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[2018] ZALCJHB 307
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Edcon Limited v Padayachee and Others (J331/16) [2018] ZALCJHB 307 (20 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no:
J331/16
In
the matter between:
EDCON
LIMITED
Applicant
and
KESHIA
MOHAMMED-PADAYACHEE
First
Respondent
COMMISSIONER
MQINGWANA
N.
O
Second
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
&
ARBITRATION
Third
Respondent
Heard
:
13 September 2018
Delivered
:
20 September 2018
Summary:
An opposed review application. The applicant contends that the
award of the respondent is not one that a reasonable commissioner
may
issue. Dismissal is justifiable on reasons that led to it. Where
incompatibility is the reason for dismissal, the employer
ought to
prove on a preponderance of probabilities that the employee was
incompatible. Held (1) The review application is dismissed.
(2) The
applicant is to pay the costs of the application.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an opposed application to review and set aside an arbitration
award issued by the second respondent on 15 February 2016
in terms of
which it was found that the dismissal of the first respondent is both
substantively and procedurally unfair. The second
respondent ordered
the applicant to reinstate the first respondent with a ten months’
salary backpay.
Background
facts
[2]
The first respondent was employed by the
applicant as its Group Remuneration and Benefits Manager. A senior
position within the
applicant. During the course of 2014, the
applicant received several complaints from various members of staff.
The complaints were
around work ethic and the first respondent’s
ability to collaboratively work within a team. In a meeting, around
October
2014, the applicant brought the complaints to the first
respondent’s attention. According to the applicant, the first
respondent
did little to address the complaints and an action plan
submitted by her addressed only one of the several complaints. The
first
respondent disputes all of that.
[3]
An attempt was made to arrive at a mutual
termination of employment. This attempt failed to yield the desired
results. Following
that a formal investigation was conducted. Upon
conclusion of the investigation, a view was held that the first
respondent is to
be summoned to an incapacity hearing to deal with
the alleged incompatibility. An incapacity enquiry was conducted and
concluded
on 03 March 2015. The conclusion was that the first
respondent was incompatible. She was thus dismissed on one month’s
notice.
[4]
Aggrieved by her dismissal, she referred a
dispute of alleged unfair dismissal to the first respondent. The
second respondent was
appointed to resolve the dispute through
arbitration. On 15 February 2016, the second respondent issued an
award. The applicant
before me was aggrieved thereby and launched the
present application.
Grounds
of Review
[5]
The grounds of review have not been succinctly set
out in the founding affidavit. This, parties, are encouraged to do
without being
discursive. Trawling through the founding and
supplementary affidavits, the following emerge as the grounds upon
which the applicant
seeks to have the award reviewed and set aside:
· The outcome is not one that a
reasonable commissioner can arrive at;
· He ignored and or failed to
apply his mind to the material facts placed before him (examples of
the evidence allegedly
ignored were given);
· Failed to appreciate the
evidence;
· Failed to consider that poor
work performance was sufficient to justify dismissal;
· He ignored evidence of four
witnesses and concluded that two other witnesses were relevant to
prove incompatibility;
· Failed to consider that
insubordination was sufficient reason to justify dismissal;
· He misconceived the enquiry;
· He assessed the evidence
wrongly by not taking into account conflicting versions and or
credibility and probabilities;
· Ignored or failed to apply
the Poor Work Performance Policy;
· Failed to take into account
the first respondent’s seniority and
· Wrongly concluded that there
was procedural unfairness.
Evaluation
[6]
What matters in review applications is the outcome
arrived at. If the outcome is one that a decision maker can
reasonably arrive
at, a court of review cannot interfere. If the
outcome falls within the bands of reasonableness, the award is
unassailable. The
task to determine whether a dismissal is fair or
not is that of a commissioner. In performing that task, a
commissioner is not
allowed to defer to the employer. It is not the
task of the Labour Court to determine whether dismissal for
incapacity is fair
or not. The task of the Labour Court is to
determine whether the decision involving the fairness of a dismissal
is one that a reasonable
decision maker may arrive at.
[7]
Whenever a judge considers the merits of the case,
he or she does so solely to determine whether the outcome is
justifiable in relation
to the material properly placed before a
commissioner. The merits are not traversed with a purpose to
substitute the findings of
the commissioner. The difference between
an appeal and a review ought to be maintained at all times. What
guides the reviewing
court is the decision (award) and the material
properly placed before the commissioner (the evidence). Further, the
task of the
reviewing court is to consider the grounds of review and
not the views expressed by the parties in their affidavits.
Therefore,
it is unhelpful to the court for parties to attempt to
summarize the record and or evidence tendered in their respective
affidavits.
[8]
In a recent
judgment of
Duncanmec
(Pty) Ltd v Gaylard N.O and others
[1]
,
the
Court reaffirmed the position thus:
“
[41]
Sidumo
cautions against the blurring of the distinction between appeal and
review and yet acknowledges that the enquiry into the reasonableness
of a decision invariably involves consideration of the merits. So as
to maintain the distinction between review and appeal this
Court
formulated the test along the lines that unreasonableness would
warrant interference if the impugned decision is of the kind
that
could not be made by a reasonable decision-maker.
[42]
This test means that the reviewing court should not evaluate the
reasons provided by the arbitrator with a view to determine
whether
it agrees with them. That is not the role played by a court in review
proceedings. Whether the court disagrees with the
reasons is not
material.
[43]
The correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement
if there are
reasons supporting it. The reasonableness requirement protects
parties from arbitrary decisions which are not justified
by rational
reasons
.”
[9]
In
considering the applicant’s grounds of review, it is important
to note that if the commissioner has determined the principal
issue
and gave the parties a fair opportunity to put up their respective
cases, a judge cannot substitute an outcome simply because
he or she
would have arrived at a different outcome. It is by now trite that an
employer can only justify a dismissal by proving
the reasons that led
to a dismissal. In
casu
,
it is common cause that poor work performance and insubordination
were not the reasons that led to the dismissal of the first
respondent
[2]
.
Accordingly, the dismissal of the first respondent cannot be
justified with reference to poor work performance and
insubordination.
[3]
[10]
It must follow axiomatically that the ground that
the second respondent failed to find justification of the dismissal
with reference
to poor work performance and insubordination should
fail. He was not obliged to. The reason why the first respondent was
dismissed
is that she was found to be incompatible. If the applicant
failed on a preponderance of probabilities to show that the first
respondent
was incompatible, then the dismissal was not for a fair
reason.
[11]
Failure to
apply one’s mind entails taking into account irrelevant
considerations and ignoring the relevant ones. The focal
point for
the second respondent was whether the first respondent was
incompatible or not. Incompatibility arises in a situation
where
there has been a breakdown in the employment relationship because
inter-personal relationships are tense, conflictual or
lacking in
harmony. The golden rule is that prior to reaching a decision to
dismiss, an employer must make some sensible, practical
and genuine
efforts to effect an improvement in interpersonal relations when
dealing with a manager whose work is otherwise perfectly
satisfactory.
[4]
[12]
The
offending employee has to be advised what conduct allegedly causes
disharmony, who is upset by the conduct, and what remedial
action is
suggested to remove the cause of the disharmony. A reasonable period
must be allowed for the employee to make amends.
Dismissal may be
appropriate only where the employee’s eccentric behaviour is of
such a gross nature that it causes consternation
and disruption in
the workplace. The employee must have been properly warned or
counselled. The incompatibility must be one that
is irremediable
[5]
.
[13]
Almost 24
years ago, the Labour Appeal Court (LAC), as it then was constituted,
in
SA
Quilt Manufactures (Pty) Ltd v Radebe
[6]
had the following to say:
“
We
are of the view that the court below was correct in finding that the
procedure adopted by the appellant in dismissing the respondent
was
inadequate and unfair. However, the facts would seem to indicate that
the appellant may well have had grounds to terminate
the employment
of the respondent on account of the unrest that developed in its
workforce as a result of the animosity towards
the respondent.
However, it adopted the wrong procedure and thereby treated the
respondent unfairly.
[14]
The leading
judgment emanating from this court
[7]
on the subject seem to be that of
Jabari
v Telkom SA (Pty) Ltd
[8]
where this court said the following:
“
In
order to prove incompatibility, independent corroborative evidence in
substantiation is required to show that an employee’s
intolerable conduct
was
primarily the cause
of the disharmony…
[15]
Might I add, where necessary, an employer must
invoke and or insist on the internal grievance policy. There are many
instances where
lethargic employees may label a results driven
manager as being incompatible. The cause of disharmony in such
instances would be
the insistence on results and lack of shoddiness.
The conduct of insisting on diligence cannot be an intolerable
conduct. The conduct
must be one departing from a recognized,
conventional, or established norm or pattern. There must be a clear
causal link between
the disharmony and the departing conduct. Where
there is no evidence that the conduct is the cause of the disharmony,
then an employer
must fail. The evidence of Samodien was nothing else
but a litany of acts of misconduct and poor performance. She did not
show
that there was disharmony caused by the first respondent. The
same goes with the evidence of Holding. Lotter’s evidence was
no different.
[16]
It is also clear that what Ramothwala was
investigating was not necessarily the cause of the disharmony but the
litany of acts of
misconduct and poor performance as presented to her
by Samodien. That was a wrong procedure adopted. Similarly, Dolo was
effectively
conducting a poor performance hearing as opposed to
determining whether the conduct of the first respondent was the cause
for the
disharmony. In
SA Quilt supra
,
the LAC said:
“
It
was correctly pointed out in the judgment
a
qou
that if a worker behaves in such a manner that he or she is
incompatible with the other staff, that worker can be dismissed.
There
must be, however,
a
proper inquiry to establish that the fault lies with the worker
.
Mere incompatibility caused by other workers does not justify the
unfair treatment of the worker who cannot get on with the others…”
[17]
The investigation by Ramothwala and the enquiry by
Dolo was not focused on whether the fault of disharmony lies with the
first respondent
but on whether the first respondent is a performer
or not. Such is a wrong enquiry. For the reasons set out above, there
is no
basis for me to conclude that the decision by the second
respondent that the dismissal of the first respondent is unfair is
one
that a reasonable decision maker may not arrive at.
[18]
Turning to
the remedy. I am unable to fault the remedy of reinstatement with
backpay. Having found that the dismissal is substantively
unfair,
unless the exceptions exist, the remedy of reinstatement cannot be
denied. The only possible exception applicable to this
matter is one
in section 193 (2) (d) – the circumstances surrounding the
dismissal are such that a continued employment relationship
would be
intolerable. Intolerability is not based on views of other employees
but based on sufficient evidence that the trust relationship
is
broken and is irreparable. In
casu
,
the Human Resources Business Practitioners merely expressed their
frustrations, which is not sufficient to deprive the first respondent
of her primary remedy
[9]
.
[19]
In the result, I make the following order:
Order
1.
The application
for review is dismissed.
2.
The applicant is
to pay the first respondent’s costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances
For the Applicant: M G Maeso of
Shepstone & Wylie, Sandton.
For
the first Respondent: X Njokweni of Knowles Husain Lindsay Inc,
Sandton.
[1]
CCT 284/17
[2018] ZACC 29
13 September 2018
[2]
Paragraph 101 of the findings of Dolo reads: Given the
aforementioned facts, it is fair to confirm that Mrs.
Mohammed-Padayachee
is incapacitated due to incompatibility and can
no longer be trusted in her role. Keisha is dismissed with immediate
effect with
1-month notice pay.
[3]
ABSA Brokers (Pty) Ltd v
Moshoana NO and others
[2005]
10 BLLR 939 (LAC).
[4]
Lubke v Protective Packaging (Pty) Ltd (1994) 15 ILJ 422 (IC).
[5]
Wright v St Mary’s Hospital [1992] 13 ILJ 987 (IC).
[6]
[1994] 15 ILJ 115 (LAC).
[7]
Quoted with approval in Samancor Tubatse Ferrechrome v MEIBC &
others [2010] 8 BLLR 824 (LAC).
[8]
[2006] JOL 17475
(LC).
[9]
See SARS v CCMA (CCT19/16)
[2016] ZACC 38
(8 N0vember 2016);
Amalgamated Pharmaceuticals Ltd v Grobler NO & others (2004) 25
ILJ 523 (LC) para 13 and New Clicks SA
(Pty) Ltd v CCMA & others
(2008) 28 ILJ 402 (LC) paras 11 and 17.