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[2018] ZALCJHB 358
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Visser v Vector Logistics (Pty) Ltd and Others (JR 1020/16) [2018] ZALCJHB 358 (2 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case No:
JR 1020/16
In the matter
between:
MICHELLE
VISSER
Applicant
and
VECTOR LOGISTICS
(PTY) LTD
First Respondent
COMMON FOR
CONCILIATION, MEDIATION
Second Respondent
AND ARBITRATION
HLALELE MOLOTSI
N.O
Third
Respondent
Date heard: 23
May 2018
Date delivered:
02 November 2018
JUDGMENT
BALOYI
AJ,
Introduction
[1]
Two separate review applications were filed in challenge of the
arbitration award issued by Commissioner Hlalele Molotsi sitting
at
the Commission for Conciliation, Mediation and Arbitration (CCMA)
offices at Tshwane. In the award he found the dismissal
of the
applicant, Ms Michelle Visser (Visser) substantively unfair and
awarded her compensation equivalent to four months’
remuneration. The first respondent, Vector Logistics (Pty) Ltd
(Vector Logistics) filed the first review application at the Durban
seat of this Court challenging the findings made by the Commissioner
as well as the relief awarded. Ms Visser subsequently filed
a second
review application under the above case number at the Johannesburg
seat of this Court. At the instances of Ms Visser
an order was
obtained from the Johannesburg Court for the transfer of the Durban
case to Johannesburg. The matter is now proceeding
under the
Johannesburg case number and for purposes of this judgment the
parties will be referred to as cited in the Johannesburg
case.
[2] It
deserves mention at this early stage that a number of episodes,
accompanied by each party’s accusations towards another
regarding non-compliance with the rules, took centre stage in this
matter. This has in no doubt brought in some deviations from
the real
issues for determination due to a lack of co-operation between the
parties’ representatives. This overly technical
manner of
litigation should be discouraged particularly where parties have
legal assistance at their disposal. The court had to
sift through a
box filled with lever arch files to find what may be relevant for
purposes of dealing with this matter.
The
Chronology of events
[3]
Following the issuing of the arbitration award dated 12 May 2015
Vector Logistics filed a review application in the Durban Court
on 3
June 2015. On 26 February 2016 Vector Logistics served a record
in terms of Rule 7A (6). On 24 May 2016 Ms Visser filed
her review
application. On 23 June 2016 Vector Logistics filed a notice in terms
of Rule 7A(8). On 30 June 2016 Ms Visser filed
a notice of irregular
step wherein the issue of the lapse of the review application was
raised. On 4 August 2016 Ms Visser filed
an application seeking an
order declaring that the Vector Logistics review application had
lapsed.
[4] Ms
Visser proceeded with the serving of its notice in terms of Rule 7A
(8) on 01 July 2016 but only filed it on 19 August 2016.
On 18
July 2016 Vector Logistics filed an answering affidavit to Ms
Visser’s review application. On 01 August 2016
Vector
Logistics filed the condonation application for the late filing of
the record which Ms Visser opposed on 18 August 2016.
On 23 May
2017 the Court sitting in Durban granted condonation of the late
filing of the record and dismissed the application to
declare an
irregular step on the part of Vector Logistics. On 23 May 2017 the
application for transfer of the Durban matter to
Johannesburg was
granted.
[5]
The issue in dispute is the dismissal of Ms Visser by Vector
Logistics on 25 August 2014 following a guilty finding on charges
of
misconduct. Ms Visser referred an unfair dismissal dispute to the
CCMA which was ultimately arbitrated upon by the Third Respondent.
The
arbitration award
[6]
What came before the commissioner is that Ms Visser was dismissed
after a guilty finding on three charges. At the end of the
arbitration proceedings he found Ms Visser not guilty of committing
misconduct on the first two charges but found her guilty on
the
third. He found the dismissal substantively unfair, firstly,
that the sanction of dismissal was inappropriate and too
harsh, and
secondly, that Ms Visser’s colleague who committed a similar
misconduct was not dismissed.
[7] He
found the employment relationship to be capable of being restored
through training and instruction and that he was not bound
by the
disciplinary code which provided for dismissal as a sanction for the
misconduct in question. Further, in the award
he viewed Ms
Visser’s remarks made during the disciplinary hearing, that she
would not hesitate doing it again should the
opportunity arise as
lack of remorse. He made a finding that the remarks rendered the
employment relationship intolerable, thereby
limiting the relief
awarded to Ms Visser to four months’ remuneration.
[8]
Vector Logistics, as a Transport and Logistics Company, keeps goods
belonging to its clients at its warehouses, in furtherance
of its
distribution tasks and Ms Visser was stationed at one of these
warehouses. McCain, a client of Vector Logistics permitted
them
to dispose of its damaged stock by way of discounted sale to the
warehouse employees. The office of Ms Visser was administering
such sales and safe keeping of the proceeds of such sales. The
charges against Ms Visser emanated from her utilizing the
cash
collected from sales to provide loans to Vector Logistics’s
employees, namely Mr Singh and Mr Van Der Walt in the sums
of
R6 000-00 and R1 800-00 respectively.
[9] It
was common cause that Ms Visser did not follow HR procedures when
advancing these loans and therefore exposed Vector Logistics
to
financial risk, particularly since the funds in question belonged to
a client. Mr Singh and Mr Van der Walt acknowledged
taking the
loans from Ms Visser, and eventually settled same.
[10]
Ms Visser faced three charges. The first two charges Ms Visser was
charged with were gross negligence and derelictions of duty
for
failure to account on cash sales for damaged stock and selling of
stock on credit. On these two she was charged with her colleague
Mr
Neo Molwantoa, both were found not guilty, and Mr Molwantoa was not
dismissed. Ms Visser then faced a third charge as set out
below.
Vector Logistics did point out during the arbitration proceedings
that the third charge only related to Ms Visser.
[11]
Despite the evidence that the principle of inconsistency was not
applicable as Mr Molwantoa did not face the third charge,
the
commissioner nevertheless found Ms Visser’s dismissal unfair on
the basis that Vector Logistics failed to give reasons
for dismissing
Ms Visser and not Molwantoa.
[12]
The grounds upon which both review applications are sought are rooted
on the third charge which reads as follows:
“
3
Gross negligence in that you have exposed the company to financial
risk by borrowing/lending money out to staff from McCain cash
sales
without following company loan procedure”.
[13]
Ms Visser is seeking a review in so far as the relief awarded, that
is, reinstatement was an appropriate relief instead of
compensation.
The essence of her case is that the commissioner should not have
found her guilty at all. While admitting her
failure to follow
procedures, she maintained that it was out of necessity that she had
to lend monies to both Singh and Van Der
Walt who eventually paid
back such monies. The statement she made in the disciplinary hearing
was misconstrued.
[14]
The reason for the late filing of Ms Visser’s review is centred
around the Registrar’s advice to Ms Visser’s
attorney to
file a new review application in Johannesburg accompanied by a
condonation application because the Vector Logistics’s
review
application had lapsed. It is indisputable that Ms Visser’s
review application is approximately 11 months late.
Vectoristics’s
review application
[15]
In its grounds, Vector Logistics’s case is firstly rested on
the commissioner’s failure to apply his mind to the
seriousness
of the misconduct which he noted in his award exposed Vector
Logistics to financial risk. His decision is in this respect
attacked
for not taking into account Ms Visser’s blatant display of lack
of remorse. The second attack is on the commissioner’s
finding
of inconsistency based on comparison with Molwantoa who was not
dismissed while Ms Visser was dismissed. The commissioner
had,
despite evidence placed before him to the effect that Molwantoa did
not face the same third charge, failed to apply her mind
and found
the dismissal unfair on the basis of inconsistency. Thirdly the
decision made in the midst of contradictory findings
that the
misconduct rendered the employment relationship intolerable while on
the other hand it was restorable
.
[16]
It is notable that Vector Logistics’s review application as it
stands is unopposed. Ms Visser is however holding
an opposite
view, as pointed by Mr Ackerman in his arguments, that the opposition
is in fact contained in Ms Visser’s review
application.
Furthermore, a letter was written to the Vector Logistics’s
attorneys conveying applicant’s intentions
to filing a cross
review.
[17]
Be that as it may, I hold a strong view that this matter deserves to
be determined in a manner that will result in a ventilation
of all
material aspects of the dispute. In so doing, the Court has to look
at what was before the commissioner and whether he understood
his
mandate when determining the dispute between the parties. As pointed
out above, I am loathe to play a role in the mudslinging
exercises
between the parties’ representatives by ruling on all technical
points around accusations of non-compliance with
the rules and the
practice manual. In my view upholding or the dismissal of such points
have no bearing on the outcome of any of
the two review
applications. Without further labouring onto anything having to
do with these points, I see it necessary to
deal firstly with Ms
Visser’s review application.
[18]
In her own words she was always aware that the award was issued on 12
May 2015. In the absence of a specific averment
as to when she
received it, the court is compelled to assume that it was received on
the same date. The six weeks period therefore
expired on 23 June
2015. The review application was only filed on 24 May 2016. The
application is thus 11 months late. The explanation
for the delay is
solely rested on the advice given to her attorney that she should
file the review application in view of the lapse
of Vector
Logistics’s review application.
[19]
As to prospect of success she referred the court to another part of
her founding affidavit where merits of her case are canvassed.
In
essence she maintained that she is not guilty of charge 3 and the
finding of Vector Logistics was wrong in this respect. While
acknowledging not following the procedures, she denied placing them
in financial risk. Singh and Van der Walt did in any event
settle the
loans. The commissioner was supposed to have reinstated her,
alternatively, awarded her eight months’ compensation.
[20]
It is inescapable that the condonation application requires
attention. On this note it is thus of high importance to consider
whether there is a case made out for the granting of the condonation
application. The test for condonation is now undoubtedly
settled and I have elected to take guidance from the Labour Appeal
Court’s decision in
National Union of Mineworkers v Council
for Mineral Technology
[1]
where it was stated that:
“…
The
approach is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence
it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefore,
the
prospects of success and the importance of the case. These facts are
interrelated: they are not individually decisive. What
is needed is
an objective conspectus of all the facts. A slight delay and a good
explanation may help to compensate for prospects
of success which are
not strong. The importance of the issue and strong prospects of
success may tend to compensate for a long
delay. There is a further
principle which is applied and that is that without a reasonable and
acceptable explanation for the delay,
the prospects of success are
immaterial, and without prospects of success, no matter how good the
explanation for the delay, an
application for condonation should be
refused…”.
[21]
The merit of Ms Visser’s case is solely rested on the decision
of the commissioner being wrong for having found her guilty
on the
third charge as there was no proof that she did anything wrong and
therefore she was never grossly negligent. Her admission
to not
following procedure did not in any way imply that she committed
misconduct. In so far as condonation is concerned it remains
unassailable from the above
dicta
that an explanation for the
delay is at the top of the elements in the test for condonation. At
the same time the explanation has
to be considered with the merits of
the review application to determine if Ms Visser has shown any
prospect of success. The commissioner’s
decision is attacked on
the basis of wrongfulness
.
The concept of wrongfulness is
foreign to review applications as it has no place in the grounds set
out in section 145 of the Labour
Relations Act
[2]
(LRA) and the Constitutional grounds based on unreasonableness. I
find no reason to disagree with Vector Logistics that Ms Visser’s
explanation as well as her conduct post the issuing of the award
demonstrated any intentions of challenging it. Denial of guilt
in the
midst of her concessions that she had indeed violated the procedures,
reveals lack of prospects of success. On this
note it cannot be
said that Ms Visser has made a case warranting the granting of the
condonation application. Her review application
is bound to fail
under the circumstances.
[22] I
now turn to Vector Logistics’s review application which is
rested on two points, namely, the challenge to the findings
of
harshness of the sanction and inconsistency. In dealing with these
points the test for review of arbitration awards deserves
a visit.
The Constitutional Court in paragraph in
Sidumo & Another v
Rustenburg Platinum Mines
[3]
summarised the review test as follows:
“
To
summarise,
Carephone
held that section 145 of the LRA was suffused by the then
constitutional standard that the outcome of an administrative
decision
should be justifiable in relation to the reasons given for
it. The better approach is that section 145 is now suffused by the
constitutional
standard of reasonableness. That standard is the one
explained in
Bato Star
:
Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach? Applying it will give effect
not only
to the constitutional right to fair labour practices, but also to the
right to administrative action which is lawful,
reasonable and
procedurally fair”.
[23]
For convenience sake I wish to discuss the Labour Appeal Court case
of
Edcon v Pillemer No & Others
[4]
where Sangoni JA summarized in the facts of the case as follows:
“
The
so called ‘reasonable decision maker-test’ serves as a
basis for the decision in
Sidumo
.
If the commissioner made a decision that a reasonable decision maker
could not reach, he/she would have acted unreasonably which
could
then result in interference with the award. This in my view, boils
down to saying the decision of the commissioner is to
be reasonable.
To my understanding the dictum in
Sidumo
is not about shifting from the ‘reasonable employer test’
in favour of the so called reasonable employee test. Instead,
meaningful strides are taken to refocus attention on the supposed
impartiality of the commissioner as a decision maker at the
arbitration whose function it is to weigh all the relevant factors
and circumstances of each case in order to come up with a reasonable
decision. It is in fact the relevant factors and the circumstances of
each case, objectively viewed, that should inform the element
of
reasonableness or lack thereof”.
[24] I
must confess that there is a reason for this Court to also pay
attention to the facts of
Sidumo
. This court is sitting with a
matter characterized by failure to follow procedures. Post
Sidumo
the approach to review applications in terms of the test took a
major turn, thus placing more effort on Ms Visser to establish the
unreasonableness of the award. In other words, even if the reasoning
may not be good to a point that the Court would have ruled
differently sitting in the position of the commissioner as long as
the reasoning of the commissioner doesn’t bring about
an
unreasonable result, the award cannot be interfered with.
[25]
In
Fidelity Cash Management Service v CCMA & Others
[5]
the Labour Appeal Court (LAC) had in this respect held as
follows:
“
[98]
It will often happen that, in assessing the reasonableness or
otherwise of an arbitration award or other decision of a CCMA
commissioner, the Court feels that it would have arrived at a
different decision or finding to that reached by the commissioner.
When that happens, the Court will need to remind itself that the task
of determining the fairness or otherwise of such a dismissal
is in
terms of the Act primarily given to the commissioner and that the
system would never work if the Court would interfere with
every
decision or arbitration award of the CCMA simply because it, that is
the Court, would have dealt with the matter differently.
Obviously,
this does not in any way mean that decisions or arbitration awards of
the CCMA are shielded from the legitimate
scrutiny of the Labour
Court on review".
[26]
The LAC took this further in
Head of the Department of Education v
Mofokeng
[6]
where it was stated that:
“
The
court must nonetheless still consider whether, apart from the flawed
reasons of or any irregularity by the arbitrator, the result
could be
reasonably reached in light of the issues and the evidence. Moreover,
judges of the Labour Court should keep in mind that
it is not only
the reasonableness of the outcome which is subject to scrutiny. As
the SCA held in
Herholdt
,
the arbitrator must not misconceive the inquiry or undertake the
inquiry in a misconceived manner. There must be a fair trial
of the
issues”.
[27]
When considering Vector Logistics’s review application,
specifically at what was placed before the commissioner, Ms Visser
conceded to not having followed procedures and denied that she was
negligent nor exposed Vector Logistics to financial risks. Since
the
record shows that Molwantoa was not charged with charge 3, the
finding of unfairness based on inconsistency boils down to the
commissioner’s misconstruction of the inquiry he was required
to undertake.
[28]
In light of the unsustainability of the inconsistency claim, the
harshness of the sanction appears to be the remaining issue
which
vitiated the finding of unfairness of the dismissal. The
commissioner’s reasoning that this harshness is founded on
hopes of restoration of the employment relationship depending on
additional training and instruction to Ms Visser. It does not
appear
on any material placed before the commissioner that Ms Visser’s
commission of misconduct in question was precipitated
by a deficiency
in requisite skills or knowledge in performance of her duties. In the
absence of any material before the commissioner
that provision of
training and instruction would lead to an improvement of performance
of her duties, this once again points to
a misconstruction of the
nature of the enquiry he was tasked to deal with.
[29]
The commissioner was in fact caught up with Ms Visser’s
persistence of having done nothing wrong. This took him to the
extent
of making a finding that Ms Visser lacked remorse. His finding of
unfairness in this regard goes far more than the relevant
material
placed before him. It does not appear that Ms Visser had a sense of
acknowledgement that the misconduct was in deed committed
out of
mistake. The commissioner’s decision cannot in the context of
the
Sidumo
case be found to be that of a reasonable decision
maker. There exist reasons for the award to be interfered with.
[30]
Based on all factors dealt with above, the case is made in terms of
Vector Logistics’s application to review and set
aside the
award. The record is, in so far as relevant issues for determination
of the dispute, sufficient for the Court to making
a finding on the
fairness of the dismissal. The commissioner’s finding that the
dismissal was unfair is untenable. I am of
the view that the dramatic
exercises undertaken by the parties in this matter came out of their
own doing and any cost incurred
should be borne by the parties
themselves. This Court is therefore not inclined to make any cost
order in this regard.
[31]
In the premises the following order is made:
Order
1. The
arbitration award issued by the commissioner under case number GATW
12330-14 is reviewed and set aside and is substituted
with an order
that:
1.1
The Applicant’s dismissal is found to be substantively fair.
2.
There is no order as to costs.
M. M.
Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances
:
For the
Applicant: Advocate Ackerman
Instructed
by:
DBM Attorneys
For the First
Respondent: Mr Pretorius and Ms Govender of MacGregor
Erasmus Attorneys
[1]
(JA94/97)
[1998] ZALAC 22
(17 August 1998) at para 10.
[2]
66 of 1995, as amended.
[3]
[2007] 12 BLLR 1097
(CC) at para 110.
[4]
[2010] 1 BLLR 1 (SCA).
[5]
(2008) 3 BLLR 197
LAC at para 98.
[6]
(2015) 1 BLLR 50
LAC at para 31.