Fidelity Supercare Services Group t/a Supercare v Mudau NO and Others (JR660/2009) [2014] ZALCJHB 494 (26 November 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 660/2009

In the matter between:

FIDELITY SUPERCARE SERVICES GROUP

t/a SUPERCARE.......................................................................................................................Applicant

and

ROBERT MUDAU N.O...............................................................................................First Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION..................................................................... Second Respondent

GIWISA OBO MASENGEMU, VERONICA......................................................... Third Respondent

Heard: 4 November 2014

Delivered: 26 November 2014

Summary: review of arbitration award- commissioner finding employee’s dismissal procedurally unfair and awarding compensation. Employer’s evidence contradictory as to the date of disciplinary hearing- evidence showing that employee not afforded opportunity to refute employer’s evidence- Commissioner’s award reasonable - review dismissed.

Nkutha-Nkontwana AJ

Introduction

[1] The Applicant seeks an order reviewing and setting aside the arbitration award issued by First Respondent (“Commissioner”) on 24 February 2009 under case number GAJB31555-08. The challenge to the arbitration award is limited to the Commissioner’s finding that the dismissal of the Third Respondent was procedurally unfair and awarded three months compensation which amounts to R5 231.58. The application is unopposed.

Background facts

[1] The Applicant is a cleaning company that supplies outsourced cleaning and care giving services to various clients. The Third Respond was employed as a care giver and placed at Solheim Retirement Home, an organisation that provides care to the frail retired senior citizens.

[2] On 15 September 2008, the third respondent was allocated as care worker to one Ms Roodt, a resident of Solheim Retirement Home. Third Respondent was charged and dismissed for theft in that an amount of R280.00 disappeared from Ms Roodt’s cupboard whilst being assisted by her.

[3] According to the Applicant, the disciplinary hearing was held on 29 September 2008 as per the notice that has been given to the Third Respondent. However, the copy of the said notice could not be located. On 6 October 2008, the Third Respondent was subjected to a polygraph test which she failed. The hearing reconvened on 9 October 2008 to discuss the polygraph test results and to hear evidence in mitigation and aggravation of sentence. Subsequently, the Third Respondent was dismissed.

[4] At the CCMA arbitration hearing, the Third Respondent disputed that she had been subjected to a disciplinary hearing. Commissioner, according found in her favour on procedure and awarded her three months’ salary.

Grounds of review

[5] The Applicant submitted that the arbitration award was reviewable based on the grounds summarised as follows:

8.1 The Commissioner failed to apply his mind to the evidence before him and, as such, failed to execute his duties in determining the issue of procedural fairness impartially; and

8.2 the commissioner committed a misconduct as envisaged in section 145(2)(a)(i) and/or 145(2)(a)(ii) and/or 145(2)(a)(iii) of the Labour Relations Act 66 of 1995, as amended [“LRA”].

Legal principles

[6] It is incumbent upon the Court to establish whether there is a prima facie case to interfere with the arbitration award on review. Section 145 of the LRA provides limited grounds for review and is suffused by the constitutional standard of reasonableness.[1] Put differently, the applicant must show that the decision reached by the CCMA commissioner is one which a reasonable decision-maker could not reach.[2]

[7] In Heroldt v Nedbank Ltd,[3] the Court summarised the applicable test for review as follow:

‘[T]he position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’

Application of Legal Principles

[8] The Applicant asserts in paragraph 7.12 of the founding affidavit that “…the only logical conclusion that one can arrive at in an endeavour to comprehend the first respondent’s findings of procedural

fairness is that the finding was motivated by charitable considerations instead of evidence properly before the first respondent and the relevant legal principles”.

[9] As stated above, the disciplinary hearing was allegedly held on 29 September 2008; on 6 October 2008, the Third Respondent was subjected

to a polygraph test; on 9 October 2008, hearing resumed to hear evidence in mitigation and aggravation of sentence. However, when

Dietrich, the chairperson, was asked by the commissioner to explain what transpired during the said disciplinary hearing, she seem not to be sure as to who testified and whose evidence was ultimately accepted as the company’s version of events.[4] In fact, it is apparent from the record of the disciplinary hearing that Dietrich did not even fill-in the names of the witnesses who testified on behalf of the Applicant or record the date of the initial hearing. This is a pertinent omission in light of the Third Respondent’s claim that the procedure followed by the Applicant was flawed.

[10] I note also that all the witnesses called by the Applicant during the arbitration hearing gave contradictory evidence on the dates of the hearing and on what actually transpired during the alleged hearing. According to Dalmaine, only Yvonne testified during the disciplinary hearing since she was the site manager and had conducted the investigation.[5] On the contrary, Dietrich testified that both Dalmaine and Yvonne gave evidence as captured in the record of the disciplinary hearing. Also, Dietrich testified that the disciplinary hearing was held over a period of two days, which is 29 September and 9 October 2008, contrary to Yvonne’s evidence that the hearing was postponed in the first instance due the Third Respondent’s

non-attendance.[6] Yvonne seemed not to recall the dates of the hearing in any event.

[11] The Third Respondent, on the other hand, adamantly testified that there was no disciplinary hearing. She was suspended on 16 September 2008 and informed to present herself on 23 September 2008 for a polygraph test. On 23 September, she was told that the test was postponed to 29 September 2008 to no avail and it was finally conducted on 6 October 2008.[7] On 9 October 2008, she was showed the polygraph test results and subsequently asked to sign the letter of termination.

[12] It is therefore clear to me that there was only one sitting of the disciplinary hearing and it was held on 9 October 2008. This is reinforced by the record of the disciplinary hearing dated 9 October 2008 and no date is provided for the initial hearing. According to Dietrich, that hearing discussed the outcome of the polygraph test which found the Third Respondent to be untruthful and guilty. In her reasons for the findings, Dietrich said that the evidence contained in the CCTV footage backed up the polygraph results. However, there was no hearing where such evidence was presented to Third Respondent to challenge.

[13] It is my view that nothing turns on the notice of a disciplinary hearing allegedly handed to the Third Respondent. The essence of the matter is whether the hearing held on 9 October 2008 was fair. As stated above, this meeting discussed the outcome of the polygraph test. It stands to reason, therefore, that the Third respondent was never afforded an opportunity to challenge the Applicant’s evidence that allegedly backed up the polygraph test results. Accordingly, the commissioner correctly found that the procedure that led to the Third Respondent’s dismissal was unfair.

Conclusion

[14] This one of the cases where the material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside as the commissioner’s arbitration award constitutes a reasonable finding.[8]

[15] I deem it necessary to comment about the imprudence of challenging the arbitration award when the quantum in question is merely R5231.58. The Applicant’s attorney submitted that it as a matter of principle for the Applicant. Besides being a costly principle, I reckon it was incumbent upon the legal representatives to advise client on matters such as this, more especially since the law is as crystal clear.

Order

[16] In the premises, the application is dismissed.

__________________

Nkutha-Nkontwana AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

FOR THE APPLICANT: Attorney Hardus Lee

Instructed by: Snyman Attorneys

[1] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at para 108.

[2] Above n 1 at para 107 to 109.

[3] (2012) 33 ILJ 1789 (LAC) at para 25; see also Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) at para 18.

[4] Transcribed record, page 85 line 1 -25.

[5] Transcribed record, page 103 line 15 -21.

[6] Transcribed Record page 93 line 13- 16.

[7] Transcribed Record page 93 line 13- 16.

[8] Above n 3.