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[2019] ZALCJHB 72
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Gololo v Simba (Pty) Ltd and Others (JR1689/17) [2019] ZALCJHB 72 (29 March 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR1689/17
In
the matter between:
ELIZABETH
GOLOLO Applicant
and
SIMBA
(PTY)
LTD
First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
JUSTICE
SANTJIE MTHOMBENI N.O.
Third Respondent
Heard:
17 January 2019
Delivered:
29 March 2019
JUDGMENT
SCHENSEMA,
AJ
Introduction
[1]
This is an application to review and set aside an arbitration award
issued by the
third respondent (the Commissioner) under the auspices
of the second respondent (the CCMA) on 16 July 2017.
[2]
The application for review is brought in terms of s145 of the Labour
Relations Act
[1]
(the LRA). The
review application was filed with this Court on 28 August 2017. The
application is opposed by the first respondent.
[3]
The review application was originally set down for 15 January 2019,
however the applicant
was not present in Court. As a result thereof,
arrangements were made by the first respondent's attorneys of record
to make contact
with the applicant and it was agreed that the matter
would stand down until Thursday 17 January 2019.
[4]
On 17 January 2019, the applicant appeared in Court and sought a
postponement due
to her attorneys of record having withdrawn on 9
April 2018. The applicant further advised that she had approached the
Legal Aid
Board for assistance, who had advised her sometime in
August 2018 that they were not able to assist. Thereafter, the
applicant
approached the Legal Practice Council (LPC) to report the
withdrawal of her attorneys of record.
[5]
The applicant further informed me that she had been advised by the
LPC to approach
the
pro bono
office, which the applicant advised she had done on 15 October 2018
and was advised by the
pro bono
clinic
in Pretoria to return on 17 February 2019. The applicant however was
unable to provide me with any proof that she had approached
the
pro
bono
office in October 2018, however
did provide me with a letter dated 16 January 2019 from the LPC in
which the LPC confirmed that
the applicant had applied for
pro
bono
assistance and requested that the
matter be postponed.
[6]
With regards to the letter, once again this letter provides no
details as to when
the applicant had applied for
pro
bono
assistance and merely states that
the applicant's application is being processed. The letter does not
provide any indication as
to whether the application for
pro
bono
assistance will be granted and
further emphasises that the LPC does not intend to interfere with the
court process.
[7]
The postponement request was opposed by the first respondent which
opposition was
supported by an affidavit in which the first
respondent's attorneys of record set out the various steps it had
taken to alert the
applicant. Furthermore it was submitted by Counsel
that the postponement would serve no purpose as there were no
prospects of success.
[8]
In response to these submissions, the applicant confirmed having
received the correspondence
referred to in the first respondent's
affidavit, however could provide me with no explanation as to why no
further steps were taken
upon the withdrawal of her attorneys of
record. In light of the aforementioned, I therefore did not grant the
applicant's request
for a postponement.
Factual
Background
[9]
I do not intend to repeat the evidence in great detail. It is
sufficient for present
purposes to record that the applicant was
employed by the first respondent as a Tuck Shop Assistant reporting
to Ms Jennifer Dookie.
The applicant's role required her to manage
the till and to attend to other ancillary duties at the tuckshop.
[10]
As a result of three separate incidences during which the applicant
misconducted herself by engaging
in insolent and/or insubordinate
behaviour towards her supervisor, the applicant was charged on 8
December 2016, which disciplinary
enquiry resulted in the dismissal
of the applicant. It is further common cause that the applicant has a
lengthy history of insolent
and insubordinate behaviour which has
been addressed by the first respondent in the form of a final written
warning which had been
issued to the applicant on 4 January 2016. The
final written warning was therefore still valid on 8 December 2016.
As aforementioned
the applicant was dismissed and aggrieved
with the outcome referred an unfair dismissal dispute to the
Commission for Conciliation,
Mediation and Arbitration (CCMA).
CCMA
Proceedings
[11]
The applicant was represented by her union UCIMESHAW during the
arbitration proceedings. The
first respondent called three
witnesses to testify namely Mr Stephen David, Mrs Jennifer Dookie and
Mrs Juliana Chiya. Messrs David
and Dookie both testified in respect
of the applicant's insolent and disrespectful behaviour and Mrs
Chiya, the first respondent's
Quality and Food Safety Manager
testified in relation to the importance of the tuckshop in respect of
the first respondent's business.
Mrs Chiya further confirmed that
there had been numerous complaints in respect of the applicant's
behaviour and despite the lengthy
years of service, such behaviour
could not be condoned.
[12]
In response to the aforementioned, the applicant testified that she
had not shouted at her supervisor
and that the perception that she
had shouted at Mrs Dookie may have been as a result of her loud
voice. The applicant was further
of the view that Mrs Dookie was
inconsiderate of the fact that many of the first respondent's
employees relied on public transport
and it is for this reason that
the tuckshop needed to close at a certain time.
The
Commissioner's award
[13]
The Commissioner in the arbitration award had considered that the
applicant had been progressively
disciplined for insolent and
disrespectful behaviour and that at the time the alleged misconduct
had been committed, the applicant
was on a final written warning.
Furthermore, that the applicant had confirmed that she had closed the
tuckshop before closing time
and based on the evidence submitted was
of the view that the applicant's dismissal was substantively fair.
[14]
The Commissioner further made reference to the Labour Appeal Court
case of
De
Beers Consolidated Mines Ltd v CCMA
[2]
in which the Court held that long service cannot in itself provide a
basis for rendering a dismissal unfair. Long service only
creates a
prima
facie
impression
of reliability, its weight will be offset if it is apparent from
other considerations, in particular the employee's lack
of remorse
and the nature of the offence. In this regard, the Commissioner was
of the view that the applicant had disregarded the
final written
warning and persisted with her misconduct.
[15]
In conclusion the Commissioner was of the view that given the
evidence there was no basis to
interfere with the first respondent's
sanction of dismissal and found that the applicant's dismissal was
substantively fair.
The
Review Application
[16]
Upon receipt of the arbitration award, the applicant launched a
review application. The grounds
of review are set out in the
applicant's founding and supplementary affidavits.
[17]
In respect of the applicant's founding affidavit, the applicant
inter
alia
submits that the award is
susceptible to review as the Commissioner allegedly failed to
consider the conflicting versions in a balanced
and proper manner and
that the sanction of dismissal was too harsh. In respect of the
supplementary affidavit, the applicant added
additional grounds of
review.
[18]
In response to the applicants' founding affidavit, an answering
affidavit was filed by the first
respondent. In summary the first
respondent provided a background to the matter in order to
contextualise the applicant's misconduct
and the seriousness thereof.
The first respondent further made reference to several acts of
insolent and insubordinate behaviour
and that ultimately this had
resulted in the applicant receiving a final written warning. Despite
the final written warning, the
applicant persisted with her
inappropriate behaviour on 24 November 2016, 1 December 2016 and 5
December 2016.
[19]
During the arbitration proceedings, the applicant did not deny that
she had received a final
written warning for similar misconduct and
attempted during the arbitration proceedings to evade its application
by suggesting
that the final written warning was not valid at the
time that the notification was issued. However, given the
date
of the notification, it is clear from the evidence submitted
that the final written warning was valid at the time.
[20]
The first respondent has further submitted that the attempt at
progressive discipline has not
been successful in that the applicant
has refused to accept the wrongfulness of her actions. The record
makes reference to numerous
incidences of past acts of insolent and
disrespectful misconduct as well as the attempts made by the first
respondent to rectify
the applicant's behaviour. It is clear from the
record that prior to imposing the final written warning, that
attempts were made
by the first respondent to engage with the
applicant for purposes of guiding her to improve her behaviour.
Despite these efforts,
the applicant failed to recognise the
assistance offered and persisted with her misconduct.
[21]
Of significance is that despite the applicant's criticism of the
Commissioner's award, the applicant
had conceded during the
arbitration proceedings that she was guilty of the misconduct and
tendered an apology. Accordingly the
first respondent has submitted
that in light of this concession there is no basis for the
submissions made by the applicant that
the Commissioner had erred in
his findings that the applicant had committed misconduct.
[22]
In conclusion the first respondent has submitted that the award is
clearly one that a reasonable
decision maker could make and that
given the evidence led at the arbitration, that the Commissioner's
award clearly falls within
the band of reasonableness and does not
warrant any interference by this Court.
Analysis
[23]
Section 145 of the LRA provides as follows:
‘
145. Review of
arbitration awards –
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings
under the auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award –
…
(2)
A defect referred to in subsection (1), means –
(a)
that the Commissioner;
(i)
committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii)
committed a gross irregularity in the conduct the arbitration
proceedings; or
(iii)
exceeded the commissioner's powers…’
[24]
The general principle is that a gross irregularity should concern the
conduct of the proceedings
rather than the merits of the
decision.
[3]
When a
commissioner fails to have regard to material facts, this may
constitute a gross irregularity in the conduct of the
arbitration
proceedings because the commissioner may have unreasonably failed to
perform his or her mandate and thereby prevented
the aggrieved party
from having his/her case fully and fairly determined.
[4]
A review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a)
of
the LRA.
[25]
For a defect in the conduct of the proceedings to amount to a gross
irregularity, as contemplated
in section 145(2)(a)(ii), the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result.
The result will only be
unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that was before
the arbitrator.
[5]
Material errors of fact, as well the weight and relevance to be
attached to particular facts, are not in and of themselves sufficient
for an award to be set aside, and are only of any consequence if
their effect is to render the outcome unreasonable.
[6]
[26]
My analysis commences with a review of the record and the evidence
that was submitted during
the arbitration proceedings. It is common
cause that the applicant had previously received a final written
warning for similar
misconduct. In respect of the evidence submitted
by the first respondent's witnesses, it is clear that the first
respondent went
to great lengths to engage with the applicant in
respect of her inappropriate conduct and did not immediately impose a
final written
warning, in instances where in all likelihood such a
sanction was warranted. The applicant however, despite this
assistance, failed
and/or refused to accept the assistance given in
order to alter her conduct and instead elected to continue conducting
herself
in a highly inappropriate manner.
[27]
It is further trite that in certain instances, the length of service
may not be a mitigating
factor but an aggravating one. I am of the
view that given the applicant's length of service and the numerous
attempts by the first
respondent to engage with the applicant in
respect of her misconduct, that the applicant's years of service
cannot be seen to be
a mitigating factor. The first respondent in its
numerous attempts, clearly took into consideration the applicant's
years of service
as it did not immediately impose a sanction of a
final written warning with reference to the previous similar
misconduct committed
by the applicant.
[28]
At issue in the proceedings under review is whether the applicant has
laid any justifiable and
valid basis for the setting aside of the
award.
[29]
It is my view that for an employee's conduct to constitute gross
insubordination the evidence
is required to demonstrate a persistent
and wilful refusal to comply with an instruction. Our Courts
have described insubordination
as
"a
wilful and serious refusal by an employee to obey a lawful and
reasonable instruction or where the conduct of an employee
poses a
deliberate (wilful) and serious challenge to the employer's
authority."
[7]
[30]
The Labour Court has distinguished between insolence (repudiation by
an employee of his duty
to show respect) and insubordination (refusal
to obey an employer's instructions).
[8]
Both forms of misconduct are properly embraced by the terms of
'insubordination' as used in Schedule 8 – Code of good
practice:
dismissal of the LRA (the Code).
[31]
Insubordination is possibly a more serious offence because it
presupposes an intentional breach
by the employee of the duty to obey
the employer's instructions. The Code requires that defiance must be
'gross' to justify dismissal.
This means that the insubordination
must be serious, persistent and deliberate, and that the employer
should adduce proof that
the employee was guilty of defying an
instruction.
[9]
[32]
Grogan, in Workplace Law, states the following:
[10]
‘
The best measure
of the gravity of insubordination and/or 'insolence' is the effect it
has on the employment relationship. Other
things being equal, an
isolated refusal to carry out an instruction is less likely to
destroy the relationship between the employer
and the employee than
sustained and deliberate defiance of authority. The latter form of
insubordination is well illustrated by
Theewaterskloof Municipality v
SALGBC (Western Cape Division). The Labour Court held that a senior
manager who accepted payment
of an allowance well knowing that he was
not entitled to it, then offered to repay the amounts in derisory
instalments, had deliberately
breached the trust relationship. Given
the destruction of the employment relationship and his total lack of
remorse, the employee
could not rely on either the general right to
progressive discipline or on his long and previously unblemished
service record.
The court upheld the employee's dismissal.’
[33]
In
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
,
[11]
the Labour Appeal Court held that ‘
[t]he
offence of insubordination in the workplace has, in this regard, been
described by the Courts as a wilful and serious refusal
by an
employee to obey a lawful and reasonable instruction or where the
conduct of an employee poses a deliberate (wilful) and
serious
challenge to an employers' authority’
and
in that regard, the Labour Appeal Court referred to the decision of
Commercial
Catering and Allied Workers' Union of SA and Another v Wooltru Ltd
t/a Woolworths (Randburg).
[12]
In that matter the Industrial Court held that:
"the
offence of insubordination is constituted by the following: When the
employee refuses to obey a lawful and reasonable
command or request
and the refusal is wilful and serious (wilful disobedience), or when
the employee's conduct poses a deliberate
(wilful) and serious
challenge to the employer's authority."
[13]
[35]
This view has been endorsed by Grogan who, citing the above
authorities, noted that ‘
employees
are obliged to respect and obey their employers because lack of
respect renders the employment relationship intolerable
and
disobedience undermines the employer's authority’.
[14]
[36]
It
is trite that by its very nature the employment relationship places
certain obligations upon the employee, two aspects of which
are
generic duties of the employee to maintain a harmonious relationship
and to co-operate with the employer
[15]
.
Brassey has further noted that the employee’s obligation to
ensure a harmonious relationship with the employer and other
staff
requires that s/he should do nothing to undermine it.
[16]
[37]
I have further considered the matter of
Head
of Department of Education v Mofokeng and Others
[17]
which has stated that the first enquiry is whether the facts or
considerations ignored were material, which will be the case if
a
consideration of them would have caused the commissioner to come to a
different result. If this is established, the result arrived
at by
the commissioner is
prima
facie
unreasonable. A second enquiry must then be embarked upon, to
determine whether there exists a basis in the evidence overall to
displace the
prima
facie
case of unreasonableness and if the answer to this enquiry is in the
negative, then the decision stands to be set aside on the
basis of
unreasonableness.
[38]
In applying the above to the current matter, I am of the view that
the Commissioner's award is
one that a reasonable decision maker
could make, given the evidence. It is clear that the applicant has
failed to take into consideration
her behaviour and the impact this
behaviour has had on the employment relationship. It is further
obvious from the evidence, that
the applicant's misconduct is both
persistent and deliberate and is further a serious challenge to the
authority of the employer.
I am therefore of the view that the
applicant has failed to demonstrate a basis for the review of the
Commissioner's arbitration
award.
Costs
[39]
In regards to costs, even though I am of the view that this review
application was ill-considered,
upon a consideration of the
requirements of law and fairness, I am of the view that each party
must be burdened with its own costs.
[40]
In the premises, I make the following order:
Order
1.
The applicant' review application is dismissed;
2.
Each party is to pay its own costs.
________________________
H.
Schensema
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Self-represented
For the First Respondent:
Advocate
Viljoen
Instructed
by: Cowan-Harper-Madikizela
Attorneys
[1]
66
of 1995, as amended.
[2]
(2000)
21 ILJ 1051 (LAC).
[3]
Herholdt
v Nedbank Limited (COSATU as Amicus Curiae)
2013
(6)
SA
224 (SCA) at para 10.
[4]
Id
fn 3 at para 16.
[5]
Id
fn 3 at para 25.
[6]
Id
fn 3.
[7]
See:
Commercial
Catering & Allied Workers Union of South Africa & Another v
Wooltru Ltd t/a Woolworths
(Randburg) (1989) 10 ILJ (IC) at 314 H-J.
[8]
Grogan
Workplace Law 11
th
Edition (Juta, 2014) at pages 251-255.
[9]
City
of Johannesburg v Swanepoel N.O. and
Others
(2016) 37 ILJ 1400 (LC).
[10]
Id
fn 8 at page 253.
[11]
(2015)
5 BLLR 484
(LAC) at para 19
[12]
[1989]
10 ILJ 311 (IC).
[13]
Id
fn 12 at 314H – I
[14]
Grogan
Workplace Law 10th Edition (Juta, 2009) at page 51.
[15]
Public
Servants Association of South Africa obo Khan v Tsabadi NO and
Others
(2012) 33 ILJ 2117 (LC).
[16]
Brassey,
Employment and Labour Law (Juta,1999) Volume 1 at §D2: 31
[17]
(2015)
36 ILJ 2802 (LAC).