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[2019] ZALCJHB 138
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Sekgotho and Another v Commission for Conciliation Mediation and Arbitration and Others (JR2158/17) [2019] ZALCJHB 138 (12 June 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 2158/17
In
the matter between:
ANGEL
KHALE
SEKGOTHO First
Applicant
NOLUSINDISO
MAJOLA Second
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER
RAYNOLD BRACKS N.O. Second
Respondent
ABSA
BANK
LIMITED Third
Respondent
Heard:
16 January
2019
Delivered:
12 June 2019
Summary:
Review of arbitration award – misconduct
dismissal –
review application dismissed – decision reached by the
commissioner that the dismissal of the employee
was substantively and
procedurally fair, was one that a reasonable decision maker would
arrive at.
JUDGMENT
KING,
AJ
Introduction
[1]
The First and Second Applicants launched an
application to review and set aside the Second Respondent’s
arbitration award
dated 13 September 2017, which was issued under
case number GAJB7668-17 and received by the Applicant on 22 September
2017 (the
award). The application is opposed.
[2]
In terms of the award, the Second
Respondent found that the First and Second Applicant’s
dismissal was substantively and procedurally
fair and accordingly
dismissed their case.
[3]
The First and Second Applicants seek an
order substituting the award with an order that their dismissal by
the Third Respondent
was procedurally and substantively unfair and
directing that the Third Respondent reinstate them from the date of
dismissal with
no loss of benefits, alternatively pay them maximum
compensation with interest,
alternatively
referring the dispute back to the First Respondent for arbitration by
a commissioner other than the Second Respondent.
Background
[4]
Briefly, the facts of this matter are that
the First Applicant was employed by the Third Respondent on 1 October
2005. The
Second Applicant was employed by the Third Respondent
as a temporary employee in 2005 and was made a permanent employee
during
August 2014.
[5]
Prior to the First and Second Applicants
dismissal, the Applicants had referred an unfair labour practice
dispute to the First Respondent
under case number GAJB1826-17.
As at the date of arbitration in respect of the unfair dismissal
dispute (which arbitration
award is the subject of this review
application), the unfair labour practice dispute had not been
adjudicated as a ruling had been
issued by Commissioner Faizel Moai
of the First Respondent on 19 May 2017, in terms of which the
arbitration in respect of the
unfair labour practice dispute was
postponed
sine die
,
pending the outcome of the unfair dismissal dispute. Insofar as
the First and Second Applicants had been reinstated, they
could then
request that their unfair labour practice dispute be re-enrolled for
hearing.
[6]
Both the First and Second Applicants were
issued with final written warnings valid for a period of 12 (twelve)
months during March
2017 for insubordination and for not following
policies and procedures. Both the First and Second Applicants
failed to attend
the disciplinary consultations, which resulted in
the final written warnings being issued and both the First and Second
Applicants
did not challenge the validity of the final written
warnings issued to them following the disciplinary consultation on 16
March
2017.
[7]
The First and Second Applicants were
dismissed from the employ of the Third Respondent following
disciplinary hearings held on 6
April 2017. The First and
Second Applicants failed to attend the disciplinary hearings despite
being issued with notices
to attend the disciplinary hearings.
The charges brought against the First and Second Applicants at the
disciplinary hearings
were as follows: -
“
1.
Charge 1: Insubordination
It is
alleged you failed to adhere to clear instructions from your line
manager to discuss, submit, review and finalise your PD
objective/plan for the year 2017.
2.
None-adherence to Management Standards and Performance Development PD
– policy
It is
alleged that you failed to adhere to the
Management
Standards on Performance Development PD – policy
,
to take any responsibility regarding your PD objective/plan, as set
out in section 2.”
[8]
The First and Second Applicants challenged
the substantive and procedural fairness of their dismissals by
referring an unfair dismissal
dispute to the First Respondent under
case number GAJB 7668-17.
[9]
The unfair dismissal dispute was arbitrated
over several dates. The Second Respondent issued the award on
13 September 2017,
which dismissed the First and Second Applicants’
case on the grounds that the Second Respondent found that the
dismissals
of the First and Second Applicants by the Third Respondent
were substantively and procedurally fair.
[10]
The First and Second Applicants’
grounds for review are reflected in their founding affidavit, which
are amplified in their
supplementary affidavit. I do not intend
repeating such grounds of review here, but will deal with them in the
analysis hereunder.
Analysis
[11]
I
do not deem it necessary to extensively address the relevant test to
be applied in proceedings such as this. The test laid
down in
the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines
[1]
,
namely that an arbitration award will be reviewable if it is one that
a reasonable decision maker could not reach, is well established.
[12]
The
Labour Appeal Court (LAC) confirmed in
Fidelity
Cash Management Services v CCMA
[2]
,
that there can be no doubt under
Sidumo
that:
“
12.1
the reasonableness or otherwise of a commissioner’s decision
does not depend – at least not solely - upon the reasons
that
the commissioner gives for the decision. In many cases the reasons
which the commissioner gives for his decision, finding
or award will
play a role in the subsequent assessment of whether or not such
decision or finding is one that a reasonable decision-maker
could or
could not reach. However, other reasons upon which the commissioner
did not rely to support his or her decision or finding
but which can
render the decision reasonable or unreasonable can be taken into
account. This would clearly be the case where the
commissioner gives
reasons A, B and C in his or her award but, when one looks at the
evidence and other material that was legitimately
before him or her,
one finds that there were reasons D, E and F upon which he did not
rely but could have relied which are enough
to sustain the decision.”
[13]
Ultimately,
whether
or not an arbitration award or decision or finding of a commissioner
is reasonable must be determined objectively with due
regard to all
the evidence that was before the commissioner and what the issues
were that were before him or her.
[14]
The
LAC in
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration
[3]
,
stated the applicable test as follows:-
“
In
short,
a
review 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 which was reasonable”.
[15]
I will now deal with the various grounds of
review as relied on in the First and Second Applicants’
founding and supplementary
affidavits. Gross irregularities and
misconduct committed by the Second Respondent: -
Failing
to take into consideration the totality of evidence adduced during
the arbitration hearing.
[16]
The First and Second Applicants allege that the Second Respondent
failed to consider all the evidence,
which included the background of
the dispute. In this regard, the First and Second Applicants
had referred an unfair labour
practice dispute in regard to the fact
that they were not happy with the work that they were doing and the
pay that they were receiving
after having been promoted from level
BA3 to BA4. The First and Second Applicants allege that the
Second Respondent had a
duty to determine the reasonableness of the
conduct of the Third Respondent to effectively charge them for
exercising their rights,
which were supposed to be protected by the
labour laws of South Africa. The First and Second Applicants
allege,
inter alia
,
further that the Second Respondent effectively committed a gross
irregularity insofar as he ignored what was at the heart of the
dispute before him.
[17]
On consideration of the evidence presented at the arbitration, it is
clear that a significant portion
of the evidence submitted by both
the First and Second Applicants and the Third Respondent, was in
relation to the alleged unfair
labour practice dispute, which had
been brought by the First and Second Applicants. The award sets
out a significant amount
of the detail in relation to the evidence
submitted by the witnesses at the arbitration proceedings and appears
to have considered
the evidence in detail in his arbitration award.
It appears from the transcript of evidence at the arbitration
proceedings
that one of the main elements in regard to the First and
Second Applicants unfair labour practice dispute, was in regard to
the
level of remuneration they had received when they were promoted
from level BA3 to BA4. I am not convinced that the Second
Respondent ignored the evidence presented by the First and Second
Applicants and accordingly, this ground for review cannot succeed.
Splitting
of charges
[18]
The First and Second Applicants allege that the Second Respondent did
not take into consideration the
argument of splitting of charges by
the Third Respondent, despite being extensively dealt with during the
arbitration hearing.
Whilst it may be argued by the First and
Second Applicants that the Second Respondent did not extensively set
out his reasons for
rejecting their submission that there was a
splitting of charges, I am not convinced that the argument submitted
by the First and
Second Applicants in regard thereto, even in the
event of the Second Respondent finding that there had been a
splitting of the
charges, would have resulted in the First Respondent
making any different determination.
Charge
of insubordination vs charge of gross insubordination with reference
to the disciplinary code of the Third Respondent
[19]
Whilst it appears from the evidence submitted at the arbitration
hearing that the
First and Second Applicants were not specifically
charged with gross insubordination, I am not persuaded that the
failure on the
part of the Third Respondent to charge the First and
Second Applicants with gross insubordination should not have
warranted a dismissal.
In this regard, I agree with the Second
Respondent that the Third Respondent had made numerous attempts to
persuade the First and
Second Applicants to sign the PD objectives.
It appears that the First and Second Applicants would not even engage
with the
Third Respondent in any constructive manner and merely
relied on the fact that they had referred an unfair labour practice
dispute
to the First Respondent. I am not convinced that
employees who refer disputes under the auspices of the First
Respondent
can essentially claim “amnesty” for any
subsequent conduct in the workplace pending the outcome of the
dispute already
referred. I am of the view that the First and
Second Applicants’ blatant refusal to engage constructively (or
at all)
with the Third Respondent in regard to their PD objectives,
amounts to insubordination.
[20]
It appears from the evidence that the Third Respondent embarked upon
a process of
progressive discipline in as much as, during March 2017
it issued both the First and Second Applicants with final written
warnings
for insubordination and not following policies and
procedures.
[21]
It is important to note that the Second Respondent in the award does
not find the
First and Second Applicants guilty of gross
insubordination, but in fact at paragraph 92 finds them guilty of
insubordination.
Given the fact that it is common cause that
the First and Second Applicants had already been issued with
final written warnings
for the very same conduct, which they did not
challenge and which remained valid as at the date of their dismissal,
it cannot be
expected of any employer to have issued further final
written warnings as it would defeat the very purpose of progressive
discipline.
[22]
The fact that the First and Second Applicants refused to attend the
disciplinary consultations, which
resulted in the issuing of the
final written warnings as well as the disciplinary hearings, which
resulted in each of their summary
dismissals, is further evidence of
their belligerent and obstructive conduct towards the Third
Respondent as their employer.
[23]
The First and Second Applicants’ submission that the
insubordination charge, if proven, still
does not warrant the
sanction of dismissal cannot be accepted. The First and Second
Applicants had already received final written
warnings which were
valid at the time of their dismissal in respect of the same conduct.
[24]
It is common cause that the First and Second Applicants refused to
attend the disciplinary
consultations, which resulted in the final
written warnings. Further, they did not challenge the validity
of the final written
warnings when they were issued to them. I
am not persuaded after having considered the transcript of the
arbitration proceedings
that the First and Second Applicants
submitted any material evidence, which would result in the final
written warnings issued to
each of them during March 2017, being
declared invalid and of no force or effect.
[25]
In cases of employees being subjected to a final written warning, I
agree with the
judgment in
Transnet
Freight Rail v Transnet Bargaining Council and Others
[4]
,
where it was stated that employees already on a final written warning
leaves the employer with little choice but to dismiss them.
In
this judgment
[5]
the
Labour Court further concluded that the presence of a valid final
written warning at the time of the commission of the
same or similar
form of misconduct should be properly interpreted as aggravating in
nature, and that the principles of progressive
discipline required
such a re-offending employee usually to be considered irredeemable.
Descending
into the arena by assuming that the First and Second Applicants had
legal representation
[26]
Whilst I agree that the Second Respondent should not merely have made
an assumption that the First
and Second Applicants would have sought
legal advice in respect of the final written warnings, it is common
cause that they were
legally represented in their unfair labour
practice dispute. Even if I were to find that the Second
Respondent erred in making
such assumption, such assumption did not
have the result that the Second Respondent descended into the arena.
I am not convinced
that the Second Respondent’s assumption in
this regard would have materially impacted upon the outcome of the
award.
Conclusion
[27]
I therefore conclude that the review application falls to be
dismissed, as I am not persuaded that
the decision reached by the
Second Respondent that the dismissals of the First and Second
Applicants by the Third Respondent were
substantively and
procedurally fair, was not one that a reasonable decision maker would
arrive at.
[16]
In the premises, I make the following
order:
Order:
1.
The review application is dismissed.
2.
There is no order as to costs.
___________________________
L
King
Acting
Judge of the Labour Court of South Africa
Appearances
:
For the Applicant:
Mr
Mkhize of Mkhize Attorneys
For the Third Respondent:
Advocate Z M Novsa
Instructed
by: Cliffe
Dekker Hofmeyr Inc.
[1]
[2008]
2
BCLR
158
(CC).
[2]
[2008]
29
ILJ
964 (LAC).
[3]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 16.
[4]
(2011)
32 ILJ 1766 (LC) at para 38.
[5]
Ibid
at para 42.