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[2018] ZALCPE 33
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SA Library for the Blind v Commission for Conciliation, Mediation and Arbitration and Others (PR 142/13) [2018] ZALCPE 33; [2018] 12 BLLR 1210 (LC); (2019) 40 ILJ 422 (LC) (28 August 2018)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT PORT
ELIZABETH
Of
interest to other judges
Case
no: PR 142/13
In
the matter between:
THE
SA LIBRARY FOR
THE
BLIND
First
Applicant
and
THE
COMMISSION FOR CONCILIATION,
First Respondent
MEDIATION
AND ARBITRATION
COMMISSIONER
AMON
NYONDO
(N.O.)
Second
Respondent
ALAN
GROOTBOOM
Third Respondent
Heard:
30 May 2018
Delivered:
28 August 2018
Summary:
(Review - dismissal - misconduct-
failure to take remedial steps to remedy performance deficiencies -
reneging on agreement to extend
probationary period - charge of
insubordination and failing to communicate with and report regularly
to CEO - arbitrator misconstruing
true nature of dismissal dispute -
procedural unfairness relating to framing of a charge which
prejudiced employee's ability to
anticipate the scope of the defence
he
needed)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is a review of an arbitration award
in
which
the arbitrator found that the dismissal of the third respondent,
Grootboom, for misconduct was procedurally and substantively
unfair
and
awarded
him
compensation
of 12 months'
remuneration.
[2]
There is also an opposed condonation
application for the late filing of Grootboom's answering affidavit.
The supplementary affidavit
was filed on 17 March 2014, but owing to
problems with the corresponding attorneys, the answering affidavit,
which his attorneys
thought had been filed,
albeit
significantly late, in August 2014
appears not to have been filed after all. This necessitating them
refiling it on 23 April 2015
and the attendant
delay is unjustifiable.
Back
g
round
[3]
Grootboom was appointed on 1 November
2011 for a 12 month probation period.
[4]
In the last month of his probation,
Grootboom filed a grievance against
the
director. Somewhat bizarrely, the grievance was laid at the request
of the Director himself, so that Grootboom's apparent complaints
about him could be properly
aired.
[5]
The
grievance hearing held on 3
October was chaired by
the
chairperson of the SALB, Judge Z Yacoob
.
There were a number of outcomes of that
hearing, of which some of the salient ones were: Grootboom was
expected to make a greater
effort to adapt and fit into the culture
of the organisation than
the
director had
to
make
to
accommodate Grootboom; the
Director
was expected to make a more concerted
effort to change the manner in which he engaged with Grootboom;
Professional counselling for
Grootboom was
to
be investigated to; unresolved disagreements between him and the
director would be referred to the audit committee.
[6]
Most importantly, because of
the poor working relationship and the
fact that Grootboom's permanent
employment was to be reviewed at the end of October, the chairman
decided that the confirmation,
extension or termination of
Grootboom's service would be considered at the board meeting
scheduled for 29
October
2012.
[7]
It was recorded at the grievance hearing
that the director proposed that Grootboom's probation be extended for
six months, as he
was not in
favour
of confirming his permanent employment at that stage. The
chairperson, said he would not make any recommendations to the
board
in this regard but expressed the view that, in his view, such an
extension was a reasonable proposal. The human resources
manager also
supported this view and expressed the opinion that it would take time
to arrange counselling for Grootboom and that
the remaining months of
his initial probation period would not be
enough to determine if he could fit in
with the organisational
culture.
Whether the
remaining
months would be
sufficient
to see
enough
progress had
been
made by
Grootboom
was also raised by
the
human resources director. The
minute
of the grievance meeting concludes with the following
sentence:
Grootboom
reiterated that he is opposed to the suggestion but said he will
abide by the decision of the board.
[8]
When the board meeting took place on 29
October, it was conveyed to Grootboom that the board had decided,
based on the outcome of
the grievance meeting, to extend his
probation by six months. Grootboom
was
not in a position to respond there and then to the board's proposal
despite his previous commitment to abide by the board's
decision.
When Grootboom's probation was discussed at the board meeting, the
chairperson of the board summarised the situation
and made the
following points:
8.1
The board was not in
a
position
at that stage to
confirm
his permanent appointment but was willing to extend his probation for
six months provided "that the terms of the agreement
that you
entered into is
complied with by you. In
other words, that you get professional help, that we pay for the
first four sessions, the trick is reported
as a professional person
given to us so that we can adjust basis for evaluating conferment or
otherwise."
8.2
The fact that a grievance has
been lodged against the
director was not held against him, but
the agreement reached in in the grievance meeting had been
taken into account.
8.3
The chairperson then specifically asked
Grootboom
:
(T)herefore
what we would like to know from you because in a sense a lot depends
on the extent to which you embrace the idea that
you will be here for
another six
months,
because if you
do
not
fully
embrace
the
idea
then
you start of the negative footing anyway. That's why we would like to
ask you, bearing in mind that we not in a position to
confirm
particularly in light of the fact that the minutes record that you
feel that you should not be extended,
how
y
ou
feel about bein
g
extende
d,
and do
y
o
u
t
hink it would hel
p
and
our
review
p
re
p
ared
to sta
y
on
those conditions. What is
y
our
feelin
g
about
it?
(Emphasis
added)
Grootboom
answered directly:
As
I previously said, I will abide by the decision of the board and I
will then, basically if the board decides that I will be extended,
I
will abide by that decision
.
The
chairperson obviously felt that Grootboom had not expressed his own
view on the wisdom of the proposal as such and asked:
But
if you were asked whether the board
should
extend you or not,
what would you say?
(emphasis
added)
Grootboom's
response to the question and the concluding exchange went like this:
Grootboom:
It's a difficult question.
Chairperson:
I know
Grootboom:
It is unfair for me to answer it.
Chairperson:
So you won't answer it?
Grootboom:
No
Chairperson:
Okay thank you very much. Anything else any other member of the board
wants to know? (No response) thank you, Grootboom.
We will continue
our discussions without you.
Grootboom:
Thanks.
[9]
In consequence of his unwillingness to
respond at the meeting, a letter confirming the
board's stance and requesting his
response to
the proposed extension of
the
probation until
30
April
2013 was
issued to
him
the
day after the board meeting. The letter
also advised Grootboom that when it convened again in February 2013
it would consider a
report from the Council and the director and if
things had not improved by then it would advise him of the board's
intention not
to confirm his permanent appointment.
Grootboom then
made it
clear
in
writing
that
he
did
not
accept the
extension of
his
probation.
[10]
Following
his
rejection of
the
proposal, the
proposed
counselling never
took place and a
disciplinary process was instituted
early in November 2012.
[11]
Grootboom was charged with two counts of
misconduct. The first was that he
allegedly failed
to
satisfactorily
report
to
his
senior
manager (the
director)
on work-related matters and failed to communicate with him on
strategic and other work-related matters. The second charge
was one
of insubordination in that, despite having previously agreed that he
would abide by board's decision to extend his probation
and to attend
a series of counselling sessions if
that
is
what the
board decided, he
blatantly
reneged on that commitment when the board took such a decision, by
refusing to accept it.
[12]
In
relation
to
the
first
charge, the
presiding officer of the disciplinary
hearing found
that
Grootboom had
failed
to
live
up
to
the
requirements of
his
position in so far as communicating
with, and reporting to the director was concerned. Despite
being
made
aware
of
his
weaknesses and
having
those brought to his attention, he made
no effort to improve. Even though the conduct complained of was more
in the form of unsatisfactory
work performance, it
was
nonetheless a
disciplinary offence and
he was guilty of it.
[13]
In relation to the second charge, the chairperson found, on the
undisputed minutes of that grievance hearing meeting, that
Grootboom
had indicated that he was opposed to the director's suggestion that
his probation be extended by six months, but nevertheless
had agreed
that he would abide by the board decision. The minutes of the board
meeting on 29 October also indicated that he repeated
this
undertaking, albeit reluctantly. However, later he failed to abide by
the undertaking. Although the presiding officer was
not convinced
that this amounted to insubordination, it nonetheless amounted to a
failure to honour an undertaking given to the
employer and amounted
to serious misconduct.
[14]
The presiding officer went on to consider the question of sanction.
He decided to recommend Grootboom's dismissal and dismissed
the
suggestion by Grootboom's representative that the original proposal
of an extended probation be adopted as an alternative,
because
Grootboom himself had shown no positive interest in that option and
had previously rejected it. In the light of Grootboom's
negative
attitude in that respect, a
further six months of extended
probation with counselling was unlikely to change the situation.
The
arbitration award
[15]
It is noteworthy that the arbitrator described his task as having to
decide whether Grootboom's dismissal "relating to
probation"
was fair and not, whether his dismissal for misconduct was fair.
[16]
The arbitrator found that the SALB had not complied with item 8(h) of
Schedule 8 of the LRA Code of Good Practice: Dismissal.
That
provision states that, an employer may only decide to dismiss an
employee or extend the probationary period after the employer
has
invited the employee to make representations and has considered any
representations made. He found that the extension of the
probation
had been unilaterally decided by the SALB without giving him an
opportunity to make representations. It is clear that
this was the
crux of the arbitrator's reasoning on the fairness of the dismissal.
As he stated: "This was a fatal anomaly
on the part of the
respondent, and it confirmed that they did not need to be reminded
about the obligation because they did not
want to honour it. They
were determined they would discuss the matter in the absence of the
applicant."
[17]
Further, the arbitrator found that the
assessments of Grootboom's performance for the last two quarters of
his employment were not
genuine because the director had simply
filled in the assessment form and asked him to comment on them if he
wished, without holding
any discussion with him about issues where
there was a divergence of opinion in the assessment. The arbitrator
was also clearly
of the view that because the proposed counselling
for Grootboom, which had been contemplated in
the October grievance hearing had not
been arranged before the end of the fourth quarter of his employment,
this was a further indication
that the assessment process was not a
genuine one.
[18]
In addition, the arbitrator found that
Grootboom's rejection of the extension was
not
improper because the
extension was unfairly imposed on
him
in
the absence of giving him a chance to
make representations despite the fact that he had indicated he was
opposed to agreeing to
an extension.
[19]
The arbitrator also found that the
presiding officer at the enquiry had formulated his own charge and
found Grootboom guilty of
that. This was
a reference to the presiding officer
deciding that Grootboom's conduct
could
not be characterised as insubordination but that his failure to
honour the undertaking given amounted to misconduct of a serious
nature. The arbitrator also found that the presiding officer had
decided that Grootboom was not guilty of the first charge of
frequently failing to report satisfactorily to his senior manager on
work-related matters. The arbitrator does not explain his reasoning
in this regard but it might be explained by the somewhat
contradictory reasoning of the presiding officer who had conclude
d
:
"I
am satisfied then on
a
balance
of probabilities that
Grootboom,
throughout his tenure at the library, failed to live up
to the requirements of his position in
so far as communicating with and reporting to director is concerned,
that he was aware of
his weaknesses in
this regard
,
having had
them brought to his attention at each
assessment,
and that he made no
effort to im
p
rove
.
In the circumstances
althou
g
h
I am not satisfied that this amounted to misconduct.
I am satisfied falls under the
g
eneral
descri
p
tion
of unsatisfacto
ry
work
p
erformance
which is a disci
p
lina
ry
offence
.
Therefore he is found guilty of that offence."
[20]
The
arbitrator further
found
there
was
also
no
evidence
that
Grootboom
was not performing his CFO function effectively and if the SALB had a
different view it could have been sorted out by
inviting him to make
representations
before
considering whether to extend his probation,
instead
of which it hauled him before a disciplinary enquiry. Added to this
was the
fact
that the SALB had received good audit reports during Grootboom's
tenure as the CFO and the stigma of being dismissed for failing
to
perform adequately during his probation would make it difficult for
him to find employment in
an
environment regulated by the Public Finance Management Act
1 of
1999
.
[21]
Nevertheless, the arbitrator accepted
that the strained interpersonal relationship between Grootboom and
the director made reinstatement
impracticable. Given that this was
the only reason he did not reinstate the applicant and the fact that
it was unlikely as a public
servant that
he would be
re-employed
without
special
approval
by
the
relevant
executive
authority, the arbitrator decided that
an award of 12 months' remuneration as compensation
was
appropriate.
Grounds
of review:
[22]
The SALB attacks the arbitrator's award
on the ground that it was unreasonable and accordingly defective
within the meaning of the
term in
section 145
(2) (ii) of the
Labour
Relations Act, 66 of 1995
. The alleged flaws
it
identified in
the
arbitrator's reasoning included:
22.1
The arbitrator's finding that Grootboom
had no opportunity to make representations to the board. This finding
is directly at odds
with the minutes of the
board meeting.
22.2
The arbitrator ignored the fact that
Grootboom had agreed to accept an extension of his probation if that
is what the board decided.
What the minutes of the meeting clearly
reflect is that Grootboom said that he would abide by decision of the
board if it decided that his probation
would be extended, but he would not commit himself to agree that it
should
be
extended. Similarly, when the issue of proposing an extension of his
probation was broached in
the
grievance meeting, the minutes record
that Grootboom "reiterated that he is opposed to the suggestion
but said he will abide
by the decision of the board."
22.3
The arbitrator misconstrued the charges
the presiding officer had considered. The Presiding Officer had
correctly found that Grootboom's
performance was substandard and he
had reneged on an undertaking to accept the board's decision which
constituted misconduct. In
any event, the presiding officer
justifiably found that there would be no point in extending the
probation as Grootboom's representative
had proposed as an
alternative to dismissal, because Grootboom had indicated he was
opposed to
it.
22.4
The
arbitrator misconstrued the
nature
of
the
arbitration
which entailed a hearing
de
novo
and not a consideration of the
reasoning of the presiding officer.
22.5
The
arbitrator's alleged failure to consider
the
fairness
of
the
dismissal in the light of the following
facts led the arbitrator to misconceive the nature of the true
enquiry, which was whether
the applicant could be expected to
continue to
employ a
senior manager who had not
met the required standards but who
simultaneously refused to accept an extension of
his
probation period subject to counselling:
22.5.1
The senior position held
by Grootboom, which was second only to the
Director.
22.5.2
The fact that Grootboom
was on probation.
22.5.3
That
he
had
been warned and
counselled previously about
his managerial weaknesses.
22.5.4
That Grootboom had
accepted the board would decide on his probation but had then reneged
on
that
undertaking.
22.5.5
Grootboom in any event
declined to make representations to the board on the question of his
probationary status, and
22.5.6
The
relationship was
irreparable.
[23]
The SALB further contends that in
finding that Grootboom's dismissal was procedurally unfair, the
arbitrator failed to appreciate
that he was supposed to assess the
fairness of the
disciplinary
enquiry and not base his finding on the conduct of the board of
directors meeting in October. It is noteworthy in this
regard that,
at the commencement of the arbitration, Grootboom's stated complaint
about procedural fairness related to
the
grievance hearing not being conducted as per the grievance procedure
because it was not concluded and the disciplinary process
had been
conducted without his employment status being
defined.
[24]
The SALB also argues that when deciding
on the extent of compensation, the arbitrator only took account of
Grootboom's prospects
of finding alternative employment and based
that entirely on his own speculation without any evidence being led
on
the
issue. The arbitrator also ignored the fact that Grootboom's alleged
unforthcoming attitude related to his wider managerial
functions and
not the performance of his core duties as a CFO. He also allegedly
failed to
take
account of the
fact
that the breakdown in the employment relationship could not be
solely attributed to
the applicant.
[25]
In addition, the arbitrator failed to
consider what the applicant could reasonably have done when Grootboom
refused to accept an
extension of his probationary period subject to
him undergoing communication skill training at the applicant's
expense.
[26]
Lastly, in emphasising the fact that
Grootboom ought not to have been dismissed at the end of his
probation without hearing his
representations, the arbitrator failed
to appreciate that the board wanted to extend his probation.
Evaluation
[27]
It is now a well-established principle
that in order to succeed with a review on the basis of flaws in the
reasoning of an arbitrator,
the applicant must demonstrate not only
that such flaws existed but that the outcome of the arbitration would
necessarily have
been altered if those flaws did not exist:
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling
indication that the
arbitrator misconceived the enquiry. In the final analysis, it will
depend on the materiality of the error or
irregularity and its
relation to the result. Whether the irregularity or error is material
must be assessed and determined with
reference to the distorting
effect it may or may not have had upon the arbitrator's conception of
the enquiry, the delimitation
of the issues to be determined and the
ultimate outcome. If but for an error or irregularity a different
outcome would have resulted,
it will ex hypothesi be material to the
determination of the dispute. A material error of this order would
point
to at
least a prima facie unreasonable result. The reviewing judge must
then have regard to the general nature of the decision in
issue; the
range of relevant factors informing the decision; the nature of the
competing interests impacted upon by the decision;
and then ask
whether a reasonable equilibrium has been struck in accordance with
the objects of the LRA. Provided the right question
was asked and
answered by the arbitrator, a wrong answer will not necessarily be
unreasonable. By the same token, an irregularity
or
error material to the
determination of
the
dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the issues, with the result
that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted from the correct path
in the conduct of the
arbitration and as a result failed to address the question raised for
determination.
[1]
[28]
Undoubtedly, Grootboom's dismissal for
misconduct would not have arisen as early as it did if he had not
refused to accept the extension
of his probation period subject to
him undergoing professional counselling to assist him to fit in with
the organisational culture
and to be more resilient in working with
the director's management style. Once Grootboom refused to accept the
decision of the
board to extend his probation subject to counselling,
it unavoidably raised the question whether or not the employment
relationship
could continue. Grootboom acknowledged as much in
his
own
evidence when he
said
that
his refusal to
accept
the
board's
decision to extend his probation meant that either his position would
be made permanent or his contract would be terminated.
He clearly
foresaw the consequences of his
volte
face.
The SALB decided that, since
Grootboom did not accept his continued status as a probationer it
would
address the problems which had
arisen using disciplinary proceedings. It could have decided to
address the problem as simply a work
performance issue, but it would
have been difficult to address Grootboom's about-face on the
agreement on the way forward as a
work performance issue, when it
concerned an act of bad faith on his part.
[29]
Because the board chose to deal with
Grootboom's conduct as a disciplinary matter and to dismiss him on
grounds of misconduct, the
arbitrator was obliged to evaluate the
fairness of the dismissal in the
same
terms. Instead, he effectively decided the fairness of the dismissal
on the basis whether or not Grootboom had been fairly
dismissed as if
he was
an
employee still on probation. This led him to find, amongst other
things, that the proceedings of the board meeting at which
Grootboom's extended probation was debated did not constitute a fair
hearing. What the arbitrator was
supposed
to
have
evaluated when
considering procedural fairness was the
subsequent
disciplinary
enquiry. The arbitrator's misconstruction of
the issue he had to address constituted
a fundamental misdirection by the arbitrator causing him to ask the
wrong questions and
arrive at answers he was not required to.
Consequently, he also failed to determine the real nature dispute he
was required to
determine.
[30]
Even if he had correctly treated Grootboom's dismissal as a matter of
poor performance involving a
probationer, it is difficult to understand how the arbitrator could
have concluded that Grootboom was
not given an opportunity to make
representations to the board. Grootboom had been expressly invited
and even pressed by the chairperson
of the board to express his
views, not only on whether he would accept the outcome of its
deliberations,
but
also whether he
personally
believed his probation should be extended or not. He firmly and
unequivocally declined that invitation. In his testimony
at the
arbitration, he claimed that he needed legal advice before answering
that
question,
but
at
the time
he
was asked he
never
even hinted that this was the reason for his reticence, nor did he
say he would like a further opportunity to think about
his response
to the question before committing himself. Grootboom was the
second most senior manager after the
director. He was not a junior employee afraid to speak his mind. It
is difficult to understand
why he could not articulate his reason for
refusing to
answer the question asked by
the chairperson, beyond merely saying that it was unfair for him to
answer it.
[31]
This narrative also relates directly to the second charge which led
to Grootboom's dismissal. In this regard, I agree it was
not
unreasonable of the
arbitrator
to
conclude
that
the
presiding officer of
the
disciplinary hearing had reformulated
the charge of insubordination relating to Grootboom's failure to
honour the undertaking he
made at the disciplinary enquiry, and
confirmed at the board meeting, that he would abide by board's
decision on the extension
of his probation. In the circumstances,
Grootboom rightly could have been surprised to have been found guilty
of another form of
misconduct in relation to the second charge. In my
view, the arbitrator cannot be faulted for concluding that the charge
for which
Grootboom was found guilty, namely of reneging on an
agreement, was of a different character to a charge of
insubordination, which
concerns a willful failure to obey an
instruction and
entails an
implicit challenge to
managerial authority. In so far as this
act of bad faith played an important part in the decision to dismiss
Grootboom, it is difficult
for the applicant to contend that he ought
to have been prepared to meet that charge as an alternative to a
charge of insubordination.
Even
though the insubordination
charge was predicated on his failure to
abide by the commitment to extend his probation, it would not have
been obvious on the face
of it that the description of factual basis
for the charge could support a finding of insubordination
.
If the board had not labelled the charge
as one of insubordination and merely set out the facts on which the
charge was based or
reframed it as an act of bad faith, he would been
made aware that a defence based on the principles of insubordination
would not
be enough. Grootboom said as much in his evidence when he
stated that he could not understand how he could be charged with
insubordination
when he had not been given any instruction. Moreover,
Grootboom contended in
his
evidence at
the
arbitration that
if
the
extension of his probation had been an instruction, it made no sense
why he was asked to sign whether or not he accepted the
board's
decision and its conditions concerning the six month extension of his
probation contract.
[32]
I am well aware of the principle that charges in disciplinary
proceedings need not be framed with the precision of criminal
charges
and that the
factual basis of a charge
of acting in bad faith was set out in describing the charge of
insubordination, but by stating that such
conduct amounted to
insubordination and bearing in mind the fact that the definition of
insubordination has been the subject of
countless judgments defining
its scope and meaning
[2]
,
it was not unreasonable for Grootboom to believe he could not be
found guilty of insubordination based on the factual basis set
out in
the charge. This might have led him to believe he did not have to
defend himself against a charge of breach of trust, or
acting in bad
faith. In my view, this was sufficient basis to justify the
arbitrator's finding that Grootboom's dismissal was
procedurally unfair.
[33]
Nonetheless, in treating his dismissal
as
the
dismissal of a
probationer,
the arbitrator simply failed to address the fact that Grootboom had
expressly agreed to
accept
an
extension
of
his
probation if
the
board
decided it
should
be extended, and then effectively repudiated that agreement by
refusing to accept an extension of his probation, which necessarily
would have raised the question whether his full time employment was
justified based on his performance to date. The board felt
he
had not demonstrated his suitability and
wanted to give him a further opportunity to do so with assistance. He
first accepted then
rejected that arrangement after the board had
decided on that course of action on the understanding he would abide
by it.
[34]
It
is
true
the
board could, at
that juncture, have held an enquiry to
determine if his appointment should be confirmed or whether his
service should be terminated
on the basis that he had not performed
satisfactorily. It decided instead to address his conduct not on the
basis of an enquiry
into his capabilities, but whether his poor
performance amounted to misconduct because he willfully failed to
make any effort to
address his shortcomings and
whether, together with his
ma/a
tides
in
reneging on
the agreement, this warranted his
dismissal. The arbitrator decided to view the substantive merits of
the case through the prism
of a dismissal for poor performance of a
probationer, because he obviously believed that is how the board
should have dealt with
the matter. However, what
the
arbitrator ought to
have done
instead
was to take the reasons given by the board at face value and
determine if it could justify Grootboom's dismissal on grounds
of
misconduct,
even
if
it
could
have
dealt
with
the
problem
differently.
This
was a material misdirection causing him
to undertake an enquiry he was not supposed to undertake. It resulted
in him making a finding
of substantive unfairness
evaluated
against
a
ground
of
dismissal
the
employer
did
not
rely on.
[35]
As mentioned, the
board also contended that insofar as it
might be argued that the arbitrator did consider the matter in
disciplinary terms, he misconstrued
the
charges the
presiding officer had
considered. It
is
correct
as mentioned above that the presiding officer decided that
Grootboom's failure to honour the agreement to extend his probation
was not the same as a charge of insubordination, but found it
amounted to serious misconduct. In this sense, it was not altogether
unreasonable of the arbitrator to find that the chairperson
had
identified the underlying conduct on
which the badly ill-fitting charge of
insubordination was
based as a form of misconduct in its own
right and had not relied on the stated charge of insubordination.
What the arbitrator misunderstood
is that, apart from the question of
procedural unfairness, his function was to determine if that
misconduct identified by the chairperson
and relied on by the
employer as one of the reasons for dismissal was a justifiable reason
for dismissal. Instead, he appeared
to
assume he was performing a review
function in relation to the
findings
of the chairperson. This confusion about the role he was playing once
again led the arbitrator to fail to address the problem
he was
supposed
to
address.
[36]
Had the arbitrator recognized that the
formulation of the charge was a procedural issue but the substance of
the misconduct concerned
what the presiding officer actually found
Grootboom guilty of, the arbitrator would have realised he had to
determine if indeed
Grootboom's act of reneging on an undertaking
made twice which had the consequence of creating
an untenable situation for
the
employer amounted to
a
serious
act of bad faith which
undermined
the
employment
relationship. On
the
evidence,
he
would
have found it difficult to conclude that such conduct was not
severely destructive of the trust relationship especially given
that
the undertakings had
been
made
in
a
formal
context and
to
the
chairperson of
the
board.
[37]
On
the
arbitrator's finding
on
the
first
charge, he
again
based
his
reasoning on that of
the presiding officer instead of coming
to his own conclusion on the
evidence
before him.
I
have cited
the
somewhat convoluted reasoning of the
chairperson in paragraph [19] above which appears to have led the
arbitrator to decide that
the
presiding
officer had acquitted Grootboom on the
first charge
.
The essence of the
presiding officer's reasoning was that,
Grootboom
had
his
shortcomings
brought
to
his
attention
but
made
no
effort
to address them and he therefore found him guilty of 'misconduct' in
the form of 'poor work performance'. Though badly expressed,
it is
apparent that
the
arbitrator
did
regard
Grootboom's
failure
to
address
his
shortcoming as
a
form
of
misconduct because
he
made
no
meaningful attempt
to
rectify
them:
in
other
words
his
failure
to
improve
was
not
because
of
some
inability on
his
part
but because he
willfully
chose not
to.
A
willful failure
to
perform and an inability to perform is
what distinguishes poor performance due to misconduct and
poor
performance
due
to
incapacity.
[3]
The
arbitrator
failed to
consider
this afresh as
he
ought to
have.
Had he
done
so,
it
would have been difficult to conclude
that, it was due to Grootboom's inability that
he failed to communicate properly, but
rather that he was satisfied that provided he performed his financial
responsibilities well
that is where his obligations ended.
[38]
In
the
circumstances of dealing with
Grootboom's recalcitrance in being willing to adapt his behavior and
being unwilling to accept assistance
in correcting it
and
manipulating the
issue of
the
extension of
his
probation
to the embarrassment of the board, the
arbitrator would have struggled to justify his retention in the
senior position he held,
notwithstanding his undisputed competence in
matters
financial.
[39]
Consequently, I
am
satisfied
that
even
though
there
was
some
justification for finding his
dismissal was
procedurally unfair, there was no
reasonable justification on the evidence before him for finding the
dismissal
substantively unfair. This
finding necessitates a
variation of
the
award
and the
relief.
[40]
On the question of costs, I can understand why Grootboom would have
defended the
award
in
his
favour especially given the
complications of
the
matter and
a
cost
award
would
be
inappropriate.
Order
[1]
The arbitration award dated 17 September
2013 issued by the second respondent
('the
arbitrator')
under
case
number
ECPE
1407-13
is
reviewed and set aside, save that the
arbitrator's finding that the
third
respondent's dismissal
was
procedurally
unfair
is
upheld.
[2]
The arbitrator's finding in the said
award that the third respondent's dismissal was substantively unfair
is substituted with a
finding that his dismissal
was
substantively
fair.
[3]
The
relief
of
compensation of
twelve
months' remuneration awarded
by
the
arbitrator is substituted with an order that
the
applicant must, within fifteen (15) days
of this judgment, pay the third respondent an amount of three months'
remuneration, calculated
at the date of his dismissal, as
compensation for his procedurally unfair dismissal.
[4]
No order is
made as to
costs.
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
J Grogan instructed by
Wheeldon
Rushmere & Cole
RESPONDENT:
S Cokile of S Cokile Inc
Attorneys
[1]
Head of Department of Education v Mofokeng
&
Others
(2015) 36
/LJ
2802 (LAC) at 2813
[2]
See e.g
Palluci Home Depot (Pty) Ltd v Herskowitz
&
others
(2015) 36 ILJ 1511 (LAC) at 1526-7, paras [29] - [30]
or
Jorgensen v I Kat Computing (Pty) Ltd
&
others
(2018) 39 ILJ 785 (LAC) at 789-791, paras [16] - [23].
[3]
See
ZA One (Pfy) Ltd tla Naartjie Clothing v Goldman No
&
others
(2013) 34
ILJ
2347 (LC) at 2382-4, paragraphs
[74)-[79].