12) BCLR
1192
(CC) at paras 254 – 255.
[31]
See
Bidserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2017) 38 ILJ 860 (LAC) at para 18 footnote 2.
[32]
(2000)
21 ILJ 113 (LAC) at para 12.
[33]
(2003)
24 ILJ 2269 (LAC) 7. See also
Metropolitan
Health Risk Management v Majatladi and Others
(2015) 36 ILJ 958 (LAC) 23 – 24 ;
Member
of the Executive Council for Finance, KwaZulu-Natal & another v
Dorkin NO and Another
(2008) 29 ILJ 1707 (LAC) at paras 13 – 14;
Armstrong
v SA Civil Aviation Authority
(2011)
32 ILJ 2487 (LC) at para 14;
Solidarity/MWU
on behalf of Van Staden v Highveld Steel and Vanadium and Another
(2005) 26 ILJ 2045 (LC) at para 13.
[34]
See
Muremi
v SAPS and Others
[2009]
JOL 23237
(LC);
Moahlodi
v East Rand Gold and Uranium Co Ltd
(1988) 9 ILJ 597 (IC)
[35]
(2012)
33 ILJ 2597 (LAC) at para 35.
[36]
(
supra
)
at para 8.
[37]
See
National
Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine
(Rustenburg Section
(2014)
35 ILJ 2406 (LAC) at para 39;
Banda
v
General
Public
Service Sectoral Bargaining Council and Others
[2014]
JOL 31486
(LC) at para 49;
Comed
Health CC v National Bargaining Council for the Chemical Industry
and Others
(2012)
33 ILJ 623 (LC) at para 10;
SA
Municipal Workers Union on behalf of Abrahams and Others v City Of
Cape Town and Others
2011)
32 ILJ 3018 (LC) para 50;
Minister
of Correctional Services v Mthembu No and Others
(2006) 27 ILJ 2114 (LC) at para 13.
[38]
See
Banda
(
supra
)
at para 53;
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010)
31 ILJ 452 (LC)
at para
11;
Minister
of Correctional Services v Mthembu NO and Others
(
supra
)
at paras 8 – 9.
[39]
See
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd
(1999)
20 ILJ 2302 (LAC) at para 29;
Banda
(
supra
)
at para 57;
Consani
Engineering (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2004)
25 ILJ 1707 (LC) at para 19;
Chemical
Energy Paper Printing Wood and Allied Workers Union v National
Bargaining Council for the Chemical Industry and Others
(2010)
31 ILJ 2836 (LAC) at para 20.
[40]
(1999) 20 ILJ 2302
(LAC) at para 29.
[41]
(
supra
)
at para 20 – 21.