THE LABOUR COURT OF SOUTH AFRICA REPORTABLE
HELD AT JOHANNESBURG
CASE NO: J1946/2000
In the matter between:
NATIONWIDE AIRLINES (PTY) LTD Applicant
and
COMMISSIONER AR MUDAU First
Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second
Respondent
ALPASA obo M WRIGHLEY Third
Respondent
MICHAEL WRIGHLEY Fourth
Respondent
JUDGMENT
MASERUMULE AJ:
1. The Applicant seeks an order in terms of section 145 of the
Labour Relations Act, 66 of 1995, (“the Act”), reviewing and
setting aside an arbitration award made by the first respondent,
in terms of which he found the dismissal of the fourth
respondent to have been procedurally unfair and awarded him
compensation in the amount of R120 000.00.
2. The facts that were placed before the first respondent are as
follows:
2.1 The fourth respondent was employed by the applicant as a flight
engineer in 1997;
2.2 The fourth respondent was, on at least two occasions, warned
that his performance was not satisfactory;
2.3 From 2326 May 1999, fourth respondent was sent to the United
Kingdom for a simulator instruction. A simulator is a device
which resembles an aircraft cockpit and can be programmed to
replicate various flying conditions and manoeuvres. The pilots
and flight engineer team up as the flight deck crew and are
taken through a number of simulated flying emergency
situations to test their ability to react swiftly and in a correct
fashion to such situations, given each crew member’s tasks and
responsibilities in the cockpit. A simulator instructor, who
remains present on the flight deck during the session, makes
written assessments of the individual crew member’s
performance;
2.4 Following his return from the simulator’s session and on 7 June
1999, the fourth respondent was told to attend a meeting on 8
June 1999. He was not told what the purpose of the meeting
was nor was he informed that he could bring a representative.
2.5 The meeting on 8 June 199 was attended by applicant’s Chief
Pilot, Captain Willemse, Captain Isherwood, the B727 Fleet
Captain and L Bradley, the Human Resources Manager;
2.6 The fourth respondent was informed that according to a report
prepared by the simulator instructor, he had performed poorly
during the simulator session held in May 1999 and he was
asked to explain his shortcomings as recorded in the report.
The fourth respondent had not previously been shown or
provided with a copy of the report;
2.7 At the conclusion of the meeting, the fourth respondent was told
that the management representatives would deliberate on the
matter;
2.8 On 10 June 1999, the fourth respondent was handed a letter in
which he was advised that his services with the applicant were
being terminated with immediate effect due to his poor work
performance;
2.9 Around 25 May 1999, the fourth respondent was told that there
was a clerical position available in flight operations and he was
asked to try it out for a few days. He did so but when he was
told that the position paid R4500.00 per month, being almost a
third of the R12 500.00 that he previously earned as a flight
engineer, he turned down the offer. The latter is disputed by the
applicant.
3. Following the referral of first respondent’s alleged unfair
dismissal dispute to the CCMA, and at the arbitration hearing
held on 11 May 2000, the applicant applied for a postponement
to enable it to call Mr. Bradley, its exHuman Resources
Manager, who was not in attendance at the hearing. Bradley’s
evidence would have been to refute fourth respondent’s
allegation that he had met with the former and was told that his
salary would be R4500.00. The first respondent turned down
the application for a postponement and as a result, Bradley did
not testify.
4. The first respondent does not in his award deal with the
application for a postponement and the reasons for refusing to
grant the application. There is no reference in the record of the
arbitration hearing to the application for a postponement either.
The record is also incomplete in that there is no indication in the
court file that the CCMA filed a Rule 7A notice and the
documents used at the arbitration hearing. Only the transcribed
record of the evidence is in the court file. I am therefore, unable
to determine whether the first respondent filed an explanatory
affidavit in which he addressed the issue about his refusal to
postpone the arbitration hearing. This is an extremely
unsatisfactory state of affairs as the court depends on the
record to make an appropriate evaluation of decisions by CCMA
commissioners.
5. The applicant attacks the award on a number of grounds and I
deal with each of these grounds below.
Refusal to grant a postponement
6. The applicant states in its founding affidavit that a
postponement was necessary to hear the evidence of Bradley
regarding the clerical position offered to the fourth respondent
and whether or not the fourth respondent had given reasons for
allegedly rejecting the position. This evidence would have been
relevant in determining whether or not the fourth applicant had
absconded or was dismissed.
7. According to the affidavits, the first respondent refused a
postponement because the arbitration hearing would be
delayed by a couple of months. The applicant claims that it
could not have anticipated that Bradley would be required as a
witness as it could not have known in advance that the fourth
respondent would allege that he had met with Bradley and
discussed the clerical position with him.
8. Notwithstanding the deficiencies in the record, it appears to me
that this first ground of review must fail. A letter attached to the
third and fourth respondents’ answering affidavit specifically
refers to a meeting between Bradley and the fourth respondent
that took place on 8 July 1999 and at which the fourth
respondent gave reasons why the clerical position was
unacceptable to him. The applicant was thus aware all along of
what fourth respondent’s version was with regard to the alleged
meeting and ought to have consulted with Bradley earlier and
arrange for his availability on the day of the arbitration hearing.
The first respondent cannot be faulted for refusing to grant the
applicant a postponement and this ground of review must
accordingly fail.
9. The alternative position was offered to the fourth respondent
more than two weeks after he was dismissed and not as an
alternative to his dismissal. The offer for the position was not
coupled with a withdrawal of fourth respondent’s dismissal.
Refusing to take up this position would not change the fact that
he had been dismissed from his position as a flight engineer
and Bradley’s evidence would not in any way have changed this
outcome. In any event, given fourth respondent’s reason for
rejecting the clerical position, and assuming in favour of the
applicant for this purpose that the job was offered as an
alternative to dismissal, such rejection would have been entirely
reasonable and would not have amounted to a “fresh” dismissal.
Bradley’s evidence, therefore, would not have changed this
outcome. In the result, the first respondent correctly refused to
grant the applicant a postponement and a review of his award
on this ground must fail.
Fourth respondent’s alleged desertion
10. The second ground for review is that the fourth respondent had
absconded and was not dismissed. I have already indicated, in
dealing with first respondent’s refusal to postpone the arbitration
proceedings, that the applicant’s argument that the fourth
respondent had absconded and was not dismissed cannot be
sustained.
11. The fourth respondent was given a letter in which it was
unequivocally stated that his services were being terminated for
poor work performance. The offer to the fourth respondent to
work as a clerk in flight operations was made some weeks after
his dismissal and there is no evidence that it was coupled with
an offer of reinstatement, albeit to a different position from the
one which the fourth respondent occupied at the time of his
dismissal.
12. In addition, one would have expected the applicant to take issue
with fourth respondent’s referral of his dismissal dispute to the
CCMA on the basis that it was premature. This is because the
fourth respondent referred the dispute to the CCMA before he
took up and later rejected the offer to try the clerical position. No
such challenge was mounted.
13. First respondent’s conclusion that the fourth respondent was
indeed dismissed, cannot be faulted. The second ground for
review must accordingly fail as well.
Fourth respondent’s dismissal was not procedurally unfair
14. The third ground of review relates to first respondent’s
conclusion that the fourth respondent’s dismissal was
procedurally unfair. Applicant’s attack on this conclusion can be
summarized as follows: the fourth respondent was called to a
meeting on 8 June 1999 and was told that he had performed
poorly on the simulator. He was given an opportunity during this
meeting to make representations about his performance and
was thereafter dismissed. The applicant was thus given a fair
hearing and his dismissal was thus procedurally fair.
15. The submission is startling, to say the least.
16. The applicant knew, when it summoned the fourth respondent
to the meeting, that the intention was to discuss his
performance on the simulator and the intention to terminate his
services in the event that his explanation were not to be
accepted. Yet the applicant does not convey this information to
the fourth respondent when it informed him of the meting on 7
June 1999. The applicant was literally ambushed;
17. Secondly, the applicant was in possession of the report
prepared by the simulator instructor before 8 June 1999. The
fourth respondent was not given a copy of the report before the
meeting to enable him to prepare to deal with its contents. He
was shown the report in the meeting and was there and then
asked to respond to the content thereof, which was critical of his
performance. No reason has been given why he was not given
a copy of the report beforehand to enable him to prepare his
response to its criticism of his performance on the simulator.
18. Thirdly, given that the applicant knew what the purpose of the
meeting was, it was obliged but failed to warn the fourth
respondent that he would be expected to give reasons at that
meeting why he should not be dismissed. In fact, even at the
meeting itself, the fourth respondent was not told that the
deliberations of the management’s representatives were about
his possible dismissal. He only learnt that this was the case
when he received his letter of termination.
19. Fourthly, the fourth respondent was entitled to be assisted by
his union representative. He could not be because he 8was not
told what the purpose of the meeting was. The applicant has not
suggested that it was unaware of fourth respondent’s union
membership. Even if that were the case, he would still have
been entitled to assistance by a fellow employee. No reason
has been advanced why he was not accorded this basic right.
20. In JDG Trading (Pty) Limited t/a Price and Pride v Brundson
(2000) 21 ILJ 501 (LAC), Zondo AJP,(as he then was) writing
for the majority of the court, observed as follows:
“ [61] Some argument was advanced by the appellant’s counsel that
the respondent was employed as a senior manager and that he
knew what his shortcomings were. That an employee is a
senior manager does not, in my view, give the employer licence
to dispense with the observance of the audi alteram partem
rule. Such an employee is also entitled to the observance of the
audi alteram partem rule. What may be relaxed in the case of a
senior manger may be the form which the observance of the
rule may take….
[62] The opportunity which is given to a senior employee must still
meet at least two basic requirements of the audi alteram partem
rule, namely, he must be given notice of the contemplated
action and a proper opportunity to be heard. The reference to
‘notice of the contemplated action’ necessarily implies that the
action has not been decided upon finally as yet but it is one
which may or may not be taken depending on the
representations which the affected person may give. In these
case the opportunity to be heard which the appellant purported
to give to the respondent did not meet any of these two basic
requirements…”
21. The above quotation may well have been written for this case.
Although the judgment dealt with an appeal from the Industrial
Court, and therefore, the repealed 1956 Labour Relations Act,
the principles stated therein are of equal application to a
dismissal for incapacity under the 1995 LRA. In fact, in the light
of the constitutional right to fair labour practices and the right
not to be unfairly dismissed as prescribed in the Act, the
principles set out by the Labour Appeal Court apply with even
more force.
22. The fourth respondent was not informed of the action
contemplated against him prior to the meeting of 8 June or even
at that meeting. He was not given an opportunity to influence
the decision to dismiss him. There was, in casu, a complete
failure to observe the audi alteram partem rule.
23. The fact that the fourth respondent was a flight engineer of a
passenger aircraft does not mean that he was not entitled to a
proper observance of the audi alteram partem rule . He was
grounded before the meeting of 8 June 1999 and there is
therefore, no reason why he was not informed of the purpose of
the meeting and given an opportunity to make representations
as to why he should not be dismissed.
24. The applicant attacks the first respondent’s conclusions on the
basis that he confused issues related to substantive fairness
with those related to procedural fairness. In his award, first
respondent concluded that:
24.1 The fourth respondent was a good in theory but not a good
performer;
24.2 The fourth respondent dismissed procedurally fairly;
24.3 The fourth respondent should have been offered training and
given a reasonable chance to improve and the applicant failed
to do so;
24.4 The fourth respondent was not given a chance to present his
side of the matter;
24.5 The applicant may have had a good reason to dismiss,
however, things did (not) go well procedurally;
24.6 The fourth respondent was dismissed unfairly with regards to
procedure.
25. Undoubtedly, reference to failure to provide the fourth
respondent with training and an opportunity to improve suggests
that the first respondent was critical of the substantive fairness
of the dismissal. It is not entirely clear whether the reference to
the fourth respondent not being given a chance to present his
side of the story (or the matter as the first respondent would
have it), refers to his poor performance or why he should not be
dismissed.
26. These deficiencies notwithstanding, I am not persuaded that
they are of such a nature as to render the award reviewable.
The summary of the findings as outlined and the conclusion
arrived at by the first respondent indicates that he considered
procedural fairness to have been applicant’s shortcoming in
respect of fourth respondent’s dismissal. His reference to the
fourth respondent being good in theory but not a good
performer and that the applicant may have had a good reason
to dismiss the fourth respondent clearly shows that he
considered the dismissal to have been substantively fair. His
statements that things did not go well procedurally and that the
applicant was dismissed unfairly with regards to procedure puts
the issue beyond doubt as to what his conclusion is with regard
to the reason for unfairness.
27. Does the fact that first respondent’s brief reasons seem to
confuse substantive fairness with procedural fairness taint the
award to an extent where it should be set aside? I do not
believe so. His conclusion is entirely justifiable, having regard to
the evidentiary material before him, see Federated Timbers (Pty
Ltd v Lallie NO & Others (1999) 20 ILJ 348 (LC).
28. In Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others (2001)
22 ILJ 1603 (LAC) at 1636HI, Zondo JP stated as follows:
[101] In my view it is within the contemplation of the dispute resolution system
prescribed by the Act that there will be arbitration awards which are
unsatisfactory in many respects but nevertheless must be allowed to stand
because they are not so unsatisfactory as to fall foul of the applicable
grounds of review. Without such contemplation, the Act’s objective of the
expeditious resolution of disputes would have no hope of being achieved.
In my view the first respondent’s award cannot be said to be unjustifiable
when regard is had to all the circumstances this case and the material that
was before him.”
29. The above remarks are of equal application to the award made
by the first respondent.
30. The applicant has not suggested that the compensation
awarded to the fourth respondent is not justified.
31. The third and fourth respondents had brought an application to
make the arbitration award an order of court in terms of section
158(1)(c) of the Act.
32. In the result, the application for the review of first respondent’s
award is dismissed and the award issued by the first respondent
is made an order of court. The applicant is ordered to pay third
and fourth respondents’ costs in respect of both applications.
__________________________
MASERUMULE AJ
On behalf of the Applicant: Adv A Landman, instructed by
Golding Venniker Attorneys
On behalf of Third and Fourth Respondents: Adv NH Maenetje,
instructed by Cheadle Thompson & Haysom Inc.
Date of hearing: 8 August 2002
Date of judgment: 4 Novemebr 2002.