IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN JOHANNESBURG)
REPORTABLE
Case No: JR 1641/02
JOHANNESBURG the 3rd day of February 2005
Before Judge E. Revelas
In the matter between:
TRADE AND INVESTMENT SOUTH AFRICA
(ASSOCIATION INCORPORATED UNDER SECTION 21) 1 ST APPLICANT
DEPARTMENT OF TRADE AND INDUSTRY 2 ND
APPLICANT
AND
THE GENERAL PUBLIC SECTORAL
BARGAINING COUNCIL 1 st RESPONDENT
LUFONO RAMABULANA N.O.
SOUTH AFRICAN LABOUR MARKET 2 nd
RESPONDENT
ALLIED WORKERS UNION 3 rd RESPONDENT
NANDIPA DINEO SIWISA 4 th RESPONDENT
JUDGMENT
REVELAS,J:
1
[1] This is an application for review in terms of section 145 of the
Labour Relations Act 66 of 1995 as amended (“the Act”). The applicant
seeks to set aside an award made by the second respondent, wherein he
found that the recall of the fourth respondent by the first applicant from
Paris to South Africa was an unfair disciplinary action falling short of
dismissal.
[2] The first applicant is a division of the second applicant, and it was
established by the latter in 1996 for the purpose of attracting foreign
investment. The fourth respondent had been employed by the second
respondent as an investment officer during 2000, when her application for
a voluntary posting overseas was approved. The posting was for a period
of three years which period was subject to variation. She retained the
position she had in South Africa and was remunerated in accordance
therewith. While serving in Paris, France in an embassy, the fourth
respondent was entitled to certain foreign service benefits in the form of
allowances. She reported to Ms Philisiwe Buthelezi , and the South
African Ambassador in France.
[3] On 2 October 2001, the fourth respondent was suspended on full
pay until 30 October 2001, pending the outcome of an investigation into
an altercation between the fourth respondent and her manager Ms
Buthelezi, and the subsequent breakdown in their working relationship
and the fourth respondent’s working relationship with the ambassador.
The applicants appointed Ms Juliet Maniza (a senior human resources
manager) and Mr Alan Kennedy (an employee relations manager) to
conduct the investigation. They arrived in Paris on or about 5 October
2001, and held discussions with the staff members at the Paris office
which included Ms Buthelezi, the fourth respondent and the ambassador.
Two meetings (the first one over breakfast) were held with the fourth
respondent. The second meeting lasted five hours. A report was then
completed.
respondent. The second meeting lasted five hours. A report was then
completed.
[4] In the report compiled on the investigation, it was recommended
that the fourth respondent’s suspension be uplifted and she be recalled to
South Africa. On 11 October, the recommendation was implemented by
way of written notification to the fourth respondent, who then referred a
dispute about “unfair action in respect of provision of
2
benefits/suspension/disciplinary action short of dismissal”. Conciliation
failed and the dispute was arbitrated.
Ms Buthelezi and Ms Maniza testified at the arbitration hearing. The
ambassador also deposed to an affidavit on the question of the breakdown
between herself and the fourth respondent. No reliance was placed on this
affidavit by the arbitrator. Ms Steyn testified about the applicants’
policies and the circumstances under which an employee in a foreign
posting could be called back to South Africa. The fourth respondent
testified on her own behalf.
[5] It was the fourth respondent’s case that no justifiable circumstances
existed for the cancellation of the fourth respondent’s foreign posting
contract, other than the unhealthy working relationship between Ms
Buthelezi and herself , which the former blamed the fourth respondent
for. (Ms Buthelezi also issued the notice of suspension).
[6] The fourth respondent contended that her recalling prejudiced her,
in that the financial advantage she enjoyed as a result of her position in
Paris, had been lost. (The arbitrator held that this financial advantage was
not a benefit as contemplated by Schedule 7, item 2(1)(b) of the Act).
The arbitrator further held that it was unfair that Mrs Buthelezi who was
also a party to the fight or altercation about keys to a vehicle (which fight
allegedly included physical assault), was given the authority to suspend
the fourth respondent.
[7] No disciplinary hearing was held in respect of this incident, but it
was common cause that the relationship between the fourth respondent
and her manager (Ms Buthelezi) deteriorated to such an extent that they
were no longer on speaking terms, a situation which one could well
imagine to be only detrimental to the working situation at the Embassy in
Paris.
Clause 7 of the Council Resolution was applicable to a situation such as
the one which gave rise to the arbitration hearing. (Clause 7.2 provides
the one which gave rise to the arbitration hearing. (Clause 7.2 provides
that the employer (in this case the, the applicant) may suspend an
employee on full pay (as was the case in this matter) as a precautionary
measure). Clause 7.2 (c) provides that within a month after a suspension
has been imposed, a disciplinary hearing must be held. The fourth
respondent emphasized that clause 7, which distinguished between
management and the employer does not authorise management (thus Ms
Buthelezi) to suspend employees.
[8] Resolution 2 (a collective agreement) incorporates Schedule 8 of
the Act and ensures employees of a fair hearing, timeous notification of
charges of misconduct, written reasons for decisions and the right to
appeal against those decisions.
3
[9] Clause 7.3 prescribes several minimum procedural requirements
for a disciplinary hearing, which the fourth respondent contends, was not
complied with by the applicant.
[10] The arbitrator held the view that the recall was not in accordance
with due process or in line with the provisions of processes within the
second respondent, in that an independent person (other than Ms
Buthelezi) should have dealt with the matter. According to the arbitrator,
the fourth respondent was financially disadvantaged by the recall because
she lost the financial advantages (benefits) that she enjoyed in Paris. He
also held that the unhealthy working relationship was no justifiable
reason to cancel her contract.
[11] Apart from reinstating the fourth respondent she was also awarded
compensation equal to eight months’ salary (her South Africa salary).
[12] The first justifiable criticism levelled against the arbitrator was that
he misconstrued the nature of the dispute he had to arbitrate. The dispute
referred to conciliation and arbitration was not about the fourth
respondent’s suspension, but her recall. Her suspension was uplifted only
days after it had been imposed. In terms of clause 7.2 of the Council’s
Resolution it was permissible for her to be suspended on full pay. Ms
Buthelezi was also clearly authorised, to suspend the third respondent as
she reported to her.
[13] Since two independent parties came to Paris to investigate the
situation and recommend the steps to be taken or not to be taken, Ms
Buthelezi’s actions and motives became completely irrelevant. In the
circumstances it was unnecessary for an outsider to be called in to
suspend the fourth respondent. The finding of the arbitrator that the
suspension was “unacceptable”, was therefore not supported by the
evidence.
The arbitrators finding that the recall was procedurally unfair and
tantamount to disciplinary action short of dismissal was also wrong. This
tantamount to disciplinary action short of dismissal was also wrong. This
argument was premised on the failure on the part of the applicant to
afford the fourth respondent with an opportunity to test (e.g. cross
examine) Ms Buthelezi about the incident before she was “punished”
with a recall.
At this point it is necessary to remember that the applicant called a
witness (Ms Steyn) to explain the reasons for and circumstances in which
the applicant may recall an employee. The applicant was entitled to recall
employees under several circumstances, even as a disciplinary measure.
In doing so it exercised its managerial prerogative. Provided there was
consultation, such a step would be in order.
[14] The events preceding the recall should first be looked at. There was
4
the introductory meeting which took place over breakfast where the
fourth respondent was told of the investigation, its purpose and that she
had the right to be represented. Later she was interviewed for five hours
during which she allegedly expressed her misgivings about remaining in
Paris in the prevailing circumstances, but later said she wanted to remain.
This was disputed in argument. However, it was common cause before
the arbitrator that the relationship between the fourth respondent and Mrs
Buthelezi had broken down and there was also evidence before the
arbitrator that the fourth respondent had a poor relationship with the
ambassador as well. After the interview was conducted, there were three
options open to the applicant: A recall of the third respondent, a
disciplinary enquiry or an incapacity hearing. The recall was decided
upon as an operational measure, which in my opinion fell within the
applicant’s managerial prerogative. There was no need for a hearing if the
applicant did not wish to dismiss or discipline the fourth respondent. The
same applies to a poor performance enquiry. Relationships in Paris broke
down. The situation had to be dealt with by recalling someone.
[15] The fourth respondent and arbitrator seem to suggest that if Mrs
Buthelezi was crossexamined, her blameworthiness would have been
established and she should have been recalled. In this regard, it must be
pointed at that the applicant’s investigators were not looking for fault.
They were faced with a difficult situation and recalled the applicant in
order to solve the problem. It was the applicant’s prerogative to decide
not to recall Ms Buthelezi who was, after all her manager. (Her position
was actually Regional Manager Europe). Due to similar considerations
the applicant probably did not insist on the recall of the South African
Ambassador to France with whom the relationship with the fourth
respondent had also broken down.
respondent had also broken down.
[16] The applicant, was plainly entitled to recall the fourth respondent,
provided she was consulted with. She had an opportunity to contribute to
the enquiry in the form of two interviews (one being five hours long). She
was interviewed by two persons who were not of the Paris office. If she
was disciplined, she might even have been dismissed.
[17] Ms Maniza (one of the investigators) gave evidence to the
arbitration that she followed a fair procedure in conducting the
investigation. In effect, the arbitrator rejected her evidence by finding that
the procedure was unfair. The arbitrator had done so in circumstances
where the fourth respondent, having referred an unfair labour practice
dispute, bore an onus to be discharged in this regard. There was no
indication, and it was not found, that the interview was a sham and that
the fourth respondent’s representations were not considered. The
5
arbitrator misdirected himself by placing the onus on the applicant to
disprove that the recall was procedurally unfair.
[18] Insofar as the substantive fairness of the recall is concerned, it has
already been demonstrated that the applicant was entitled to recall the
fourth respondent, provided it consulted with her, which it did. Other
factors which also played a part was her limited knowledge of French and
exposure to French business conduct and poor leadership skills. These
were not the reasons for her recall per se , but factors that played a role in
assessing why she, rather than Ms Buthelezi should be recalled.
[19] One again there was no evidence to support a view that the
findings of the investigations were false or driven by an ulterior motive.
Only if the arbitrator had made such findings was it entitled to say the
recall was unfair. He made no such findings, because on the evidence he
was unable to do so. His findings are therefore disconnected to the facts.
[20] In the circumstances the review succeeds with costs as set out in
the order already given herein.
_____________________
E.REVELAS
On behalf of the Applicant:
Adv Mark Wesley
Instructed by Routledge Modise Attorneys
Onbehalf of the third Respondent:
Ms R. Anderson of Anderson & Kloppers Attorneys
6