Sneller Verbatim/lks
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
2005- 06-08 CASE NO: JR2123/03
In the matter between
BERCO EXPRESS Applicant
and
SATAWU obo D MOTOPI First Respondent
NATIONAL BARGAINING COUNCIL FOR
THE ROAD FREIGHT INDUSTRY Second Respondent
MAPALO TSATSIMPE N.O.Third Respondent
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J U D G M E N T
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REVELAS, J :
[1]This is an application in terms of section 145 of the Labour
Relations Act 66 of 1995, as amended ("the Act"). The
applicant seeks to review an award in terms of which Ms D
Motopi, represented by SATAWU in this matter, was
dismissed and the arbitrator held her dismissal to be unfair.
The arbitrator
granted her compensation in addition to retrospective
reinstatement.
There are several grounds of review which will become apparent
in the reasoning of this judgment.
[2]The facts which gave rise to an unfair dismissal dispute being
referred to the National Bargaining Council for the Road Freight
Industry were the following: Ms Motopi ("Motopi") was transferred
to the applicant's POD section on 3 March 2003. She had
previously worked in its zoning department as a supervisor. The
procedures she had to follow in both departments were essentially
the same. The transfer to the new department was subject to a
three months' probation period. According to the applicant,
Motopi was transferred to the POD department because she could
not cope in the zoning department. At the time of her dismissal
for poor performance, she had been in the employ of the applicant
for a period of 18 months. There were certain specific procedures
that she was required to follow, but failed to do. Despite the fact
that she was expected to know what exactly she had to do. That
was the case for the applicant.
[3]Furthermore, it stated that on 13 March 2003, Motopi was
counselled with a view to improve her performance. She was also
given warnings.
On 8 April 2003, she was charged with misconduct on two counts
and she was notified to attend a disciplinary hearing of which she
refused to acknowledge receipt of the notice but did attend the
hearing. The chairperson who presided over the hearing or
enquiry was from a different branch. It is common cause that
there was also a meeting on 18 March 2003, and this meeting was
also attended by Motopi's supervisor, the accounts manager. The
national human resources manager then put to her certain aspects
of her performance and advised that an investigation would be
conducted pertaining to her performance. According to Motopi,
this was the first time any concern regarding her performance was
raised. She was not represented at the meeting, she stated that
the purpose of the meeting was not to counsel her, as the human
resources manager made it very clear to her that the purpose of
the meeting was to investigate poor performance on her part. The
minutes of the meeting were typed, which Motopi also refused to
sign. She regarded it as an unfair meeting.
[4]The applicant maintained that the chairperson of the
disciplinary enquiry was neutral, whereas in fact Motopi stated
that she was biased. Motopi's dismissal was also upheld in an
appeal procedure. The applicant led evidence that Motopi's
incompetence had resulted in financial loss. Six warnings were
issued to her in the 18th month that she had been employed by the
applicant. There were three warnings still current on her file, the
latter being a final written warning. The written warnings which
had been given to Motopi were in respect of absenteeism.
Regarding the first warning, she stated that she could not get hold
of her supervisor, whose permission she needed prior to her
absenteeism. She did not challenge that warning but she did
absenteeism. She did not challenge that warning but she did
challenge her final written warning regarding her performance,
because she never attended an enquiry into her performance prior
to the "so-called final written warning".
[5]She further stated that the procedure followed in her case was
unfair. She also emphasised that when she returned from a
month's leave in February 2003, she was advised of her transfer
which was also made subject to a three month probation period.
She told the arbitrator that her non-acceptance of the transfer
would have meant the end of her employment with the applicant.
In her new position she was not offered any training despite the
fact that in the new section she was required to use a computer,
whereas in the zoning section her tasks were normally performed
manually.
[6]She conceded that she did not complete much of her work but
attributed that to the infrequent access to the computer which was
shared amongst several office workers and the fact that the
documentation needed to complete her task often arrived on her
desk belatedly. The applicant's witnesses pointed out that she
could have easily completed her computer work in 30 minutes and
30 minutes per day for working on the computer was all that was
required. Furthermore, she could have arranged her own access
to the computer as she was the supervisor and not a subordinate
in her new section. It was further stressed, that she showed no
appreciation of the seriousness of her situation. After the hearing,
she remained absent for a period without any explanation.
[7]The arbitrator made certain findings which led me to believe
that she was almost enthusiastic in her endeavours to assist the
employee in question and there were several examples in the
award to which I can refer in this regard. First of all, I will return to
the issue of compensation. Section 193 of the Act is quite clear.
When a dismissal is found to be substantively unfair, the correct
remedy is reinstatement unless there are factors which indicate
that it is not practical to reinstate. This was not such a matter.
The arbitrator made such a finding of procedural unfairness but
reinstated Motopi.
Section 193 provides for compensation as an alternative to
reinstatement. Compensation may not be awarded in addition to
reinstatement, particularly where the reinstatement order is
retrospective and is coupled with an order which is very specific
that there may not be any loss of remuneration or benefits, which
was the case in this matter. The arbitrator misdirected herself in
granting both reinstatement and compensation.
[8]Furthermore, the arbitrator exceeded her powers in conducting
her own investigation and misdirected herself regarding the law
and the facts when she considered the proceedings or events that
led up to the final warning, as if that was part of the dispute she
led up to the final warning, as if that was part of the dispute she
was tasked to arbitrate. In this regard, she stressed that there was
no formal notification of the meeting held on 18 March. It was
clearly a misconduct meeting where Motopi was not afforded the
opportunity to state her case or lead evidence or cross-examine
any person relating thereto. In this regard the arbitrator says the
following:
"I am convinced that the said meeting was not a counselling session. According
to the minutes the National HR Manager explained the purpose of the
meeting and his explanation was 'the reason for this meeting is to
investigate allegations of extreme poor work performance of DM (Motopi)
the last three weeks'. There is nothing confusing about what the National
HR Manager's explanation is. This was not a counselling session, there
were, according to his explanation, allegations against the employee. The
irony is that the employee was not made aware of those allegations. There
is no indication that the accounts manager uttered a word. It was only the
National HR Manager firing questions at the employee."
[9]I have also read the documents contained in support of this
application and it is quite clear that it was a counselling
session for poor performance. The arbitrator clearly
confused poor performance and misconduct and her
confusion led to very unfair results. For a counselling
session, an employee need not receive formal notification.
There were other warnings on the file which related to
misconduct but these were not discussed in detail, merely
referred to. The general impression given by the HR
Manager was that Motopi was performing poorly. There was
also previous counselling and she was also asked whether
she needed any assistance. She never said that she did.
[10]Furthermore, the arbitrator had the following to say about the
chairperson at the disciplinary hearing:
"a.The hearing was very irregular. On page 16 the initiator was given the
opportunity to present her case. The chairperson and the employee's
representative asked her several questions. At that time the employee had
not been given the opportunity to present her case but the chairperson
however asked her (the employee) questions as if she had presented her
case.
b.The chairperson was not the referee but a player. She asked questions not for
the sake of clarity. Example, 'was Dinah (Motopi) on probation?' Nobody said
anything about probation and she seemed to be having information that was not
raised at the hearing.
c.Page 17. The employee had still not been given the opportunity to present her
side of the story. The chairperson continued asking questions.
d.Page 18. The employee had still not been given the
opportunity present her side of the story. The chairman
made conclusion about the employee even before hearing was
concluded. Example: 'Stated that this has nothing to do
with Dinah's case. She wasn't coping in the one department
with Dinah's case. She wasn't coping in the one department
and she was moved. She is also not coping in this department'.
e.The chairperson asked the initiator (bottom half page 18) if there was anything
she needed to add (bottom of page 18 and the whole page 19) is the
initiator's additional information after the chairperson saw it necessary to
have additional information. The employee had still not been given an
opportunity to present her case.
f.Page 20. The employee had still not been given an opportunity to present her
case. The chairperson could not wait for the hearing to be finalised before making
her own conclusions. Example, she stated: 'Dinah shouldn't let anyone take the
pods (sic)'.
g.Page 21. The employee had still not been given the
opportunity to tell her side of the story. The
chairperson's interest in the case was evident when she
'called Babsie into the hearing", introduced her and wanted to know from
her if Dinah can do the job'. Her questions were not for clarity but really
cross-examining the employee and the company's witnesses. According
to the minutes she 'faced the accused and wanted to know if she agrees.
h.Page 22. The employee had still not been given the opportunity to present her
side of the story. From this page it is clear that the chairperson had taken
a side. She was answering questions, not directed to her, example: The
employee's representative wanted to know if the employee could not be
demoted like others who are not performing as required, and the
chairperson responded 'if there are no positions open she cannot'. In
another example is when the employee's representative asked if the
employee could not be moved back to the zone and the chairperson
responded 'no, because she is good in admin'. This clearly demonstrates
which side she favoured."
[11]The aforesaid criticism of the disciplinary process is most
unwarranted. I have perused the minutes of the hearing
carefully. It is not a verbatim transcription and tends to be
rather cryptic but contains full sentences. To call the
hearing very irregular was indeed irregular on the part of the
arbitrator. The fact that the arbitrator herself was biased in
favour of Motopi in this matter, was very evident. For
example, she stated that the chairperson was biased
because she asked whether Motopi was on probation. I fail
to comprehend why. That was a very reasonable question in
a matter about poor performance. The arbitrator, as I said
before, did not appreciate the difference between poor
performance and misconduct. Both aspects featured in this
matter in any event.
[12]The fact that a person called Babsie was called into the
hearing to testify as to whether Motopi could "do the job", is no
indication of a biased chairperson. This does not amount to
cross-examination. I fail to see on what basis the arbitrator could
accuse the chairperson of cross-examination in that regard.
[13]She also seems to hold it against the applicant for transferring
Motopi to the POD department from the zoning department, and
given as a reason that she was not coping there. There was
nothing in the evidence to suggest that Motopi was performing her
duties well. In fact, that is not a finding that the arbitrator had
made. In my view, the criticism that the arbitrator levelled at the
applicant in dealing with this poor performance case, is irrational
in relation to the evidence which was before her.
[14]This award falls to be set aside. However, I am not prepared to
substitute the award with one holding that the dismissal was fair.
This was indeed a poor performance case and the applicant had
This was indeed a poor performance case and the applicant had
done frightfully little by way of explaining what precisely was
required of Motopi in this POD section. I was not informed what
the POD section is and as I am not an employee of the applicant I
am in no position to assess whether there was a valid reason for
dismissing the applicant. The matter was presented as if I had
special knowledge of what happened in that department. I do not.
I have pointed out the several misdirections of the arbitrator.
[15]The matter should be referred back to the National Bargaining
Council for the Road Freight Industry to be arbitrated by a
different arbitrator. I make no order as to costs.
E. REVELAS