About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 3
|
|
Travalgar Property Management v Bakshi and Others (JR180/2017) [2019] ZALCJHB 3 (11 January 2019)
THE
LABOUR COURT OF SOUTH AFRICA
,
JOHANNESBURG
Not Reportable
Case no: JR 180 /2017
In
the matter between:
TRAVALGAR
PROPERTY
MANAGEMENT Applicant
and
DEEPAK
BAKSHI
First
Respondent
J
D SELLO
N.O
Second
Respondent
COMMISSION FOR CONCILIATION,
MEDIATIATION
AND
ARBITRATION
Third
Respondent
Heard:
5 December 2018
Delivered:
11 January 2019
Summary: Review application.
Arbitrator’s findings that the dismissal of the employee was
unfair is not to be interfered with
on review.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award issued on 23 December 2016 under case number
GAJB 21078-16 where
the Second Respondent (the arbitrator), found the
First Respondent’s (the employee) dismissal substantively
unfair and awarded
him compensation equivalent to six months’
remuneration.
[2]
The employee opposed the application.
Background facts
[3]
The Applicant is a property management
company. The employee commenced employment with the Applicant in
January 2015 as an estate
manager at the Sterlitzia body corporate, a
large estate which consists of a few hundred units. The Applicant’s
case is that
the position occupied by the employee was an important
position and he rendered a service to a very demanding client. In
August 2016, the employee applied for leave for a period of two
weeks, which application was denied. The employee nonetheless
absented
himself from work and he was subsequently charged with one
count of misconduct: gross insubordination for blatantly disobeying a
direct instruction that he could not take two weeks’ unpaid
leave. The employee was dismissed in September 2016, after being
found guilty of the said misconduct.
[4]
The employee subsequently referred an
unfair dismissal dispute to the Third Respondent, the Commission for
Conciliation, Mediation
and Arbitration (CCMA) and the matter was
arbitrated on 12 December 2016.
The evidence adduced:
[5]
The issue to be decided by the arbitrator
was whether the employee’s dismissal was substantively fair as
there was no challenge
in respect of procedural fairness. The
arbitrator found the employee’s dismissal substantively unfair
and ordered that he
be paid compensation.
[6]
In order to assess the arbitrator’s
findings in respect of substantive fairness and the award he issued,
it is necessary to
consider the reason the employee was dismissed for
and the evidence adduced at the arbitration proceedings. The employee
was dismissed
for gross insubordination by going on leave after he
was told that his application for leave was declined and after he was
told
that he could not take leave.
[7]
The Applicant’s witness, Mr Shaun
Germishuizen, is employed as the senior portfolio manager in which
capacity he manages sectional
title and home owners’
association properties, including the Sterlitzia body corporate. In
the Sterlitzia body corporate,
there are 376 units and this is where
the employee was employed as an estate manager. This is the only body
corporate where a dedicated
estate manager is employed to manage the
estate on a daily basis in respect of finances and administration.
The client is very
demanding and expects the employee to be at the
premises every day. In the event that the employee is not at work,
the client is
advised and if necessary, alternative arrangements are
made to ensure that his duties are done.
[8]
On 17 August 2016, the employee made a
follow up regarding a request that he had previously made to take two
weeks’ unpaid
leave in order to take his ill father to India
for treatment.
[9]
The Applicant indicated that it was unable
to grant the employee two weeks’ unpaid leave given the fact
that they did not
have sufficient staff to stand in for him at
Sterlitzia and because the Applicant had been very accommodating in
granting the employee
time off. The periods the employee was granted
time off between 30 June and 29 July 2016 had been set out in an
electronic mail
to him and it was made clear that operationally, the
Applicant could not afford another two week’s absence from the
employee.
The leave already granted to the employee was family
responsibility leave when his mother passed away and sick leave due
to an
injury sustained by the employee.
[10]
Mr Germishuizen testified that the client
was not happy when the employee was not present for the aforesaid
period, as the client
pays service fees and expects the employee to
be present on the premises, and the Applicant had to make alternative
arrangements.
Mr Germishuizen explained that there is not a pool of
people from which the Applicant can pull to do the work in the
absence of
the employee and arrangements had to be made with other
employees to go and work on site at Sterlitzia.
[11]
Mr Germishuizen explained that the
employee’s absence had financial and operational consequences
for the Applicant as other
employees had to be taken from other
departments and operationally it impacted on certain portfolios.
Financially, the Applicant
had to refund the client for the
employee’s absence.
[12]
Mr Germishuizen confirmed that the employee
was dismissed for gross insubordination in respect of his absence
from work for six
working days in August 2016 in that he ignored a
direct instruction that he could not go on leave but did so
regardless.
[13]
In cross-examination, Mr Germishuizen made
it clear that the employee was entitled to the leave days as per his
contract of employment
and the issue was rather that he had to apply
for leave and that it had to be approved before it could be taken. It
was not for
the employee to inform the employer that he is taking
leave, whether or not it was applied for or approved. The issue was
that
at the time the employee wanted to take leave, the client was
busy with a critical project, namely a full security upgrade, called
Biometric Security System and the client wanted the employee to be
available throughout the period of the project, which was from
15 –
22 August 2016. The system was installed and finalised on 19 August
and was fully implemented from 22 August 2016. The
project entailed
the scanning of fingerprints and the client would have suggested that
the employee take leave at an alternative
date, but instead the
employee just took the leave by informing the Applicant that he was
going on leave. The issue was not the
employee’s entitlement to
leave, but the fact that he took leave without permission.
[14]
Mr Germishuizen testified that it would
have served no purpose to sit down with the employee to discuss the
leave issue as he made
it very clear in his e-mail that he was
applying for leave and whether it was approved or not, he was taking
his father to India.
Even if the Applicant had asked him to stay,
knowing the circumstances and the clients’ needs at that
particular time, the
employee would not have stayed as he decided to
take leave, no matter what.
[15]
The employee testified that his troubles
started on 29 June 2016 when his mother was admitted to hospital and
passed away shortly
after she was discharged. He applied for
compassionate leave of three days, during which period he worked half
a day to ensure
that everything at work was in order. After his
mother’s passing and on 8 July 2016, he had to perform the last
rites at
the river and during this event, he fell. The employee went
to the doctor and he was stitched up, but by Monday 11 July 2016, he
was rushed to hospital, underwent surgery and was booked off for a
period of two weeks. After this he went back to work.
[16]
In August 2016, the employee received a
distressed call from his father and he rushed home to find his father
lying on the floor
and unable to speak. He called the paramedics and
his father was taken to hospital where X-rays were taken employee was
told that
his father had to be admitted as he needed urgent medical
attention. As his father did not have a medical aid, they had to pay
the hospital R 100 000 upfront and they were unable to afford the
hospital. The doctor said that the employee should take his father
to
a public hospital or back to India where his doctor was.
[17]
The employee testified that he had to take
his father to India to receive medical attention as he could not
afford a private hospital
and did not want to take his father to a
public hospital. He recently lost his mother and was too scared to
take his father to
a public hospital. He phoned Mr Michael and
explained his situation and his testimony was that he begged for
leave as he had just
lost his mother and could not afford to lose his
father too. Mr Michael swore at him and said that if he would go to
India, he
would be fired. Mr Michael refused to deal with the
employee’s request and told him to apply for leave from the
human resources
manager.
[18]
On 15 August 2016, the employee contacted
Ms Nicole Orchard, the human resources manager and he explained his
situation to her and
that Mr Michael said that he should contact her
regarding his application for leave. Ms Orchard indicated that she
would revert
to the employee and when she had not done so by 17
August 2016, he followed up with her. He applied for leave due to his
father’s
condition and the need to receive medical attention in
India.
[19]
On 17 August 2016 Ms Orchard indicated that
the employee could not be granted leave because there was not
sufficient staff to stand
in for him at Sterlitzia and because the
Applicant had already been very accommodating in granting him time
off in unforeseen circumstances:
referring to his mother’s
passing and subsequent injury and sick leave. Ms Orchard indicated
that operationally, the Applicant
could not afford another two weeks’
absence from the employee and she proposed that the employee’s
father be taken
to a public hospital. The employee requested Ms
Orchard to reconsider his request and he once again explained his
situation and
why his father could not be taken to a public hospital.
[20]
Ms Orchard’s response was that the
Applicant was unable to grant the employee leave due to the fact that
there was not sufficient
staff to stand in for him.
[21]
The employee’s leave was finally
denied and he testified that he got very upset and that on 18 August
2016 he told the Applicant
that whether he was granted leave or not,
he was taking his father to India. The employee did not want to put
his father’s
life in jeopardy and he left on 24 August 2016 to
take his father to India. He came back on 31 August 2016 and started
working
again on 1 September 2016.
[22]
The employee had leave credits available at
the time but was prepared to take unpaid leave. He testified that he
was upset because
he had explained his position to the Applicant and
the reasons why he had to take his father to India and the refusal to
grant
him leave was unreasonable. He testified that the Applicant
showed no compassion and at no point was there any attempt to discuss
the issue with him. The Applicant’s stance from the onset was
that if he would go to India, he would be fired. The employee
explained that he could not carry on begging for leave which was
refused and at the same time putting his father’s life in
jeopardy.
[23]
It is evident from the transcribed record
that the employee was asked a lot of irrelevant questions which were
unnecessary and did
not take the case any further.
[24]
In cross-examination the employee conceded
that he was granted two and a half weeks’ leave in July 2016.
He also conceded
that he was busy assisting with the fingerprints and
the implementation of the Biometrics Security System. The employee
worked
on weekends to ensure that the Biometric Security System was
implemented and he was busy with this when he received the distressed
call from his father on 13 August 2016. His father suffered from a
heart condition.
[25]
The employee further explained that as his
father’s only son, it was his duty to accompany him to India.
[26]
The employee testified that before he left
for India, he showed someone in the office what needed to be done,
handed him his laptop
and cell phone number to be able to contact him
(the employee) should that be necessary. He also volunteered to work
on weekends
to get the work done.
[27]
The employee conceded that he took leave on
his own accord and without permission. He further conceded that leave
must be suitable
to both the employer and the employee and that the
employer has a discretion to grant it or not. His case is that the
Applicant
never understood his circumstances, never showed compassion
and never requested a meeting with him to explain his circumstances
to them. He however conceded that when he applied for leave he did
not provide the Applicant with any information in respect of
his
father’s condition and the reason why he had to go to India
with his father.
The arbitrator’s findings
[28]
In his analysis of the evidence, the
arbitrator considered the fact that the employee was dismissed for
gross insubordination and
not unauthorised absenteeism.
[29]
The
arbitrator recorded the definition of ‘insubordination’
as defined by the Labour Appeal Court (LAC) in
CWIU
and another v SA Polymer Holdings (Pty) Ltd t/a Megapack
[1]
,
as
‘a wilful and serious refusal to obey a lawful and reasonable
command or conduct by the employee which poses a deliberate
and
serious challenge to the employer’s authority’. The
arbitrator recorded the essential elements for insubordination
as
that, the order given should be lawful and the reasonableness of the
order should be beyond reproach. To justify dismissal,
it has to be
shown that the employee deliberately refused to obey a reasonable and
lawful instruction by the employer.
[30]
The arbitrator recorded that the employee
went on leave against the Applicant’s order that he could not
do so. He accepted
that the employee’s version that he needed
to take his ailing father to India and that he was willing to take
unpaid leave,
was not disputed.
[31]
The arbitrator found that the instruction
that the employee could not go on leave was unreasonable and callous,
as the employee
had just lost his mother when his father fell ill and
his father was fearful of being admitted to a public hospital.
[32]
He further found that the employee was away
from work from 22 – 31 August 2016, which was not inordinate.
The Applicant failed
to provide proof that it suffered financial loss
due to the employee’s absence in that the client demanded a
refund. The
arbitrator however accepted that the employee’s
absence disrupted the Applicant’s operations, however this had
to be
juxtaposed with the employee’s personal circumstances.
[33]
The arbitrator concluded that dismissal was
not an appropriate sanction, as a written or final written warning
would have sufficed
and he found the employee’s dismissal
substantively unfair.
[34]
As already pointed out, the arbitrator
awarded six months’ compensation having considered the
circumstances that led to the
employee’s dismissal, his length
of service and his real and prospective loss of income.
Analysis: the grounds for review
[35]
I
have to deal with the grounds for review within the context of the
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court very clearly held that the arbitrator's
conclusion must fall within a range of decisions that a reasonable
decision maker could make.
[36]
The
LAC in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[3]
affirmed the test to be applied in review proceedings and held that:
‘
In
short: A reviewing court must ascertain whether the
arbitrator considered the principal issue before him/her;
evaluated
the facts presented at the hearing and came to a conclusion
that is reasonable.’
[37]
The
review Court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with
each
of those factors and then determine whether a failure by the
arbitrator to deal with it is sufficient to set aside the award.
This
piecemeal approach of dealing with the award is improper as the
reviewing Court must consider the totality of the evidence
and then
decide whether the decision made by the arbitrator is one that a
reasonable decision maker could make
[4]
.
[38]
The Applicant raised a number of grounds
for review. The first ground for review is that the arbitrator
displayed a clear bias in
favour of the employee. This ground for
review is unsubstantiated and in my view there is no merit in this
ground for review. The
gist of this ground for review is an attack on
the findings the arbitrator made in favour of the employee and
ultimately the finding
that the employee was unfairly dismissed,
rather than anything to support or substantiate allegations of bias.
The fact that the
arbitrator found in favour of the employee does not
constitute bias and the Applicant did not place any facts before this
Court
to support its case that the arbitrator was biased.
[39]
The remaining grounds for review all relate
to the manner in which the arbitrator dealt with the evidence before
him. The Applicant’s
case is that the arbitrator failed to
apply his mind to the evidence and as a result failed to draw
rational conclusions from the
evidence, that he failed to take into
account material facts and failed to consider the totality of the
evidence in determining
the matter. The Applicant also takes issue
with the fact that the arbitrator failed to consider whether
dismissal was an appropriate
sanction.
[40]
It is evident from the arbitrator’s
findings, that he was alive to the fact that in a case of
insubordination, the order has
to be reasonable and lawful and that
the employee had to deliberately refuse to obey such a reasonable and
lawful order. The arbitrator
found that the employee went on leave
against the Applicant’s order, which order he did not find to
be unlawful. The arbitrator
found the order to be unreasonable
because the employee had just lost his mother, who died after being
admitted to a public hospital,
his father fell ill and was fearful to
be admitted to a public hospital and he needed to take his father to
India.
[41]
The Applicant’s case is
inter
alia,
that the arbitrator failed to
take into account material facts such as that the fact that the
employee’s leave applications
were previously approved without
difficulty, that the employee was absent from work for an extended
period in July 2016, that he
was the only dedicated person working at
Sterlitzia and that the client expected him to be on the premises.
More so during August
2016, when the client was busy with a security
upgrade project that required the employee’s presence and
assistance. The
arbitrator further ignored the reasons provided by
the Applicant as to why the employee’s leave for August 2016
could not
be approved and he attached no weight whatsoever to this
material fact.
[42]
The arbitration award is certainly not a
handbook example of how an award should look like, but that is not
the test on review.
The ultimate question is whether holistically
viewed, the decision taken by the arbitrator was reasonable based on
the evidence
placed before him.
[43]
I have already alluded to the fact that a
review court is not required to take into account every factor
individually, consider
how the arbitrator treated and dealt with each
of those factors and then determine whether a failure by the
arbitrator to deal
with it is sufficient to set aside the award. This
Court must consider the totality of the evidence and then decide
whether the
decision made by the arbitrator is one that a reasonable
decision maker could make.
[44]
In summary: the arbitrator considered the
fact that the employee had leave credits but was prepared to take
unpaid leave, that he
went on leave against the Applicant’s
orders and that his absence disrupted the Applicant’s
operations. On the other
hand, the employee’s absence was not
inordinate, he had to take his ailing father to India, the disruption
of the Applicant’s
operations had to be juxtaposed with the
employee’s personal circumstances and in view of the employee’s
unfortunate
and unplanned personal circumstances, the instruction not
to go on leave was unreasonable and callous, wherefore dismissal was
not an appropriate sanction as a written or final written warning
would have sufficed.
[45]
In considering whether holistically viewed,
the decision taken by the arbitrator was reasonable, I perused the
transcribed record,
the arbitration award and considered the grounds
for review raised by the Applicant. In my view the arbitrator
considered the dispute
before him namely whether the instruction
given to the employee was reasonable and whether the employee’s
non-compliance
therewith amounted to insubordination that warranted
dismissal. I am satisfied that the arbitrator’s findings are
reasonable
based on the evidence that was placed before him and there
is no reason for this Court to interfere with it on review.
[46]
It follows that the application for review
stands to fail.
[47]
In the premises, I make the following
order:
Order
1.
The application for review is dismissed
with no order as to costs.
______________
Connie Prinsloo
Judge of the Labour Court of South
Africa
Appearances:
For the Applicant: Ms P Govender of
Moni Attorneys
For the First Respondent: Ms A Davies
of Johanette Rheeder Attorneys
[1]
(1996) 8
BLLR 978 (LAC).
[2]
2007 28 ILJ
2405 (CC) at para 110.
[3]
(2014) 35
ILJ 943 (LAC).
[4]
(2014) 35
ILJ 943 (LAC) at paras 18 and 19.