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[2018] ZALCD 15
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WNS Global Services (Pty) Ltd v CCMA and Others (D641/17) [2018] ZALCD 15 (21 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: D641/17
In
the matter between
WNS
GLOBAL SERVICES (Pty)
Ltd
Applicant
and
CCMA
First
Respondent
MLABA
N
N.O.
Second
Respondent
GOVENDER
K AND 21
OTHERS
Third
Respondent
Heard:
25 May 2018
Delivered:
25 May 2018
Edited:
21 August 2018
Summary:
Review application - Commissioner disregarded material evidence –
the award is not one that a reasonable commissioner could
have made –
no sanction considered by the Commissioner - case remitted to the
CCMA to determine an appropriate sanction
EX
TEMPORE
JUDGMENT
Coetzee
AJ
Introduction
[1]
This is an
ex-tempore
judgment with reasons in the matter
between WNS Global Services SA Pty Ltd v the CCMA, the first
respondent, Nontutuzela Mlaba
NO the second respondent and
Krishnaveni Govender and 21 others.
[2]
The tenth respondent had her own representation in Court.
[3]
Firstly, I thank the representatives for their very useful
submissions that contributed to the fact that I was ready to give
an
ex tempore
judgment.
[4]
This is an application to review and set aside the CCMA arbitration
award issued by the second respondent on 12 April 2017.
The dispute
pertained to the fairness of the third and further respondents’
dismissals. I refer to them as the individual
respondents. The
commissioner held that the dismissals were substantively and
procedurally unfair and ordered the applicant to
reinstate them with
retrospective effect.
[5]
The applicant approached the review on a narrow basis; it says that
the commissioner disregarded material evidence on whether
the
applicant complied with the policy to notify the respondents 30 days
in advance of a date to relocate the individual respondents
from the
Old Mutual Building where they were located to the new premises.
The
background
[6]
The applicant dismissed the individual respondents on charges of
unauthorised absence from work and for having failed to obey
a lawful
and reasonable instruction to attend work.
[7]
The notification of misconduct to the employees reads as follows:
“
Charge
1 – serious misconduct in that the employees took unauthorised
absence from their place of work for more than five
days.
Please refer to 1.4 and note 1 of the Code.”
[8]
Charge 1 follows the wording of paragraph 1.4 of the Code to which
they were referred and note 1 thereto reads as follows:
“
The
no work no pay principle will apply to unauthorised absenteeism
regardless of a disciplinary sanction.”
[9]
Charge 2 reads as follows:
“
Charge
2 – serious misconduct in that the employees failed to obey a
reasonable and lawful instruction. Please refer
to 2.17 and
note 4 of the Code.”
[10]
Paragraph 2.17 of the Code reads as follows:
“
In
subordination by the refusal of an employee to obey a reasonable
and/or lawful instruction.”
[11]
The recommended sanction in the disciplinary code is a final written
warning for the first offence and dismissal for the second.
Note 4 that accompanies the notification provides as follows:
“
If
the offences have a serious nature then dismissal for a first offence
may be an appropriate sanction.”
[12]
The individual respondents were found guilty on both charges and were
dismissed by the employer.
[13]
The applicant relies upon a policy that it inherited from Telkom when
the contracts of employment of the individual respondents
transferred
to applicant in terms of Section 197 from Telkom.
[14]
This policy in paragraph 3.1(a) provides as follows:
“
Employees
may be transferred to any Telkom work location if such an arrangement
is in the interests of the company.”
[15]
In paragraph 4.1(a) the policy provides as to notice of transfer the
following:
“
An
employee must be given at least one months’ notice of
transfer. Any period of notice of less than one month is
regarded
as short notice and the employee needs to be consulted and
agreed to accept the transfer of such short notice.”
[16]
The applicant’s case is that it gave 30 days’ notice (a
month). Leanne Coetzer from the applicant's Human
Resources
department testified that prior to 21 April 2016 she was in
communication with CWU, the union representing the individual
respondents and the union was aware that a relocation was on the
cards for the 1 June 2016.
[17]
Thivean Chinnathambi on behalf of the applicant on 21 April 2016 sent
an email to, amongst others, CWU that represented the
individual
respondents in this matter, requesting a meeting on 28 April 2016.
Attached to the email was the following notification
dated 21 April
2016:
(To)
“CWU and CACU regional offices. Notice to Section 197
Staff Office Move.
In
accordance with our consolidation strategy we would like to issue you
with this notice and thus invite you to consult with us
regarding a
proposed office move from the Old Mutual Durban building to WNS
Durban site.
(2)
During meaningful joint consensus seeking processes the company will
attempt to reach consensus on the proposed office move.
Until
there is clarity from the joint consensus seeking process above all
employees in the Old Mutual Durban building are herewith
informed
that they are affected employees. The company aims to have a
meeting with all employees affected on 28 April 2016
at 11:00 in the
Old Mutual Durban.
(3)
The reasons and proposal. (a) Old Mutual building will be
closed down by June. However, Telkom wishes to shutdown
it as
soon as possible. (b) Having to manage three sites in a single
city is unproductive. (c) Better employer engagement
across the WNS
sites when employees are on one site.
(4)
Kindly consider the above proposal carefully together with all
discussions during the consultations and we look forward to hearing
from you regarding representations and proposals which you wish to
make in this regard.
Yours
faithfully
Leanne
Coetzer
Head
of Human Resources WNS.”
[18]
The meeting occurred on 28 April 2016. What occurred at the
meeting is recorded in two parts, the one part is recorded
in the
typed transcript of the meeting of 28 April 2016 and the rest is
contained in oral evidence given in the arbitration in
respect of the
unrecorded last part of the meeting. It is common cause that
only a part of the meeting was recorded.
[19]
I first refer to the meeting
transcript. During the meeting it was clear from the invitation
to the meeting that the purpose
was to consult meaningfully on the
relocation of the employees in the Old Mutual building to a new
building. Also, that Telkom
required the applicant to vacate
the premises by the end of June 2016 or on an earlier date if
possible. The applicant in
the meeting firstly raised the
motivation for the relocation as "growing the family" and
working more closely together,
but that the first hard rule was that
the applicant had to vacate the building
[1]
.
“
The
primary driver here is that we have been told to vacate.”
[20]
The union responded thereto as
follows
[2]
:
“
We
need not to you now come in a meeting and then begin to say yes, the
sooner the better because we need to deal with that process.
If
you are saying end of June let us stick to that
,
if you go beyond the end June or July or whatever, probably date that
as well to us will not be a problem.” (Own emphasis)
[21]
The union repeated its
position:
[3]
“
Ja,
let’s say end of June because that’s how it was reported
to us.”
[22]
When the end of May is mentioned for the staff to move Mr Roland
Mazery on behalf of the applicant conveys the following:
“
Sorry,
as it stands our understanding of end of May is the thing, is the
date that Telkom have indicated, but it’s not on
the notice and
it is a question that I need to clarify for you.”
[23]
He continues
[4]
:
“
I
would like to work towards the end of May. I mean we, as Thabo said,
we had already opened up the opportunity for people to move
voluntarily if they feel that they can do that. It might be
beneficial for some staff to move now because they are closer,
the
new work will be closer. However, we will come back to you with
the actual date. I can see that there might be
confusion.”
[24]
The discussion continued to and
fro with the union stating
[5]
:
“
And
we will work on the process towards end of June let it be.
”
[25]
Mr Mazery later asked that could we work on the end of May? This
again is queried by the union. The union refers to the
notice
calling the meeting stating that it received a mandate to negotiate
on the end of June as mentioned in the notice.
The union said
it could not now go back to its members to say that the period has
been shortened to the end of May. The union
also points out
that some of Telkom’s operations would continue in the Old
Mutual building after June 2016 and therefore
it is incorrect to say
that the Old Mutual building would be closed down.
[26]
During the discussion it appeared that the notice had been sent only
to the union and not to the individuals. This became common
cause.
The discussion led to a caucus called by the union.
[27]
After the caucus the union
referred to the various Telkom documents relevant to health and
safety issues, the facilities and some
other aspects. The
applicant gave an assurance that the new building was a state of the
art building absolutely compliant
with all the requirements.
The union however said
[6]
:
“
So
therefore, we would have liked for each and every member of CWU needs
to visit there themselves because we are talking about
what do you
call, is it called, I am not having this thing.”
[28]
A discussion then followed as to a visit to the building, travelling
costs and some other aspects.
[29]
The applicant repeated its
position that at the end of May the employees must relocate. The
parties seemed to come to some sort
of an agreement or at least an
understanding when the union says the following
[7]
:
“
After
end of May that’s what you said
.
That’s what you said,
and
I said we agree.
Now
you are coming again to open that and you want us to open a
discussion on that again. I think we are moving back
and forth
let’s agree that
end of May people, after end of May that’s when people will
start moving and then that’s what
we are going to be
communicating to the rest of our members
."(Own
emphasis)
[30]
Thereafter follows a caucus called by the employer and the rest of
the meeting is not recorded.
[31]
The oral evidence covers the rest of the meeting.
[32]
Mr Thabo Madiehe for the
employer testified that during the caucus the following happened
[8]
:
“
We
even in fact asked for an adjournment to ensure that we confirm this
thing both with the regional head of operation to ask to
find out if
there is a possibility of having maybe the employees moving maybe a
week after the first week in the middle of June
and all that.
And it was confirmed that 1 June was the date because failure to do
so we will – we won’t have
access to that building and
will still have to provide services to Telkom. And that figure
was given to the representative
of the union that 1 June indeed it
was the date of the move. And we then all agreed that 1 June
was the date of the move.”
[33]
Mr Thabo Madiehe testified
further
[9]
:
“
And
there was a proposal from the union to check if it’s going to
be viable to have the move shifted by a week or two until
around 15
June. We said we had a proposal, we adjourned, we were going to
just get that understanding and the feedback was
that unfortunately 1
June is the date because the building is going to be decommissioned.
So, we needed to understand from
all stakeholders if the proposal
from the union to shift to the left was possible. So, we were
all clear in terms of when
is the move supposed to happen.”
[34]
And also:
[10]
“
In
that meeting the company was very clear in terms of what we needed to
do and what was going to happen. We were very clear;
hence we
had to adjourn and get direction from our principals and it was made
very clear in that meeting what was going to happen
and then for how
long was this thing. So, the decision and the direction it was
very clear. The union representative pushed
Mr Thabo Madiehe into
conceding that if there was no agreement between the company and the
union then in that case further notices
had to be issued.”
[35]
On the same topic Thivean
Cinnathambi on behalf of the applicant testified as follows
[11]
:
“
During
the course of that meeting we had a break during the duration of that
three-hour meeting. We received clarity that
the move has to
take place on 1 June. During that meeting the unions did
indicate you know can it be at the end of June or
whatever the case
may be. However, based on the clarity we received when we went
back on a break we reiterated that the move
needed to take place on 1
June.”
[36]
She continued
[12]
:
“
That
was the whole purpose of the meeting to discuss the move and to
obviously inform them. During that meeting like I mentioned,
I
did indicate that we went and found out and received clarity on the
actual move on 1 June 2016.”
[37]
Mr Roland Mazery further
testified on behalf of the employer
[13]
:
“
Well,
there was a lot of discussion around the actual date which prompted
us to actually caucus and step away from the meeting to
go back to
our principals to clarify the date. And on the back of that our
message to our colleagues was that the 31 May
was the last day that
they had to be in that building and that the 1 June they needed to
report to the new site. Yes, so
the date we didn’t expect
that the date would be such a contentious issue, but we knew we had
to give a months’ notice
and we felt that we were within that
notice period. They requested for more time, but unfortunately,
we weren’t able
to get more time we had been given strict
instructions to vacate on the 31st. And then, Ja, so that was
around the date.”
[38]
Mr Roland Mazery also said:
[14]
“
And
the position of the union consistently was no we don’t accept
that, no we actually want the end of June. But eventually
they
said well but look if we can agree that not before the end of May
then we start moving thereafter. But that’s
what the
position was that the union adopted.”
[39]
And further on the same page it is recorded in the transcript:
"Ja,
so and again the record doesn’t carry through to the critical
part unfortunately. Where we actually break
away to go to our
principals because we were listening, and we wanted to be absolutely
certain that our date was a hard date and
we broke away and I
personally called in through to my principal to check that the date
was the date of the move. And when
we joined the meeting again
that was when we said guys we cannot budge on this date that is the
date.”
[40]
And further:
[15]
“
So,
around the date, in my mind there was no doubt around the date as to
whether they thought this was an ongoing consultation I
can’t
say.
[41]
He also said:
[16]
“
And
we caucused so that we could go and absolutely verify that that date,
we listened so we thought we would, so my call to my boss
was is this
date hard, can we move it, what will be the implications and the
message I got back was that date has been given to
us by Telkom. They
need us out of that building. They have a plan for the
equipment and we can’t move that date.
So that was the
purpose of the caucus because then I came back into the meeting to
say that’s the information. We can’t
flex on the date.”
[42]
For the respondents Ms K
Govender testified and in cross examination replied in response to a
question
[17]
:
“
Advocate
Posemann
: In the
meetings Thabo told you clearly 1 June, he consulted with Leanne and
told you 1 June was the date?”
K
Govender:
He didn’t
say 1 June, Thabo consulted with Leanne. It was Roland, Thabo and
Thivean and they came back into the meeting and
said end of May.
Nowhere in that conversation did they say 1 June.”
[43]
A further question was put to
her:
[18]
“
So
even if nobody else knew about the move you certainly knew about the
move about the end of May and there would be a discussion
in
between.?”
Govender
:
Yes"
[44]
The meeting is followed by an email of 13 May 2016 from Thivean
Cinnathambi on behalf of the applicant to the union providing
information requested by the union on the implementation of the
relocation stating:
"Kindly
note we will submit the schedule for the site visit on Monday 16 May
2016."
[45]
This is followed by some further emails regarding the visit to the
site. There was a note prepared on the outcome of the inspection
that
was submitted to the applicant. And then on 26 May 2016 Mr
Thabo Madiehe circulated an email, including also the individual
employees for the first time, with the following content:
“
Dear
colleagues,
re
Office Move from Old Mutual Building to WNS premises.
We
refer to numerous discussions and various interactions over the past
few weeks with our employees based at the Telkom Old Mutual
premises
as well as organised labour CWU and SACU. A formal
communication confirming the move was shared with all parties
concerned on 21 April 2016. The communication was followed by
subsequent meetings with CWU on 28 April 2016 and 25 May 2016.
During the meeting on 28 April 2016, as recorded, it was confirmed
that all employees would be moving from the current place of
work Old
Mutual building to the WNS sites effectively 1 June 2016. We
had some feedback from CWU with regards to the new
site/s. With this
we recognise your feedback, but would however like to assure you that
our sites are 100 percent compliant from
a health and safety point of
view and we take pride in the newly built sites for our employees.
Where possible and on an
ongoing basis we work with our employees
through various forums to make our workplace a safe and exciting
environment. We
would like to reiterate and confirm that this
move will take place on 1 June and we look forward to welcoming you
to our new home
on the 1 June 2016.
Warm
regards,
Thabo.”
[46]
Ms Phiwe Mdletshe of CWU on 30 May 2016 replied thereto complaining
that the applicant was addressing its members directly
and the
relevant parts are quoted below. It started off by saying:
“
Below
is a letter you have written to our members regarding the movement to
the new site and would like to state the following:
We
do not appreciate the direct communication to our members while we’re
still in consultation because that is tantamount
to undermining the
constitutional of your employees to be members of the union of their
choice.”
[47]
And then it deals with the meetings and the last paragraph reads:
“
We
are of the strong belief that there is an intention on your part to
undermine and confuse our members, so they could fall in
your trap of
victimising, undermining and manipulation. It is also clear
that you will not be able to change your ways or
attitude in dealing
with us which leaves us with no option but to consult an external
party in dealing with the situation.
Regards,
Phiwe
Mdletshe.”
[48]
He attached the email that he referred to in his communication.
This is followed by an email, on the 31 May 2016, from
Roland Mazery:
“
Hi
All, the big move is tomorrow. Please note that the Telkom IT
team will begin decommissioning equipment early on 1 June
2016 at the
Telkom OM. This will include removing telephones and PC’s
and revoking physical access to the premises
and access to systems.
It is important that you report for work at your new designated site
on 1 June 2016 as per your usual
shifts. Please reach out to
the HR team should you have any questions.”
[49]
CWU then referred a dispute relating to the move to the CCMA. CWU on
31 May 2016 replied referring to disturbing reports that
the workers
are being instructed to remove all their belongings as they must be
out of the Old Mutual building and making mention
of further
meetings. Also stating that CWU is putting it on record that no
members of the union shall move until all proper
consultations have
been done, that there is a current dispute before the CCMA and the
employer must retract the instruction given
until the matter that was
before the CCMA has been completed. The employees are then
informed:
“
Please
note as per previous communication from tomorrow 1 June 2016 the Old
Mutual building as a place of work will no longer be
available.
All WNS employees are required to report to the WNS sites tomorrow.
The employees’ access to the Old
Mutual building Telkom
premises will no longer be available.”
[50]
CWU then unsuccessfully approached Telkom to ask for assistance in
terms of the section 197 transfer agreement.
[51]
The individual respondents did not report for duty at the new
premises and as a result the applicant issued an SMS to the affected
employees:
“
Dear
Employee, we are concerned about your absence from work today.
As per our instruction earlier please report to the WNS
site as soon
as possible. Should you fail to report to the WNS this could be
seen as AWOL. We are looking forward to
welcoming you at WNS
sites.”
[52]
The next day a second SMS was sent:
“
Dear
Employee, your continued absence from work is of concern to us.
Again, we urge you to please report for duty tomorrow
at WNS sites.”
[53]
On the 3 June 2016 a third SMS was sent saying the following:
“
Dear
Employee, you have not reported for duty since 1 June 2016 despite
your employer’s numerous instructions. Your
continued
absence without permission and failing to follow the reasonable
instructions to report to WNS premises is viewed in a
very serious
light. Whilst we take note of your concerns raised with regards
to the move you are still required to report
as instructed.
Please report for duty by no later than 08:00 Monday 6 June 2016.
Failing which we have no alternative
but to commence with
disciplinary proceedings. We look forward to having you on
board on Monday.”
[54]
The individual respondents did not report for duty and an SMS
followed advising them of the disciplinary enquiry set for 10
June
2016.
[55]
The employees during the period 3 June to 7 June responded with
various SMS’s to Thivean Chinnathambi saying:
“
Dear
HR Manager, Thivean Chinnathambi, please be advised that our union
CWU and the senior group manager Thabo Madiehe are still
in
consultation on the current situation regarding the move to the new
workplace or site. Please direct all queries with
regards to my
daily reporting status to them directly for further info.”
[56]
It is also on record that Mr Thabo Madiehe on 3 June 2016
communicated to CWU as to health and safety issues. WNS still
required the employees to report for duty at the WNS site to perform
their duties notwithstanding. It is also pointed out
that for
70 percent of the employees they would actually benefit because it
was closer to their homes.
The
award:
[57]
The applicant seeks to review the arbitration award on the basis that
the commissioner failed to have regard to the evidence
of any oral
communication informing the employees through its union of the date
of the move. The commissioner thus misconceived
the nature of
the enquiry, so says the applicant, or didn’t have due regard
to material evidence and consequently did not
arrive at an award that
a reasonable commissioner could have. It is the applicant’s
case that the evidence showed clearly
that the date of the relocation
was orally conveyed to the respondents on 28 April 2016 while the
union was acting on behalf of
its members. This evidence the
commissioner ignored.
[58]
The relevant part of the award under attack is to be found in
paragraph 65 to 68:
“
(65)
The fact herein is that the employees were only informed of the move
that was to take effect on 1 June 2016, on the 26 May
2016 by an
email that was sent to all affected employees, by Mr Madiehe.
(66)
It was admitted by Madiehe as well as Thivean at this hearing that
that was the first correspondence regarding the move that
was sent to
the affected employees.
(67)
It was also a fact that is unchallenged that the first email
pertaining to (b) (sic) the move was sent by Madiehe to the union's
regional head on 21 April 2016. This email however as quoted in
para [it’s blank] above was clearly an invitation extended
to
the union for a consultation regarding the move.
(68)
The email of the 21 April was not a notice to employees as
contemplated in the relocation policy.”
[59]
There is no mention in the award on whether oral evidence was given
in respect of the meeting of 28 April 2016. The finding
deals
with only the applicant’s proposition that there was an
agreement on the relocation date and not that oral notice was
given.
In this regard the commissioner held as follows:
“
(70)
It was the respondents’ evidence that the union had agreed at a
meeting held on 28 April that the applicants would move
to new
premises on 1 June.
(71)
The applicants dispute the above and the record of the meeting was
submitted.
(72)
I have perused the record which was submitted by the respondent and
clearly there is nowhere in the transcript that suggests
that there
was such an agreement.
(73)
The respondents witness Thivean was questioned and asked to point out
in the transcript any passage that stated that an agreement
was
reached. She failed to do so.”
Analysis
[60]
The applicant's case is that the commissioner failed to consider
whether oral evidence was given on the meeting of 28 April
2016. The
oral notification is material to the issue that the commissioner had
to decide. The commissioner limited herself
to whether there
was an agreement and whether that agreement was apparent from the
transcript of the first part of the meeting
which was recorded and
transcribed. She ignored the evidence on the second part of the
meeting and the oral evidence that notification
was given.
[61]
On the other hand, the 10th respondent contends that nowhere in the
available recording of the meeting of 28 April 2016 is
it
demonstrated that the applicant gave CWU clear and unequivocal notice
that the individual respondents were required to relocate
on 1 June
2016.
[62]
The commissioner seems to concur with the submission based on the
fact that the witness Thivean could not point out
in the
transcript of the meeting
that such an agreement was reached,
neither could he find it in the transcript.
[63]
The commissioner did not consider at all the oral evidence as to what
occurred during the unrecorded last part of the meeting
after the
employer returned from the caucus. The last part of the meeting
was not recorded and there was no transcript for
the commissioner to
consider or for Thivean to point out anything on it.
[64]
The evidence before the commissioner in respect of the proceedings
after the caucus in my view strongly shows that the employer
representatives contacted their principal in charge who made it
abundantly clear that the relocation could not be later than 1
June
2016. That information was unequivocally conveyed to the union
official and the shop stewards present at the meeting which
also
three of the individual employees attended.
[65]
The position of the union at that stage had already been that if the
relocation was not before the end of May 2016, then it
was fine.
The employer’s evidence in this regard is confirmed by Ms K
Govender, a shop steward. She testified on behalf
of all the
respondents (as quoted above) that when the meeting resumed the three
employer representatives said that the date was
the end of May.
She disputed that 1 June was mentioned but confirmed that the end of
May was the final date. She also
conceded that if nobody else
knew she knew that the employees had to relocate at the end of May.
She confirmed the applicant's
version of events.
[66]
The finding of the commissioner that no notice was given is against
clear evidence that the employees’ representatives
were
informed that the date was a "hard factor" and that there
was no chance of moving the date beyond the end of May.
The
union clearly indicated its position that they agreed that the
applicant could relocate the employees if it was after the end
of
May. The commissioner disregarded this material evidence.
[67]
The 10th respondent further submits that the notification was not
clear and did not comply with the requirements of a valid
notice.
The submission is in my view without substance as there was a
discussion in respect of different dates and the parties
were clear
on the date. The employer did not have to consult anybody on
the date, but nevertheless did so and then unequivocally
informed the
union of the date when the relocation would take place. There
is nothing unclear about this.
[68]
There were no requirements as to the form of the notification. The
notification was oral. That was sufficient.
[69]
The finding of the commissioner that there was no compliance with the
requirement to notify employees 30 days (a month) in
advance of the
date of relocation is one that a reasonable commissioner could not
have arrived at. Such conclusion disregarded
clear evidence to
the contrary.
The
alleged agreement
[70]
The 10th respondent also submitted that no agreement was reached
between the applicant and CWU that relocation would take place
on 1
June 2016. The submission is that there was no mandate by its
members to the union to agree to any date prior to June
and therefore
the union would not conclude such an agreement.
[71]
The long and the short is that the applicant needed not rely upon an
agreement in the form of a collective or other form of
agreement as
such an agreement was not necessary for purposes of complying with
the Telkom relocation policy. In argument the applicant
only relied
upon the oral notification to the union.
[72]
The policy required that information be conveyed to or the union
being notified a month prior to the date. That was done. The
purpose
of the policy is advance warning, as Mr Todd puts it, before the
"landing date", whether the union liked it or
not and in
any event the union stated its position clearly that as long as it
was not before the end of May then it was acceptable.
[73]
A further point raised by the
respondents is that the individual respondents did not personally
have knowledge or constructive knowledge
of the date of relocation.
The argument goes that the policy says that the "employees"
must be informed and thus notice
given to the union is not notice
given to the employees. Reference is made to the
Transport
and Allied Workers Union-case
[19]
where the High Court held that notice to the union of a proposed
retrenchment was not sufficient notice to its members. Counsel
for
the 10
th
respondent, rightly also referred to several other cases where the
Court regarded notice given to the union as sufficient. Those
cases
where notice was given of a disciplinary enquiry etcetera. Counsel
attempted to distinguish those authorities on the basis
that in those
cases there have been disputes between the employer and the employees
or the trade unions were found to have expressly
or impliedly
asserted their respective rights to act on behalf of the members in
the course of dealing with such disputes or there
had been service of
documentation in connection with such disputes. The Court was urged
to accept that unless it is clearly demonstrated
that the union in
this matter had a specific mandate from its members to accept the
information conveyed as to the date of the
relocation then in the
absence thereof the employees did not have constructive notification
through the conduit of their union.
[74]
There is sufficient authority to show that in the employment
relations and the labour relations sphere where a union specifically
says I am acting on behalf of my members then notice to the union is
notice to the employees who are members of that union.
In this
particular case, three individual employees were also present at the
meeting. They at least first hand knew what was going
to happen.
And the union as I pointed out earlier chastised the employer for
contacting its members directly. The union
was clearly acting
on behalf of its members. Also, during the meeting, the union
indicated that it was going to communicate with
its members regarding
the date of their relocation. There is no reason to believe
that the union was not the representative
who could receive the
information on behalf of its members. In this case, on the
facts alone, the union indicated clearly
that it was going to
communicate with its members on the issue of the date of relocation.
The submission that the members did not
have knowledge, therefore
stands to fail. The respondents were duly informed of the date of
relocation.
The
procedural unfairness
[75]
The respondents allege that there were procedural irregularities,
amongst others, about the text messages sent to the respondents,
the
formulation of the charges and a lack of clarity. In my view
there is no merit in this submission as it is clear from
the text
messages and the notification of the disciplinary enquiry that the
employees could understand what was required of them.
The only
finding of an irregularity by the commissioner is that a notice
calling the employees to the disciplinary hearing did
not inform them
of their rights. This is a finding that is so formalistic that
it should be rejected. The union was
involved from inception.
There was no need to advise the individuals. This finding of the
commissioner also is not one that a reasonable
commissioner could
have arrived at. There were no procedural irregularities.
[76]
The second alleged procedural unfairness relates to the position of
the third respondent who is a shop steward. The finding
is that
the employer did not follow the procedure regarding the dismissal of
a shop steward. The procedure obviously refers
to the procedure
in the Code. Ms K Govender was a shop steward and she maintained that
in terms of the collective agreement and
the code the union had to be
consulted or informed prior to her being called into a disciplinary
enquiry.
[77]
The applicant engaged the union before the enquiry on the entire
collective process that it wished to follow and consulted
on the
disciplinary enquiry and this included the third respondent as one of
the affected persons.
[78]
It must have been absolutely clear that discipline would be taken
against all and sundry and that would include the shop steward.
To
inform or consult the union separately on her position would not
contribute in any way to the fairness of this matter because
the
union already knew and participated in the proceedings. The
lack of formal consultation under those circumstances does
not render
this process unfair. Therefore, the finding that the dismissal
was procedurally unfair is also not one that a
reasonable
commissioner could have arrived at.
The
sanction
[79]
The respondents in the arbitration put in issue, according to the
arbitration minute, whether dismissal was the appropriate
sanction.
The commissioner made no finding as to the sanction of dismissal
imposed by the employer after the disciplinary
enquiry. The
commissioner limited his finding to whether there was a rule, that
is, whether the employer gave 30 days’
notice of the date of
relocation. He found the dismissal unfair and did not have to
consider the sanction.
[80]
I have been directed to various submissions and factors to consider
and I was urged to consider imposing a fair sanction.
The
purpose of the Court imposing a sanction was to then take a global
view of whether the dismissal was fair and whether the commissioner
under those circumstances having regard to a sanction imposed by this
court acted like a reasonable commissioner.
[81]
This means that the Court has been requested to sit as an arbitrator
to determine a fair sanction. This Court may when
it reviews
and sets aside an award substitute its own award if appropriate.
When it comes to sanction this Court is reluctant
and has been
reluctant to intervene with sanctions imposed by arbitrators and
commissioners. I am even more reluctant in
the first instance
to determine a sanction where no one was imposed, and no
consideration has been given as to a sanction.
[82]
The Court may review and then substitute awards, but in only very
exceptional circumstances determine the sanction in the first
instance. This would also mean that the Court may be sitting as
an arbitrator subject to review or appeal on the sanction
issue.
[83]
This Court is not prepared to consider and impose a sanction.
[84]
The matter was dealt with as a collective matter, but that does not
prevent the individual respondents who so wish to make
individual
representations as to a fair sanction
albeit
through their
union if so elected. It is appropriate that the matter is
referred to the CCMA. The CCMA must appoint a commissioner
other than
the second respondent to determine an appropriate sanction.
[85]
As to costs the 10th respondent did not ask for a cost order and the
applicant left it in the hands of the Court. Having
regard to
the outcome and the other factors to consider I am of the view that
it is not appropriate to make a cost order.
[86]
I make the following order:
[86.1] The arbitration award of 12
April 2017 is reviewed and set aside.
[86.2] The individual respondents were
guilty of the misconduct with which they were charged, and the
employer followed a fair procedure.
[86.3] The question of the fairness of
the sanction is remitted to the CCMA to be determined
de novo
by a commissioner other than the second respondent.
[86.4] There is no order as to costs.
_____________________
F
Coetzee
Acting
Judge of the Labour Court
APPEARANCES:
For
the applicant: Chris Todd
Of:
Bowmans
For
respondents 3 – 9 and 11-21: B Mashego
Of:
CWU
For
the tenth Respondent: K Allen
Instructed
by: Henwood Britter & Caney
[1]
Transcript page 570
[2]
Transcript page 575
[3]
Transcript page 576
[4]
Transcript page 578
[5]
Transcript page 579
[6]
Transcript page 587
[7]
Transcript page 601
[8]
Transcript page 24 and 25
[9]
Transcript page 116
[10]
Transcript page 120 and 121
[11]
Transcript page 261
[12]
Transcript page 262
[13]
Transcript page 432
[14]
Transcript page 454
[15]
Transcript page 559
[16]
Transcript page 474
[17]
Transcript page 673
[18]
Transcript page 677:
[19]
(1992) 13 ILJ 1154 (D)