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[2018] ZALCCT 8
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Mmola v Commission for Conciliation, Mediation and Arbitration and Others (C477/2014) [2018] ZALCCT 8; [2018] 8 BLLR 822 (LC); (2018) 39 ILJ 1793 (LC) (29 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C477/2014
In the
matter between
TOLO
SEAGELA MMOLA
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
MR
ANTON A CRAFFORD (COMMISSIONER )
Second Respondent
OLD
MUTUAL (PTY) LTD GROUP SCHEMES
Third Respondent
Heard:
7 December 2017
Delivered: 29 March 2018
JUDGMENT
RABKIN-NAICKER J
[1] This
is an opposed application to review the amount of compensation
awarded by the second respondent (the Commissioner) for
the
substantively unfair dismissal of the applicant. The applicant also
seeks to review the award on the basis that the Commissioner
should
have found his dismissal to have been procedurally unfair. The Award
under WECT 4887-14 reads as follows in so far as the
remedy it
provides is concerned:
“
REMEDY
FOR THE UNFAIR DISMISSAL
31.
The applicant sought compensation of twelve months for the unfair
dismissal. Ordinarily the
Labour Relations Act of 1995
as amended
requires that if the Applicant’s dismissal is found to be
substantively unfair, reinstatement should be considered
as the
primary relief. This has also been supported by Labour Court
judgments. However, we have to consider that the applicant
has been
found guilty of charges of misconduct, b
ut that the employment
relationship had not broken down irretrievably at the time of his
dismissal. One has also to consider that
Tolo has aggravated the
relationship between himself and the respondent by posting defamatory
information towards management and
Old Mutual. This makes, in my view
the option of reinstatement untenable, as argued by the respondent,
and that compensation in
these circumstances is justified. Taking
into account the evidence presented, the findings of guilt, the
nature of misconduct and
the procedural fairness, Tolo’s
continued unemployment, I believe it would be just and equitable to
award Tolo 3 month’s
compensation. This amounts to R5130.00 x 3
months= R15,390.00”
[2]
It is evident from the transcribed record of the arbitration that the
Applicant did not ask for reinstatement. The record reads
as follows:
“
COMMISSIONER:
Ja What do you want me to consider? Do you want me to consider the
reinstatement, reemployment, are leaving it over
to my description
(sic) for compensation? If you can just help me?
APPLICANT:
Yes, or the compensation because the reinstatement, as I as being a
victim to the company it’s going to be worse
if, let’s
say, reinstatement should be granted, which I doubt it, so
reinstatement, no.
COMMISSIONER: Okay.
APPLICANT: Yes, my focus
is on compensation.
COMMISSIONER:
Okay, and what does that mean, what does compensation mean?
APPLICANT’S
INTERPRETER: One year compensation.”
[3]
It appears
ex facie
the Award that the Commissioner, despite
the clear indication from the applicant that he did not seek
reinstatement, was of the
view that he needed to consider whether
reinstatement was a tenable remedy. In other words his understanding
of the law was to
the effect that even where an employee believes the
employment relationship has broken down and therefore only seeks the
solatium
of monetary compensation for his unfair dismissal, it is
still necessary to evaluate whether the ‘primary remedy’
should
be granted. That this is a mistake of law is evident from the
clear working of
section 193(2)
of the LRA which reads:
“
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless-
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a continued
employment relationship
would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the employee;
or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.”
[4]
In
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
[1]
the
Court, per Zondo DCJ, stated:
“
[135]
Once the Labour Court or an arbitrator has found a dismissal unfair,
it or he is obliged to consider which one of the remedies
listed in
s
193(1)
is appropriate, having regard to the meaning of
s 193(2).
Considering both the provisions of
s 193(1)
and
s 193(2)
is important
because one cannot adopt the attitude that dismissal is unfair,
therefore, reinstatement must be ordered. The Labour
Court or an
arbitrator should carefully consider the options of remedies in
s
193(1)
as well as the effect of the provisions of
s 193(2)
before
deciding on an appropriate remedy.…”
[5]
The Commissioner further considers aggravating conduct by the
Applicant which occurred after he was dismissed (i.e. the postings
he
put on facebook about staff members). Such consideration occurs as
part of his irrelevant enquiry as to whether the employment
relationship had broken down. It is unclear if this issue affected
his discretion in deciding the amount of compensation he awarded.
[6]
The charges for which the applicant had been found guilty and
dismissed, as set out in the Award, were that: “
in that on
or around about the 24
th
of February 2014
(Tolo) you failed to report to work without the necessary permission
granted; and (Tolo) you failed to follow
a reasonable and lawful
instruction by the manger to inform them that you won’t be at
work”.
Both the Charges were described as “Gross
Misconduct”. The applicant had been ‘called’ to
search for the
bones of his cousin who had disappeared some years
earlier in Limpopo.
[7]
In his review application to this Court, the applicant targets the
finding of the Commissioner that his dismissal was procedurally
fair.
The main focus of this ground was the failure of the employer to
provide a Sepedi interpreter for him at the disciplinary
hearing,
although he averred he had requested one. The Commissioner reasoned
as follows:
“
15.
This brings one to the reasonableness of Tolo’s request and
whether the lack of an interpreter prejudiced Tolo in his
inquiry to
make it procedurally unfair. Old Mutual argued that not only is its
business conducted in English, Tolo was competent
in English, have
passed English as a second language in his senior certificate and
obtained 70-79% in English creative writing
at INTEC. It is quite
apparent that the position Tolo holds as a Sales Agent would require
him to be able to speak English and
it would be reasonably expected
that he could understand and speak English. Particularly with his
scholastic achievements. Even
during these proceedings, even though
Tolo argued that he was not competent in English he only utilized the
CCMA Interpreter minimally
and conducted himself in more than
acceptable English.
I
am persuaded and as reflected above in terms of Schedule 8 (4), Tolo
was reasonably able to understand the charges against him
and able to
defend himself. I do not believe that Tolo suffered any prejudice in
this regard.”
[8]
In fact it was only in the Labour Court that the Applicant was
provided with a Sepedi interpreter. At the CCMA he was provided
with
an interpreter who could interpret in Sesotho and Tswana but not in
Sepedi. This distinction between our different languages
does not
appear seem to have struck the Commissioner. In addition he
referred to Schedule 8(4) of the LRA in his analysis
quoted
above, which reads as follows:
“
(1)
Normally, the employer should conduct an investigation to determine
whether there are grounds for dismissal. This does not need
to be a
formal enquiry. The employer should notify the employee of the
allegations using a form and language that the employee
can
reasonably understand. The employee should be allowed the opportunity
to state a case in response to the allegations. The employee
should
be entitled to a reasonable time to prepare the response and to the
assistance of a trade union representative or fellow
employee. After
the enquiry, the employer should communicate the decision taken, and
preferably furnish the employee with written
notification of that
decision.”
[9]
The Commissioner’s reliance on the Schedule to conclude that
the applicant was ‘able to defend himself’ is
bad in law.
Clause 8(4) deals with notification of the charges in a language that
an employee can reasonably understand. It does
not deal with whether
an employee is able to defend himself in a language other than his
mother tongue.
[10]
In the minutes of the first disciplinary hearing dated 10 October
2014, contained in the record before the Commissioner, the
following
is recorded:
“
Anthea
ask Tolo if he has sufficient time to prepared for his case, he said
No he is not prepared and he only had 3 days to prepare,
according to
Tolo is supposed to be 5 days.
Tolo feels it was just
handed over
The
reason he presented was that his language (sipedi) (sic) was
comfortable for him and he can express himself better in
his own
language.
Chantell said that the
business language is English…..”
[11]
The disciplinary hearing was held a day later despite the concerns
raised by the applicant in the minutes referred to above.
Those
minutes also record one ‘Anthea’ the Senior Manager and
Chairperson of the hearing as follows: “Anthea
suggested that
Tolo can bring his interpreter to the next hearing.” It was the
evidence of Mr Jacques Singleton, the Chairperson
of the disciplinary
hearing on the 11
th
October 2014, that he read from the
Code at the hearing including the following:
“
If
you require to have proceedings translated into your home language,
you must notify me in advance…”
[12]
The transcript of the arbitration proceedings reflects the following
exchange during Singleton’s examination in chief:
“
RESPONDENT’S
REPRESENTATIVE: That’s fine thank you. Now, these rights were
they given to applicant?
WITNESS
3: Yes it was given to the applicant. He had no problem at the time,
given his (interruption)….
RESPONDENT’S
REPRESENTATIVE: When you say ‘given’ what do you mean?
WITNESS 3: Given that he
– the language barrier, because (interruption)
RESPONDENT’S
REPRESENTATIVE: Was it read to him, or….?
WITNESS
3: It was read to him and he had no objection to that, because I
asked him does he feel comfortable, I could postpone it
to another
date. He said he had no problems with doing that, and I formed my own
opinion because he was speaking his – even
better than myself,
okay, and I gave him an opportunity for an interpreter as I said. I
gave him the whole code.”
[13]
The transcript also reflects the position taken by the third
respondent when it representative interrupted Mr Singleton’s
cross-examination stating the following:
“
RESPONDENT’S
REPRESENTATIVE: Commissioner, we’re getting into sheer –
this is irrelevance. The question-the issue
is – the issue has
been put on the table that there was a language problem. The reply
[that] has come back from two witnesses
is that on both occasions
yes, no dispute, he asked for a Sepedi interpreter, that’s not
in dispute. However, we –
both witnesses have come back and
already testified that on both occasions he was happy with English.”
[14]
In the Courts view, given all the above, the finding by the
Commissioner that the applicant’s dismissal was procedurally
fair was not one that a reasonable decision maker could reach. In
this Court, the third respondent insisted in its written submissions
that the applicant was not denied a Sepedi translator, as he never
requested one. In fact Mr Sass for the third respondent submitted
before me that the applicant was being frivolous in arguing that he
should have been able to have a Sepedi translator, as he was
proficient in English. He further argued that the applicant could not
rely on procedural defects in the disciplinary hearing since
an
arbitration is a hearing de novo. This is incorrect. It is precisely
the alleged defects in a disciplinary process that a Commissioner
must consider in coming to a finding on whether the dismissal was
procedurally fair or not.
[15]
In
Tonga
v ICA Group Ltd t/a Renown Meat Products
[2]
the Deputy President
of the Industrial Court stated, in dealing with procedural fairness
that:
“
[14]
Mr Meyer who appeared for the applicant voiced his dissatisfaction
with certain other features
of the enquiry, but of these
I regard the fact that the applicant was not accorded the services of
an interpreter as being the
more serious one. The right to have an
interpreter at the hearing or at a trial is a cardinal right which
cannot easily be waived
and in South Africa it is generally a right
exercised by black workers whose mother-tongue is a language other
than English or
Afrikaans. It is manifestly unfair to expect a
witness or an accused person to testify in a language in which he or
she is less
than proficient. (See J and R Piron Managing Discipline
and Dismissal (1992) at 15, 16 and Andrew Levy Rights at Work (1992)
at
73.) The respondent was aware of this particular employee's right
as it is itemized in the disciplinary checklist referred to above.”
[16]
In
Mabitsela
v Department of Local Government & Housing & others
[3]
,
the Court per Molahleli J stated as follows:
“
[16]
…. The right to interpretation is a key element of both the
right of access to courts and the independent impartial
dispute-resolution bodies as provided for in terms of s 34 of the
Constitution…”
[17]
It would appear that this concept was recognised in principle by the
third respondent, as it appears in its own Code. However,
it was not
respected in practice and the attitude taken by the third respondent,
(a major employer), to the issue in this Court,
was surprising.
[18]
I have considered that irrelevant considerations were taken into
account by the Commissioner in the way he dealt with the remedy
to be
awarded to the applicant in as far as substantive unfairness was
concerned, as well as his finding on procedural fairness.
I am of the
view that the award should be reviewed, set aside and substituted in
order that the applicant is compensated for both
the procedural and
substantive unfairness of his dismissal. In my view it is just and
equitable in all the circumstances of this
case, that he is
compensated in an amount equivalent to seven months of the salary he
earned at the time of his dismissal. I order
as follows:
Order
1.
The Award under WECT4889-14 is reviewed and set aside and substituted
as follows:
“
1.1
The dismissal of Tolo Seagela Mmola was procedurally and
substantively unfair.
1.2
Old Mutual (Pty) Ltd Group Schemes is to pay compensation to the
Applicant in an amount
equivalent to seven months compensation, being
an amount of Thirty Five Thousand Nine Hundred and Ten Rand
(R35 910.00).
1.3
The compensation is to be paid within 10 court days of this order.”
_________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances
For
the Applicant:
In person
For
the Third Respondent: Bowman Gilfillan Inc
[1]
(2016)
37 ILJ 313 (CC)
[2]
(1994)
15 ILJ 669 (IC)
[3]
(2012)
33 ILJ 1869 (LC)