Mariju Finance CC t/a Microfin v Mafoyane NO and Others (JR2778/12) [2016] ZALCJHB 142 (8 April 2016)

THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Not reportable

Case no: JR 2778/12

In the matter between:

MARIJU FINANCE CC T/A MICROFIN Applicant and SEFAKO MAFOYANE N.O. First Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (‘CCMA’) Second Respondent MPHETANG ELIZABETH ADELIA MOSEPELE Third Respondent

Heard: 22 March 2016

Delivered: 08 April 2016

Summary: (Review – arbitrator’s skewed assessment of the evidence leading to findings that cannot be justified – outcome not one that a reasonable arbitrator could arrive at)

JUDGMENT

LAGRANGE J

Introduction

[1] The third respondent was employed by the applicant for approximately a year before she was dismissed after being found guilty of gross insubordination, late coming and gross negligence. She challenged her dismissal and the arbitrator found that her dismissal was procedurally fair but substantively unfair. In relation to the particular charges he found that she was not guilty of insubordination but rather of expressing indignation. He also found that her conduct was not grossly insolent. He also found that the applicant had failed to discharge the onus of proving her guilty of negligence. As the applicant was not seeking reinstatement, the arbitrator awarded her compensation equivalent to 10 months’ salary taking into account his views on the levels of poverty in Boshoff where she lived.

[2] In the review proceedings, the applicant does not seek to set aside the arbitrator’s finding in relation to negligence and also does not rely on the charge relating to late coming as a justifiable reason for the third respondent’s dismissal. What the applicant takes issue with is the reasoning of the arbitrator in dealing with the evidence before him and the findings made on that evidence, and it also contends that the decision to compensate the applicant was unreasonable.

[3] Without going into detail into the evidence before the arbitrator, it is sufficient to say that there was overwhelming evidence that the third respondent displayed open disrespect towards her superior when she was instructed to assist in looking for files. Her refusal to comply with an instruction which was issued more than once was persistent and obstinate and occurred in front of other employees. The arbitrator adopted the most euphemistic interpretation of the evidence possible in concluding that her action was a mere expression of indignation. The arbitrator placed much emphasis on the fact that the third respondent ultimately did start to assist looking for the files which he interpreted to mean that the repeated instructions to the third respondent had did

have the desired effect and any insubordination was thereby cured. He failed to deal with the fact

[4] However, he failed to deal with the fact that she did so only after being instructed directly several times to look for the files in question and after disputing that it was part of her duties and having walked out of the room and pointedly ignoring her supervisor for a while thereafter. The arbitrator completely neglected to deal with the fact that her conduct was a persistent challenge to her superior’s authority and that she only relented when she saw fit to comply having actively resisted it for some time.

[5] In arriving at his conclusions, the arbitrator ignored the fact that important aspects of the third respondent’s defence were never put to any of the witnesses called by the employer and yet he concluded that those parts of her version were unchallenged because of this. Thus, for example, the chairperson of the enquiry was never challenged under cross-examination on the recorded answers given by the third respondent in the minute of the disciplinary enquiry, yet in her evidence she denied numerous instances in which her defence at the enquiry was recorded.

[6] It is difficult to read the award in the light of the transcript and not come to the conclusion that the arbitrator only had ears for the applicant’s version and his assessment of the evidence was so skewed that it displayed a palpable bias, quite apart from any criticism of the way he had intervened in the course of the arbitration proceedings. This perception is reinforced by the fact that the arbitrator failed to even attempt to make any credibility findings in evaluating the evidence despite the fact that aspects of the respective versions of events were mutually exclusive.

[7] It may be that the arbitrator was swayed by the unfortunate circumstances that the third respondent found herself in after her dismissal, namely that she had been unemployed for four months. He characterised her dismissal as an act of “throwing her on the dustbin of poverty”. However, she did not end up in that position through no fault of her own or through some mishap beyond her control, but as a result of her own wilful defiance. If she had simply followed the reasonable instruction she had been given she would not have found herself in that situation.

[8] I am satisfied on the evidence that it was because the arbitrator’s assessment of the evidence was so one-sided that he arrived at the conclusion he did in relation to the charge of insubordination. No reasonable arbitrator could have reached the conclusion he did on all the evidence that was before him.

[9] It is difficult to avoid the conclusion that on the evidence, the applicant demonstrated that the third respondent raised a persistent and direct challenge to his reasonable instruction which she only relented on when it suited her and her eventual compliance could not undo the gravity of the challenge to his authority which her conduct had displayed. In the light of the gross nature of her insubordination and given her relatively short service and the absence of a clean disciplinary record the third respondent’s dismissal on account of gross insubordination was not unjustified or inappropriate.

Order

[10] The arbitration award of the first respondent dated 19 September 2012 in case number FS 3508/12 is reviewed and set aside, save for his finding that the third respondent’s dismissal was procedurally fair.

[11] The arbitrator’s finding that the third respondent’s dismissal was substantively unfair is substituted with a finding that her dismissal was substantively fair.

[12] No order is made as to costs.

___________________________________

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT:

S U Roeloffs instructed by De Villiers & Du Plesssis.

THIRD RESPONDENT:

No appearance.