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[2018] ZALCJHB 230
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Prestige Cosmetics Group (Pty) Ltd v Ceda NO and Others (JR1556/17) [2018] ZALCJHB 230 (20 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: JR1556/17
In the matter between:
PRESTIGE COSMETICS GROUP (PTY)
LTD
Applicant
and
THEMBA CEDA
N.O.
First
Respondent
THE COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
Second
Respondent
AMANDA
SISHI
Third
Respondent
TEBOGO
LEKABA
Fourth
Respondent
Application heard: 19 June 2018
Judgment
delivered: 20 June 2018
JUDGMENT
VAN
NIEKERK J
[1] This is an unopposed application
to review and set aside an arbitration award issued by the first
respondent, to whom I shall
refer as ‘the arbitrator’. In
his award, the arbitrator found that the third and fourth respondents
had been unfairly
dismissed, and ordered that they be paid
compensation equivalent to eight and seven months’ salary
respectively.
[2] The facts giving rise to the
dispute between the parties are recorded in the arbitration award and
I do not intend to repeat
them here. The applicant’s case was
that the third and fourth respondents, who had been appointed as
beauty consultants,
were dismissed for poor work performance.
Evidence was given of the third and fourth respondent’s failure
to meet required
performance targets and of what were described as
performance reviews. In his analysis of the evidence, the arbitrator
found that
although the applicant had conducted performance
investigations, no counselling been provided to the third and fourth
respondents
and that it had not been established what their
shortcomings were, or in what manner the applicant was going to
assist the third
and fourth respondents to improve their performance.
In particular, the arbitrator held that ‘it defied logic and
sense’
that the third and fourth respondents had been subjected
to poor performance investigations in circumstances where the shop in
which they worked was ranked second nationally, and had experienced a
growth of 11%. Further, the arbitrator found that it was
‘nonsensical’ for employees who reach the targets to be
able to ‘share’ their targets with poorer performing
employees. In regard to procedural fairness, the arbitrator found
despite evidence that the poor performance investigations had
been
conducted, that these were not hearings and that the dismissals were
consequently procedurally unfair.
[3] The applicant has raised two
grounds for review. The first is that the arbitrator committed
misconduct in the course of the
proceedings and secondly, that he
failed properly to apply his mind to the evidence, ignored evidence,
and misconstrued the evidence
before him to the extent that his
conclusion was entirely disconnected from the material that served
before him. The applicant
avers that in the circumstances, the
conclusions reached by the arbitrator could not be reached by a
reasonable decision-maker.
[4] I do not intend to canvass the
first ground for review in any detail. The record discloses that the
arbitrator played an active
role in the proceedings, that he
descended into the arena by putting versions and hypothetical
scenarios to the applicant’s
witness and questioning closely
the manner in which the poor performance hearings had been conducted.
Arbitrators must necessarily
be afforded some degree of latitude in
the manner in which they conduct proceedings, and not all forms of
intervention necessarily
disclose bias. Given my finding in relation
to the second ground of review, it is not necessary for me to make
any finding in this
regard.
[5] In relation to the arbitrator’s
assessment of the evidence, the position is rather different. The
applicant’s witness
led extensive evidence on the performance
review sessions that were conducted with the third and fourth
respondents and the nature
and content of those sessions. This
evidence was not disputed by the third and fourth respondents.
Despite that, the arbitrator
found that the third and fourth
respondents had been unfairly dismissed because no hearing held. This
finding is fundamentally
inconsistent with the undisputed evidence
and with the principle that in cases of alleged poor performance, a
disciplinary-type
hearing is not appropriate. Further, the applicant
led extensive evidence, which was also undisputed, on the performance
targets
set for the third and fourth respondents and their failure to
meet those targets. Evidence was also led of the extensive training
on the applicant’s product range that was afforded to the third
and fourth respondents. The third and fourth respondents
were
subjected to at least three performance review sessions in order to
determine the reasons for their failure to meet the required
targets.
Guidance and counselling were offered but despite these efforts, the
targets were not met. This evidence was not referred
to nor
evaluated. Finally, the store’s ranking or the growth that it
had demonstrated was not relevant to the question whether
the third
and fourth respondents had met the required performance standards. At
issue was the individual performance of the third
and fourth
respondents, not the performance of the store in which they were
employed.
[6] In my view, the arbitrator’s
failure properly to assess the evidence before him had the
consequence of the result or outcome
that was unreasonable. There is
a fundamental disconnect between the material that served before the
arbitrator and the conclusion
to which he came. The award accordingly
stands to be reviewed and set aside.
[7] In the circumstances, the court
has a discretion either to remit the matter for rehearing, or to
substitute the award. Given
that the applicant’s primary
complaint, as I have indicated above, is one that relates to the
manner in which the arbitration
hearing was conducted, it is
appropriate, in my view, to remit the matter for rehearing before a
different commissioner.
I make the following order:
1.
The arbitration award issued by the first
respondent under case number GAJB 2181/17 on 4 July 2016 is reviewed
and set aside.
2.
The matter is remitted to the second
respondent for a rehearing before the commissioner other than the
first respondent
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Ms. T Moyo of Snyman Attorneys