IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J3838/98
In the matter between :
GLAXO WELCOME SA (PTY) LIMITED Applicant
and
MASHABA, EUDOCIA BONGI First Respondent
G SHAKOANE N.O. Second Respondent
CHAIRPERSON OF THE GOVERNING BODY
OF THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third Respondent
JUDGMENT
MARCUS AJ
INTRODUCTION
1 In response to an application by the first respondent (“the employee”) to have
an arbitration award in her favour and issued by the second respondent (“the
Commissioner”) made an order of Court, the applicant (“the Company”) seeks to
review the arbitration award in terms of section 145 of the Labour Relations Act
66 of 1995 (“the Act”).
2 The employee commenced her employment in the position of Assistant
Human Resources Officer on 1 May 1995. At the time of her dismissal on 20
June 1997, she was employed as a Human Resources Officer. The employee’s
duties within the Human Resources Department covered the administration of
employee files, loans administration, liaison with brokers regarding employee
benefit applications, preparation of employment contracts, administration
regarding recently engaged employees, recruitment of shop floor temporary staff
and maintenance of records.
3 On 5 June 1997, a disciplinary enquiry was convened by the Company at
which the employee faced the following charges:
3.1 The unauthorised and insubordinate distribution of a questionnaire ostensibly
to evaluate department performance and calculated to create the false impression
that it was undertaken as a segment of a bona fide survey whereas it was intended
simply to provide material for her defence at a previous disciplinary enquiry;
3.2 The negligent rehiring of temporary employees who had previously been
dismissed for the offence of “trashing” the factory floor.
3.3 As a member of the Human Resources Department, creating obstacles to the
proper running of the disciplinary process by:
3.3.1 insisting on outside representation at an appeal knowing this to be contrary
to established policy;
3.3.2 failing to comply with a request that an appeal be supported by written
motivation;
3.3.3 relying upon the aforesaid conduct to enter into a dispute with the
Company;
3.4 Continuing argumentative and insubordinate conduct towards managers of the
Company;
3.5 Compounding the transgression of an employee by facilitating a breach of
procedures in relation to the rehiring of informal workers.
4 The chairperson of the enquiry concluded that due to the continuous and
repeated unacceptable performance and work place behaviour of the employee,
the trust relationship had been irreparably damaged. The outcome of the
disciplinary enquiry was that the employee was dismissed.
5 The dispute was referred to the CCMA. The employee claimed that her
dismissal was both substantively and procedurally unfair. The dispute was not
resolved by way of conciliation. The matter was referred to arbitration. The
Commissioner found that the dismissal of the employee was unfair and ordered
her reinstatement with retrospective effect. It is this arbitration award which the
Company seeks to have reviewed and set aside.
THE TEST FOR REVIEW
6 The test for review in terms of section 145 of the Act has been authoritatively
settled by the Labour Appeal Court in Carephone (Pty) Ltd v Marcus N.O. &
Others (1998) 19 ILJ 1425 (LAC) . The question to be asked is whether there is
“a rational objective basis justifying the connection made by the
administrative decisionmaker between the material properly available to
him and the conclusion he or she eventually arrived at ” at 1435 E.
7 Before dealing with the grounds of review advanced in the present case, it is
appropriate that certain general observations be made. The Company complains
that the Commissioner erred in a number of respects. The attack, however, is
essentially couched as a failure by the Commissioner to apply his mind to the
evidence before him. The Commissioner, who abides the decision of the Court,
has filed an affidavit in which he states, inter alia , the following:
“12.2 I wish to state that my findings are accurate, and were made upon full
and proper consideration and assessment of the evidence given by the parties
at the hearing. But due to the fact that I am required by the Act to give an
award with brief reasons within fourteen days after the hearing is finalised, I
could not reproduce and reason on each and every little aspect of the
evidence. I have expressly stated, for the parties and readers of my award to
be aware that I have fully considered the evidence, in paragraph 7 (seven) of
my award, that I have indeed done so but that I would nonetheless briefly
refer to the evidence of each party in my award. .... ”
8 In general terms, a Commissioner cannot be expected to reflect every detail of
the evidence he or she has heard in an arbitration award. This is not required of
courts of law and is manifestly not required in a process which is designed to be
expeditious. Thus, as a point of departure, the mere failure by a Commissioner
to deal with a particular aspect of evidence in the award is not in itself indicative
of a failure to apply the mind. I should add, however, that a statement by a
Commissioner, as in the present case, that the findings were “ accurate and made
upon full and proper consideration and assessment of the evidence ” is in no
way binding upon a court and does not relieve the court of the duty to assess the
justifiability of the award.
9 A further point to be emphasised is that the proceedings before the
Commissioner are, in essence, fresh proceedings to determine the issues in
dispute. In the present case, the Commissioner was required to determine
whether the dismissal of the employee was procedurally and substantively fair. In
the process of adjudication, the Commissioner is obviously obliged to have regard
to all relevant evidence. In a case such as the present, relevant evidence would
include the record of the disciplinary enquiry and the internal appeal. It must be
appreciated, however, that the Commissioner will usually hear oral evidence at the
arbitration hearing and that evidence will have to be considered in the light of the
evidence as a whole, including such documentary evidence as may be tendered.
In the process, the Commissioner will often be called upon to make findings of
credibility.
10 In the present case, the record of the disciplinary enquiry has been furnished.
It does not appear to be a verbatim transcript of everything that occurred. In
addition, the record of the arbitration before the Commissioner has been
transcribed. The transcription is poor and frequently difficult to follow. It runs
to 171 pages. There has been no attempt by the parties to make sense of the many
gaps in the transcription. In addition, the Company also furnished the
Commissioner with a bundle of documents.
11 It is against this general background, that I propose to consider the individual
grounds of review.
THE FAILURE TO CALL WITNESSES
12 The Company contends that a Commissioner is not a mere “ sanguine trier of
fact”. In the present case it is argued that it was clear to the Commissioner that
the Company failed to call a particular witness, Ms Lynn Roslan. It is argued that
the Company’s failure ought to have been remedied by the Commissioner
exercising his powers of subpoena in terms of section 142 of the Act. This
section vests a Commissioner with the power, inter alia , to subpoena for
questioning any person who may be able to give information or whose presence at
the conciliation or arbitration proceedings may help to resolve the dispute.
13 While it is clear that a Commissioner possesses the power to subpoena
witnesses, it is a power which, in my view, ought to be exercised only in
appropriate cases lest the wrong impression be created that the Commissioner is
not discharging his or her functions impartially. It is incumbent on an applicant
for review to demonstrate that the Commissioner abused his discretion or failed to
exercise a proper discretion.
14 In the present case, the Commissioner chose to answer the allegation that he
ought to have exercised his powers under section 142 of the Act. He states that
the matter was initially set down for hearing on 15 September 1998. Both parties
arrived for the hearing and it appeared that they intended using documentary
evidence which had not been properly prepared and that they did not propose to
adduce oral evidence. The Commissioner then states the following:
“20.4 I then advised them that they must go prepare and properly compile
and paginate their documentary evidence and make enough copies for
everybody at the hearing. I informed them to include all relevant documents
they wanted to use. Also, I impressed on them that they must bring all the
witnesses involved in the case including those not referred to in the
documents. Mr. Mnguni was present and represented the applicant on that
day. I then postponed the matter to the 30 September 1998. In addition
the parties received notice of the hearing from the CCMA case management
which is clear and selfexplanatory, and had time to determine what evidence
they required and what witnesses to call . Indeed, I received no complaint or
request from any of the parties that I should subpoena any witness or call for
any additional documents from any party who perhaps did not want to
release them or otherwise. ” (emphasis added)
15 This passage makes it clear that the Commissioner impressed upon the parties
that they must bring all witnesses involved in the case, including those not referred
to in the documents. In such circumstances, it seems to me that no criticism can
be directed at the Commissioner for failing to exercise his powers of subpoena.
THE QUESTIONNAIRE
16 The employee was subject to two disciplinary enquiries. The first was held
on 10 March 1997 (“the first enquiry”) and the second on 9 June 1997 (“the
second enquiry”).
1
17 After the commencement of the first disciplinary enquiry, the employee
distributed what the Company considered to be a misleading and unscientific
questionnaire. In my view, the Company’s misgivings about the misleading and
unscientific nature of this questionnaire were entirely justified The distribution
of this questionnaire did not form the subject matter of any charge at the first
disciplinary enquiry. This questionnaire did, however, form the subject matter of
the first charge at the second enquiry.
18 Although the questionnaire did not form the subject of any charge at the first
enquiry, it nevertheless featured at that hearing. It was the subject of evidence
given by the Human Resource Manager, Ms Roslan, who stated:
“I would like to express my concern with this questionnaire going out as an
HR document without my knowledge. I object to it strongly. I am
concerned about your reason for doing this. I am concerned about the image
of the HR Department. ”
19 The chairperson of the first enquiry clearly took the questionnaire into
account, at a minimum, in relation to sanction. He stated:
“An indication of your interpersonal relationships is that survey that you put
around. Not one of the people with whom you have had a clash is on that
list. It was done in an unprofessional way. I would not have come down so
hard on you on the interpersonal relations issue if you had not done this
survey. It is the number of clashes and this survey . You may have done it
in good faith, but you have done it in a way that can be interpreted as
undermining.” (emphasis added)
20 It will be recalled that it was the distribution of this questionnaire that formed
the subject matter of the first charge at the second enquiry. That charge was
framed as the unauthorised and insubordinate distribution of a questionnaire
ostensibly to evaluate departmental performance and calculated to create the false
impression that it was undertaken as a segment of a bona fide survey, whereas it
was intended simply to provide material for defence at the previous disciplinary
enquiry.
21 The Commissioner found that this charge had been “ wrongly put” to the
employee “ on the grounds that it has been dealt with and finalised earlier in
the disciplinary enquiry of 10 March 1997 ". The Commissioner found that
“this charge was dealt with and adjudicated on or finalised in that hearing ”
and that the Company could not “ recharge the applicant with the same
offence”.
22 The Company contends that the Commissioner made a superficial and
inaccurate reading of the record of the first enquiry by reason of this conclusion.
I do not agree. The distribution of the questionnaire clearly figured in the
sanction imposed by the chairperson in the first enquiry. The employee was
punished more severely than would have been the case had she not distributed the
questionnaire. The chairperson says this explicitly. It was unfair of the
Company to take the questionnaire into account at the first enquiry in
circumstances where it did not form the subject of any charge. For this, the
employee was unfairly sanctioned. The unfairness was compounded by making
the questionnaire the subject of one of the charges at the second enquiry.
Although the Commissioner speaks of this charge being “ finalised” at the first
hearing, this somewhat inaccurate description does not detract from the foundation
for his conclusion that the employee was effectively subjected to double jeopardy.
In my view, therefore, there is no substance in this ground of review.
THE NEGLIGENT REHIRING OF TEMPORARY EMPLOYEES
23 The second charge against the employee concerned the allegation that she had
negligently rehired temporary employees who had previously been dismissed. In
this regard, the Commissioner made the following finding:
“I am satisfied that the respondent has failed to prove on a balance of
probabilities that the applicant knew or that she could reasonably have been
expected to know that the rehired employees had been dismissed before.
This is so because on the evidence of Mr Van Breda there could not have been
any records of their dismissals kept. He was just instructed to chase them
out of the premises immediately, no hearing was held. Also, the respondent
could not produce any evidence of the alleged records. ”
In paragraph 10 of his award, the Commissioner stated further:
“Mr Van Breda is a security manager and is responsible for all security
matters at the respondent. .... His evidence was briefly that the casual
employees allegedly rehired by the applicant were actually chased out of the
respondent’s premises by him upon the instructions of one Isa Donninger.
The said instructions were given by ‘a call’. There were no charges laid
against them and no disciplinary hearing occurred as ‘they were just taken
away immediately’ ”.
24 In this regard, the attack by the Company on the arbitration award alleges that
in paragraph 10 “ and following ” evidence that is attributed to Mr Van Breda “ was
in fact tendered by the first respondent ”. The Commissioner responded to
this attack in the following terms:
“22 I deny that the evidence attributed to Mr Van Breda in paragraph 10
and following paragraphs in my award was in fact tendered by first
respondent. I insist that it was given by Mr Van Breda before me as CCMA
Commissioner, and is a summary of his evidence both in chief and under
crossexamination.”
25 The Company then filed a supplementary affidavit, as it was entitled to do in
terms of Rule 7A of the Rules of the Labour Court. In the supplementary
affidavit it is contended that Mr Van Breda never gave evidence that there were no
charges laid against the casual employees and that no disciplinary hearing
occurred.
26 The Company now seeks to place great weight on what it contends was the
misconstruction of the evidence of Van Breda. The allegation in the founding
affidavit is couched in broad and general terms. No attempt is made to identify
with any degree of specificity what evidence was wrongly attributed to Van
Breda. It was to this broad and generalised allegation that the Commissioner
responded. It was only thereafter that the Company supplemented its founding
affidavit in order to particularise the facts on which it based its contention that the
Commissioner wrongly attributed evidence to Van Breda.
27 In my view, the Commissioner’s statement to the effect that no charges were
laid against the casual employees and that no disciplinary hearing occurred, is a
legitimate inference from the undisputed evidence of Van Breda that on the
morning in question, he “ escorted them out of the production areas through
the security gates and I took in their security cards ”. Van Breda agreed that
the casual employees were “ dismissed immediately ” (Record, p 55).
28 The attack launched by the Company on this aspect of the award, misses the
point. At issue was whether or not the employee was negligent in rehiring
temporary employees who had previously been dismissed. She admitted that she
was responsible for recruiting the individuals concerned (Record, p 113). What
the Company was required to establish was whether she acted negligently. In
other words, it was for the Company to demonstrate that she ought to have known
that the employees in question had previously been dismissed or that she ought to
have taken steps to ascertain the correct position. In this regard, her evidence
was that after the event in question her manager told her that the casual employees
she had hired had previously been dismissed and that they should not have been
rehired. The Record reflects the employee as stating, “ I told her look, I have
looked in the file; there was nothing, so there (was) nothing stopping me ”
(Record, p 113). The Record also reflects the following evidence given by the
employee at the arbitration hearing:
“So now so when I was called to take this people there was nothing in this file,
so that is why I am asking you Mr Nguni about the policy and if there was
any documents there, Mr Nguni why didn’t you do us the pleasure, for us to
bring us a copy, to show me because (indistinct) I did not see it. And you
knew even in the correspondence after that is that, that my reference is that
there was nothing in this file. You knew that that would come out in this
hearing.”
I have reproduced this passage from the evidence as it appears. Although it is
not entirely grammatical, it is clear that the employee insisted that her defence was
that she found nothing in the files relating to the dismissal of the casual
employees. More importantly, however, Mr Mnguni, who represented the
Company at the arbitration proceedings was specifically alerted to this question
and yet failed to produce any evidence that there were files reflecting the dismissal
of the casual employees. This aspect of the employee’s evidence was not subject
to crossexamination and hence stands unchallenged.
29 The Company now contends that it’s chief witness, Mr Mnguni, stated at the
arbitration hearing that:
“It was Bongi Mashaba’s duty as Human Resources Officer to control and
maintain the number of readily available temporary staff in the pool list. It
was also imperative on her to review all current existing contracts with
departmental heads quarterly each year. This is after three months. This
function is clearly outlined in the Company’s policy documents ... ”.
30 In the supplementary affidavit deposed to by Mr Mnguni he states:
“35 I was satisfied that this evidence was conclusive on the issue and for
that reason did not take steps to produce the files of the employees in
question. In this regard the second respondent ignored relevant
considerations. I reexamined those files after receiving the determination
from which I confirmed that, contrary to the evidence of the first respondent
and in support of my evidence, there were indeed letters of dismissal on the
relevant files. ”
31 In my view, Mr Mnguni had no right to regard his own evidence on this issue
as conclusive in the light of the employee’s own uncontested evidence that she
looked in the files and found nothing there. It is of no avail for the Company to
adduce fresh evidence on review that was never placed before the Commissioner
in an endeavour to establish that the Commissioner failed to exercise a proper
discretion. In the Carephone case (supra) , the Labour Appeal Court was
careful to emphasise that scrutiny of the decision occurs in the light of the material
“properly available ” to the Commissioner. I am prepared to assume, without
deciding, that a Court of review may be entitled to entertain new evidence
pursuant to its equitable jurisdiction and inherent powers in terms of section 151
of the Act. At a minimum, however, it would be necessary for the party seeking
to adduce such evidence to satisfy the long established tests for receiving fresh
evidence on appeal. This would entail, inter alia , demonstrating that the
evidence was not available at the trial. (See Colman v Dunbar 1933 AD 141 ).
In the present case, the Company would not be able to satisfy the first requirement
for adducing fresh evidence. I am accordingly of the view that the attack on this
finding fails.
CREATING OBSTACLES TO THE DISCIPLINARY PROCESS
32 The third charge levelled against the employee is that as a member of the
Human Resources Department she created obstacles to the proper running of the
disciplinary process. Three instances of such obstruction are specified, namely,
insisting on outside representation at an appeal knowing this to be contrary to
established policy; failing to comply with the request that an appeal be supported
by written motivation and relying upon the aforesaid conduct to enter into a
dispute with the Company.
1
33 With regard to the alleged insistence on outside representation at an appeal,
the Commissioner stated the following concerning the employee’s evidence:
“.... she testified that she never insisted on outside representation, the shop
steward who represented her at the disciplinary hearing on 7 June 1997, Mr
Thwala, has advised and initiated the involvement of a Union official when
the matter went on appeal where it was to be chaired by the respondent’s
CEO. She stated that respondent had also caused the Union official to be
involved because they communicated directly with the Union in trying to
resolve the issue. She stated that she did provide the particulars relating to
the grounds of her appeal (she referred me to the appeal form she lodged)
and that in any event the respondent at no stage indicated to her that the
particulars she provided were not sufficient motivation for her appeal. She
said that it is her Union representatives her advised her on declaring a
dispute against the respondent. ”
The Commissioner then concluded as follows:
“... the respondent has failed to prove on a balance of probabilities that the
applicant insisted on outside representation. On the evidence given by Mr
Twala, whom I found to be honest and reliable, as well as on the
documentary evidence handed in, particularly the correspondence between
the respondent and the Union, it is clear that the applicant did not insist on
outside representation. ”
With regard to the failure to motivate the appeal, the Commissioner found that
“there is no evidence from the respondent either to prove that there is a rule
or standard relating to this type of conduct or at least to prove that the
applicant was ever called upon to provide such written motivation on the
ground that the motivations in her appeal form were insufficient and that she
was made aware of the consequences of not complying therewith. ”
34 In his affidavit filed in response to the review, the Commissioner stated:
“In addition, when the Union (official) became directly involved with the
dispute on behalf of the first respondent it was after and as a result of
correspondence emanating from the applicant to the Union officers in respect
of the dispute. In the circumstances, therefore, the first respondent could
not be said to have in any way ‘insisted on outside representation at an
appeal knowing this to be contrary to established policy’. ”
35 It is important to appreciate that this charge flows significantly from the
employee’s status as a member of the Human Resources Department. Indeed,
the charge is prefaced by a reference to this status. The Company’s disciplinary
code and procedure sets out the rights of employees in the following terms:
“4 EMPLOYEE RIGHTS
Any employee who is subject to the Disciplinary Procedure shall have the
following rights:
4.1 To be informed beforehand what the complaint (clearly formulated
and not vague) against him is;
4.2 To be present at the enquiry;
4.3 To have the hearing take place timeously;
4.4 To be given adequate notice prior to the hearing (minimum 24 hours);
4.5 To be represented by a shop steward or another employee of his own
choice (if required) ;
4.6 To be given an opportunity to state his case and to call witnesses;
4.7 To be able to challenge evidence presented against him and to cross
examine witnesses;
4.8 To have an interpreter (if required);
4.9 To a finding and the reasons therefor and to be advised of disciplinary
action to be taken;
4.10 To appeal to a higher level of authority against the finding or
disciplinary action taken. ” (emphasis added)
36 The background to this charge flows from the first disciplinary enquiry. At
that enquiry, the employee was found guilty. The sanction comprised a written
warning. The employee appealed against this finding. The appeal form was
signed by the employee and a representative, Mr Tsubela, who was a Union
representative, but not a shop steward or employee. The reasons for the appeal
are stated in the appeal form as being “ incorrect procedure, inappropriate
disciplinary action and new evidence ”. Save for this terse description, no
further detail was submitted by the employee.
37 On 10 April 1997, Mr Mnguni addressed a memorandum to the employee in
which he advised her that the disciplinary code did not provide for outside
representation. The memorandum stated:
“Following your request on 8/4/97 for a written submission regarding the
above matter, I wish to state the following:
1 That, in terms of section 14 of the Company’s recognition and
procedural agreement which provides that ‘the Company’s existing grievance
and disciplinary code and procedure will form part of this agreement’.
2 That, in terms of section 4.5 of the Code which provides that ‘any
employee who is subject to the disciplinary procedure shall have the right to
be represented by a shop steward or another employee of his/her own choice.’
It is therefore recommended, in this instance and in the spirit and letter of
our recognition agreement that your choice of representation be considered
among the 550 (approximately) employees presently employed by our
Company.”
38 There is a further memorandum dated 5 May 1997 from Mr Mnguni to the
employee in which he states the following:
“In response to your memo of 30 April 1997, I wish to clarify the following
factors regarding the above matter.
1 After my meeting with Mr Collier on Wednesday, 26 March 1997,
numerous attempts were made by myself to convene a feedback meeting with
your initial employee representative unfortunately these meetings did not
materialise.
2 On Friday 28 March I verbally informed you that in accordance with
disciplinary regulations, outside representation could not be allowed. You
were further informed by myself that a written motivation regarding our
appeal should be submitted to Angela (Mr Collier’s secretary) to enable Mr
Collier to set up a date for your hearing on his return.
3 I have since established that no written motivation has been
submitted.
4 I further urge you to submit a written motivation for Mr Collier’s
perusal and to enable him to consider your case as soon as possible as you
have requested. ”
39 On 19 May 1997 a meeting was held between the Company and Union
representatives regarding the employee’s appeal. The minutes reflect, inter alia ,
that Mr Tsubela expressed his concern that the Company was delaying the appeal
process by not allowing the employee “ to be represented by a Union official ”.
The minutes also reflect that Mr Mnguni “ stressed that in compliance with our
disciplinary code, Bongi could not be presented by a Union official ”. The
minutes also reflect that “ it was further stressed that regarding the question of
perceived delay by the Union, the Company held the view that Bongi is
causing the delay by not motivating her appeal in writing as requested. ”
40 In a letter dated 23 May 1997 from Mr McClintock, the Human Resources
Director to Mr Tsubela he states, inter alia that “ the reasons stated on her
appeal form are simply a restatement of the very broad categories set out in
the disciplinary procedure ”. The letter then spells out the reason why
motivation is required in the following terms:
1
“As you will know an appeal will only, in exceptional circumstances require a
full rehearing of the case and to determine what form the appeal should take
it is essential that Mrs Mashaba complies with the requirement that she spell
out in detail the specific grounds and motivation of her appeal. ”
The letter states further:
“In my view there is little to be achieved by further debating the reasons for
the delay of the appeal. The simple route forward to allow the appeal to be
dealt with is for Mrs Mashaba to now furnish her written motivation and
thereafter the appeal will be handled without further delay. She and her
representatives will be given an opportunity to motivate the appeal in
person.”
41 In an apparent response to this letter, Mr Tsubela faxed Mr McClintock and
stated “ we will proceed with our dispute to CCMA because you seem to take
the side of your IR unit. .... You can refuse to meet with us now but you will
have to come to the CCMA meeting ”.
42 In my view the evidence before the Commissioner at least demonstrated the
following:
42.1 There was a Company rule prohibiting outside representation.
42.2 The employee was fully aware of that rule.
1.1
42.3 The employee was asked to motivate the reasons for her appeal.
42.4 The employee failed to motivate the reasons for her appeal.
43 In the light of this evidence, I have some difficulty in appreciating the
Commissioner’s conclusions. Putting the matter at its lowest, it seems absolutely
clear that the employee went along with outside representation well knowing that
this was not envisaged by the Company’s disciplinary code. The Union official,
Mr Tsubela, was the employee’s representative. The mandate for this
representation must have emanated from the employee for otherwise Mr Tsubela
would have acted without instructions. This was never suggested. (Record, p
41). Whether it is strictly accurate to say that the employee “ insisted” on
outside representation is not really material. It was within the employee’s power
to terminate Mr Tsubela’s mandate at any time. The reason for the prohibition
on outside representation was explained to the Commissioner by Mr Mnguni at the
arbitration hearing. (Record, p 15). I am not presently concerned with the
wisdom of this policy.
44 The employee denied that she “ insisted” on outside representation. She
stated that it was her representative who said that he did not think that “ he would
be able to cope at that level with the CEO chairing the appeal. So he was
going to ask someone from his office. ” (Record, pp 94 95). This may well
explain the employee’s thinking on the issue but it does not detract from the fact
that she went ahead knowing that outside representation was contrary to Company
policy.
45 In my view, the Commissioner’s conclusions on the issue of outside
representation are simply not justifiable in the sense in which that term is used in
the Carephone case (supra) . The Commissioner appears to have placed undue
emphasis on the way in which the charge was formulated. In a narrow sense, the
employee did not “ insist” on outside representation. That, as I have indicated,
was not the gravamen of the charge. She manifestly went along with outside
representation knowing this to be contrary to the Company’s policy.
46 I wish to emphasise that although I have found the Commissioner’s conclusion
on this issue not to be justifiable, I do not wish to be understood as making any
finding on the Company’s policy precluding outside representation. There is
simply not sufficient information before me to reach any conclusions in this
regard.
47 With regard to the second limb of the charge of obstructing the disciplinary
process concerning the absence of motivation for the appeal it is quite clear that
the appeal form is presented in the scantiest of detail. The employee’s evidence
that she did provide the particulars relating to the grounds of her appeal and that at
no stage did the Company indicate to her that the particulars provided were not
sufficient is simply not sustainable on the evidence. In this regard, the Company
in its supplementary affidavit stated the following:
“The second respondent’s conclusion that there was no evidence from the
respondent to prove that the applicant had been called upon to provide
written motivation on the grounds that the motivations in her appeal form
were insufficient, is clearly false and indicates a failure to have examined the
relevant written documentation submitted adequately or at all. ”
It is clear from the documentary evidence that the employee was repeatedly called
upon to motivate her grounds of appeal. The Commissioner’s findings in this
regard are simply not justified.
48 Lastly, it is quite clear on the evidence that the employee did declare a dispute
with the CCMA. On this score, I must emphasise that it is not entirely clear to
me what the basis of the disciplinary charge comprises. If the charge amounts to
an attempt to discipline the employee for exercising any right under the Act, such
would clearly be incompetent. Since I have found that the Commissioner’s
findings on the first two limbs of this charge are not justifiable, it is not necessary
for me to say anything further on this issue. On this charge, the matter will have
to be considered afresh by a new Commissioner who will be placed in possession
of all the relevant information.
INSUBORDINATE CONDUCT
49 The fourth charge comprised an allegation of continuing argumentative and
insubordinate conduct towards managers of the Company. At the arbitration,
very little oral evidence was led in support of this charge. In this regard the
Commissioner found that
“... it is clear on the documentary evidence presented by the parties and on
the evidence given by the applicant whom I also found to be an honest and
reliable witness, that the charge relates to her communication with her
manager and in particular to her querying of the respondent’s failure to
make the annual review or increase of her salary as provided for in the terms
of her employment contract. ”
50 The Company’s principal contention relating to this charge is that the
Commissioner ignored the fact “ that there is much more to this charge than the
first respondent’s conduct in relation to her salary demand ”. The focus of the
attack was on a memorandum from the employee to her manager dated 29 May
1997. It is appropriate that I quote this memorandum in full:
“MEMORANDUM
TO: LYNN ROSLAN
cc: P Smith, J McClintock, P Twala
FROM: BONGI MASHABA
DATE; 29 MAY 1997
1. Apology
I want to apologise regarding the fact that:
. 2 of the 10 people I called in for a 1 dayjob on 16/5/97 were dismissed
for bad conduct last year
. I helped Melany the way I did.
2. I have the following problems in regard to your reaction to the above
and many others .
2.1 The way you seem to change facts regarding issues to suit whatever
purpose you want and the way yo take these as far as you do. Your
complaints about me are not based on the true facts of the events but
projected to suit what you want them to look like.
You have done this on a number of occasions beside these (see Addendum A),
to name a few. In my appraisals (to which I complained in writing): my
salary increase; in your disciplinary action against me (some proof of which
was submitted); and very recently (HRIS meeting & B. Glynn issue both I
complained in writing).
2.2 Your inconsistency regarding how I should perform my work. Your
rules change everything to suit the purpose of that instance,today they are
right, tomorrow they are wrong depending on what impression you want to
present about me or the wrong you want seen in my doing.
E.g. You say I should not have helped Melany with documentation but should
have told her about the procedure and come to discuss with you.
. I did that regarding informal recruitment documents from I. Twala
you took this to the disciplinary action that I can’t communicate policies and
procedure I came to you for help.
. I explained procedure to M. Skeen as you say you expect me to. you
took that to the disciplinary action alleging that I was ‘extremely difficult’.
. You put in my objectives and emphasised that I must help people
because “I am the only person in the department who is not being helpful”.
I helped Melany, now I shouldn’t have.
. You have emphasised numerously and very strongly to me that you
want action not stories. I acted, and now I should have passed this on to you
without doing anything.
. You have told me that we must be flexible with the policies &
procedures. This was also supported during the disciplinary hearing. (to
my point about informal recruitment and its implications, re: Michaels’s
temps) that policies & procedures are not cast in stone they are a guide and
an example given about compassionate leave, you further said this is not a
bureaucratic company.
2.3 When dealing with issues, mistakes and complains that concern me.
On a number of occasions I find you quick to lashout criticism, hardhanded
and very hast to judge, accuse and allege no matter how I try to tell/remind
you the real facts of what you said. Only if something reminds you or
someone else tells you something then you realise the actual facts and you
apologise for being angry, (e.g. J Nelson & see memo to you re: B Glynn).
2.4 I find you do not take into consideration the facts/circumstances
involved or even check your understanding of facts and procedures
surrounding an issue at hand, some of which are standard procedure, e.g.
some of the points you use in your allegation indicate your misunderstanding
of the actual facts ad procedures, maybe purposefully to project that I am
incapable, e.g:
. Any person who has been called in to do a job for the company must
be paid a salary for the work done. Legally if these people did a job for
GWSA it remains the company’s responsibility to pay them. If Steyn did
wrong he should be corrected but we may not withhold their salary because
of that otherwise the company may be liable for withholding pay.
. It is also GWSA policy and procedure that salaries must be paid
through the Salaries Department whether the employees were recruited
formally or informally and for any length of stay. The documents I gave
you are in the names of the casuals and not Steyn and therefore would not
you are in the names of the casuals and not Steyn and therefore would not
“get the money paid out to the employee (Steyn)”. The arrangement
between themselves they can sort it out so, and I can’t be involved my duty
is to ensure that people are paid in lieu of the work done and that the correct
documents (even though late) are done.
. There is no way that salaries Department can process and pay a salary
if there is no documentation and this applies for all employees, 1day
casuals, temps, permanent, etc. informally or formally recruited. This is
legal, procedural and necessary documentation and not an “instruction to
payroll to regard informal workers as employees”, they are temporary
employees whiles they work for us, that’s what we always do, when the
contract is finished they are no more, but payroll records must be justifiable
anytime later on.
2.5 The way you deal with problems that involves me seems very
subjective, attacking the symptoms and not the causes. e.g. Steyn did wrong
and I did wrong, but you don’t do anything about the cause of the fault.
There is still a chance that someone else can do what Steyn did and I can be
blamed for any of the points under 2.2 and you will always have a reason to
portray something wrong I have done.
What Steyn did and some other problems you blame on me indicate a
structural problem, with the communication strategies you use to
communicate the company policies and procedures, it does not reach
everyone. e.g. We are still receiving and submitting to Payroll after the 10th
(even 1 month late), despite the fact that I was disciplined to correct that
problem the departments don’t know about payroll10th problem so this
will keep occurring and I am the one who takes these to payroll dept and
therefore blamed for late submissions.
2.6 My suggestions: You don’t take cognisance or encourage them you
just listen or ignore them then later use them to allege that that was an action
agreed upon (Addendum A). Sometimes you only take them if someone else
suggests them and there are examples of this.
2.7 I find some of your reactions biased and giving selective treatment
e.g. in view of Addendum A, it does not seem a problem that people who were
involved in this issue did not follow procedure to inform me; Angela vs
Packing hall staff medical aid service; when someone in your own
department refuses point blank and rudely to adhere to procedure and/or to
use appropriate forms which you sanctioned should be used, you say you
use appropriate forms which you sanctioned should be used, you say you
are not going to be a referee and not going to involve yourself in acts of
“catching up” someone, but if other people don’t you want to know from me
why they are not using the correct forms.
3. My functional responsibility in the department
3.1 Yes I have the responsibility to advise correctly. Like everyone else I
am not 100% perfect and cannot make everyone happy all the time, but I
pride myself with the experience, knowledge and the good I have and still
contribute to the company. I know that my performance is not as bad as
you portray it. Everyday I meet complicated issues which I have to deal
with and advise on. E.g. last week Friday I gave you 4 typical situations of
this which I advised and dealt with to the best of my knowledge and ability.
You also have come to me for advice, help and explanation on issues of policy
and procedure and how to go about it.
3.2 Since I joined the company it has been my job to
explain/advise/inform on policy and procedure before anyone else did in this
department. I have corrected numerous incorrect applications of policies
and procedures within and outside the department for the benefit of the
company and I think I have been trying my best for the company. I have
never before had any such problems as you portray in this regard. If after
all this there is something that I am not doing right in this regard I think
management should not only judge but be objective in its approach and
attend to the cause of the problem to help me correct my wrongs and improve
from them.
4 If I do wrong I have to be reprimanded or subjected to all forms of
correctional measures but it should be truthful and based on real and actual
facts of the event. I expect respect, leadership, guidance, encouragement
and correction that will help me do my job best but so far most of the
feedback seems inconsistent and very destructive (see memo HRIS).
5 I don’t know why you are doing all this. Maybe there is another side
of it which I am missing or misunderstanding, but this is the way I see things
and what I feel subjected to. I feel grossly victimised and unfairly treated.
I am now beginning to believe that this is a procedural act aimed at removing
and replacing me from my position due to the reasons of “not being able to
perform my duties correctly, putting the company at risk, incapable to
communicate policies, wrong application of policy and procedures,
communicate policies, wrong application of policy and procedures,
interpersonal relationship, etc.”, most of which are not based on real facts
and there are more of these examples.
6 This has been going on since last year and every aspect of my life and
myself is affected. I can’t even begin to tell how much. My worklife is a
nightmare in waiting, expecting to be called in for another wrong.
I hope and pray that you take the content of this letter as an unbottling of all
the things that disturb and concern me in my daily worklife.
With all due respect
Bongi ”
51 This is an angry and aggressive memorandum. It is obviously symptomatic
of a breakdown in communication. It bears the hallmarks of an emotional
outpouring and a great deal of pentup frustration. For all its anger and
aggression, however, the real question is whether it crosses the threshold of
legitimate dissatisfaction to insubordination. The employee states in her
answering affidavit that she wrote the memorandum “ to express her feelings and
frustrations” but did not intend to show her manager any disrespect. She states
further that she believed “ that as an employee of the company I am entitled to
voice whatever frustration I am experiencing in the workplace ”. Mr
Maserumule, who appeared on behalf of the employee argued that the
memorandum must be understood in its context. Part of that context was a
memorandum from Lynn Roslan to the employee a week before. In that
memorandum, which formed part of the documentation placed before the
Commissioner, Ms Roslan raised “ two recent issues which have given me
concern”. The details of these issues need not be considered for present
purposes. It suffices to say that Ms Roslan mildly rebukes the employee for non
compliance with certain procedures.
52 In the Carephone case (supra) the Labour Appeal Court was at pains to
emphasise that the distinction between review and appeal must be maintained.
The crucial question for my consideration is whether or not the Commissioner’s
conclusions relating to this charge are justifiable. Whether or not I hold a
different opinion concerning the memorandum of 29 May 1997 is beside the point.
Opinions on issues of this sort may legitimately differ. Where, as in a case such
as the present, the conclusions reached by the Commissioner are to some extent
dependent on findings of credibility and matters of judgment and evaluation; the
scope for interference on review is more limited than in the case of findings based
on objectively ascertainable facts. Again, however, I do not suggest that in cases
involving evaluation and judgment the Court is in any way relieved from the
obligation of assessing the justifiabillity of the decision.
53 At common law while it is clear that an official vested with a statutory
discretion is obliged to take into account all relevant considerations and to ignore
irrelevant considerations it is frequently no easy task to determine what is relevant
or irrelevant as the case may be. Milne AJ in Estate Geekie v Union
Government & Ano 1948 (2) SA 494 (N) postulated the following test at 511:
“Allowing that is some consideration were taken into account which was so
manifestly alien and irrelevant that no reasonable man could regard it as
relevant, that might vitiate the decision arrived at as a result of it (depending
upon the degree to which the intruding factor influenced the decision). .... ”
54 The position in English law has been summarised thus:
“When the courts review a decision they are careful not readily to interfere
with the balancing of considerations which are relevant to the power that is
exercised by an authority. The balancing and weighing of relevant
considerations is primarily a matter for the public authority and not for the
courts. Courts have, however, been willing to strike down as unreasonable
decisions where manifestly excessive or manifestly inadequate weight has
been accorded to a relevant consideration. ” (De Smith, Woolf & Jowell
Judicial Review of Administrative Action (5th ed) at 557 para 13015
55 I am alive to the fact that the constitutional standard of justifiability introduces
a form of substantive review. My reference to the common law authorities is
merely illustrative of the difficulties of interfering on review in matters involving
judgment and evaluation. While recognising that there is scope for differing
views, I am not persuaded that the Commissioner’s conclusions are not justifiable
in the specialised sense in which that term is used in the Carephone case (supra) .
In so finding, I do not wish to be understood as lending any endorsement
whatsoever for the tone adopted by the employee in the memorandum of 29 May
1997. My conclusion goes no further than a refusal to interfere with the
Commissioner’s conclusions in this regard.
FACILITATING A BREACH OF PROCEDURE
56 In relation to the charge of compounding the transgression of an employee by
facilitating a breach of procedures in relation to the hiring of informal workers, the
Commissioner stated the following:
“... the respondent has failed to discharge its onus and Mr Msiza’s evidence
could not assist the respondent in any way. His evidence as already
discussed relates to unsubstantiated complaints by unknown third parties
and to his own dissatisfactions about the fact that due to the respondent’s
policies the applicant was not able to give effect to his demand for her uncle
to be hired to come and work with him. He did not even raise his
dissatisfaction with senior management to see if they could not relax the
policy or make an exception. He could not dispute the applicant’s version of
the facts relating to the charge. Further, in my view the facilitation of the
said breach of the procedures originated from the departments who hired
their employees when the Human Resources should be doing so in terms of
the policy. Furthermore, Lynn Roslan whose signature was required to
authorise payment process on the forms also materially facilitated the said
breach. The respondent’s move to single out the applicant for discipline was
not only unfair, but created an inconsistency in the application of the rule or
standard. There is not even evidence given, in justification of such
differentiation in the treatment of its employees, in this regard. ”
57 The Company contends that the Commissioner erred in finding that Mr
Msiza’s evidence given at the arbitration hearing related to this charge. While
this may well be the case, nothing turns on this error. It is in no way causally
connected to the Commissioner’s conclusions.
58 The evidence at the arbitration established that the Human Resources
Department was in the process of educating and advising departmental heads on
the practice of hiring informal workers to do piecework in their various
departments. This hiring process by departmental heads could have led to
serious and complex legal consequences for the Company. Everybody in the
department was committed to terminating this unusual hiring procedure by
departmental heads. However, in April 1997 the employee allegedly advised
departmental heads and salaried staff to disregard policy and procedure.
59 It is conceded by Mr Antonie, who appeared on behalf of the Company,
that the employee testified that her superior, Lynn Roslan authorised and endorsed
the payment process in violation of the policy and procedure. The essence of the
argument advanced by Mr Antonie is that this conclusion is cast in doubt by a
memorandum of 22 May 1997 from Lynn Roslan to the employee where this issue
is discussed.
60 The irregularity relied on by the Company in relation to the finding on this
charge turns on a discrepancy between the oral evidence presented to the
Commissioner and the contents of the documentary evidence. Thus it is
contended that the Commissioner failed to take into account the documentary
evidence.
61 In my view there is no merit in this contention. The Commissioner is
obviously required to have regard to all the evidence, both oral and documentary.
Where, however, there is direct oral evidence which is not inherently improbable
and where the discrepancies in the documentary evidence have not been put to the
witness, a Commissioner cannot be criticised for basing his award on the oral
evidence. That is precisely what has occurred in the present case. I accordingly
find that the attack on this finding is without merit.
REMEDY
62 Although the Company launched an attack on the Commissioner’s findings
concerning the procedural unfairness of the disciplinary process, both Mr Antonie
and Mr Maserumule agreed that in the event of me holding that the arbitration
award is reviewable on one or more grounds, it was not necessary for me to make
a finding in relation to the Commissioner’s conclusions concerning procedural
fairness. It remains, therefore, to consider the appropriate remedy. In terms of
section 145(4) of the Act, where an arbitration award is set aside, the Labour
Court may determine the dispute in the manner it considers appropriate or make
any order it considers appropriate about the procedures to be followed to
determine the dispute. In the present case, I have found that the Commissioner’s
conclusions on one aspect are not justifiable. The only question that remains
unresolved, therefore, is whether the employee was rightly found guilty of
creating obstacles to the proper running of the disciplinary process in the manner
particularised. That is an issue which ought properly to be referred back to the
CCMA for determination before a different Commissioner. In my view it would
be inappropriate for this Court to determine that dispute by reason of the fact that I
am not satisfied that I am in possession of sufficient facts and evidence to do so.
63 There remains the question of costs. The applicant for review has only been
partially successful. The papers in this review are voluminous. While a
substantial amount of the material would have had to be placed before the Court
even if the attack had been confined to the Commissioner’s findings concerning
obstruction of the disciplinary process, in my view it would be inequitable for the
Company to claim the costs of the entire proceedings. In my view, an
appropriate apportionment of costs would entitle the Company to recover 40% of
the costs.
64 I accordingly make the following order:
64.1 That part of the second respondent’s arbitration award delivered on 19
October 1998 under Case No. GA10899 (“the arbitration award”) dealing with the
allegations against the first respondent on the charge of creating obstacles to the
proper running of the disciplinary process is reviewed and set aside.
64.2 The matter is referred back to the Commission for Conciliation, Mediation
and Arbitration for a different Commissioner to determine the dispute between the
parties concerning the charge of creating obstacles to the proper running of the
disciplinary process.
64.3 The application to have the arbitration award made an order of Court is
postponed sine die .
64.4 The applicant is entitled to 40% of the costs of this application.
G J MARCUS
Acting Judge of the Labour Court
Date of Hearing: 10 June 1999
Date of Judgment: 21 JUNE 1999
For the applicant: Advocate M Antonie
Instructed by: Webber Wentzel Bowens
For the second respondent: Mr P Maserumule of
Maserumule and Partners