Moji v Commission for Conciliation Mediation and Arbitration and Others (JR 2027/11) [2013] ZALCJHB 229 (25 September 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JR2027/11

In the matter between:

PATRICIA CYNTHIA MOJI ....................................................................................APPLICANT

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION .........................................................FIRST RESPONDENT

COMMISSIONER G ZILWA ..............................................................SECOND RESPONDENT

THE JOBURG MARKET .......................................................................THIRD RESPONDENT

Heard: 11 January 2013

Delivered: 25 September 2013

________________________________________________________________

CHENIA AJ

Introduction

[1] This is an application in terms of section 145 of the Labour Relations Act1 ("LRA") to review and set aside the arbitration award dated 25 July 2011, issued by the Second Respondent, acting under the auspices of the First Respondent, under case number GAJB 10889-11 (the "Award").

[2] The order sought on review, amongst others, is the following-

(a) the Award issued by the Second Respondent under the auspices of the First Respondent be reviewed and set aside;

(b) the Third Respondent be directed to pay the costs of the application.

[3] The Second Respondent issued the following award-

"The dismissal of the Ms Cynthia Patricia Moji was substantively fair.

I award no compensation for the Respondent's failure to hold an enquiry before the dismissal"2

Background

[4] The Applicant was employed by the Third Respondent as its Chief Financial Officer ("CFO").

[5] During the course of January 2011 the Applicant was charged with gross misconduct in respect of procurement issues and dishonesty, and misrepresenting certain facts to the CEO of the Third Respondent which may have resulted in a company having a qualified audit.

[6] A disciplinary hearing was scheduled for 24 and 25 January 2011. The Applicant provided a medical certificate booking her off sick from work until 04 February 2011. The disciplinary enquiry was, as a result, postponed until 10 and 11 February 2011.

[7] The Applicant telefaxed another medical certificate to the Third Respondent booking her off until 07 March 2011.

[8] The Third Respondent did not consent to a postponement of the disciplinary enquiry, although it appears that the Applicant's legal representatives agreed that the enquiry should proceed on 11 February 2011. Both the Applicant and the representative failed to attend on the scheduled date.

[9] The recommendation of the external chairperson of the disciplinary enquiry was that the Applicant be dismissed.

[10] The Board of the Third Respondent decided to apply progressive discipline and instead demoted the Applicant to a lower position.

[11] On 07 March 2011 the Applicant received a letter informing her of her demotion. At no stage did the Applicant appeal the company's decision to demote her.

[12] On 14 March 2011, the Applicant referred an unfair dismissal dispute to the First Respondent. At this stage, the Applicant had still not appealed the decision regarding her demotion nor had she reported for duty. However, she did record in her referral that she did not accept her demotion.

[13] On or about 31 March 2011, the Third Respondent wrote a letter to the Applicant informing her that she was absent without leave and instructed her to report for work immediately. Despite this request, the Applicant simply failed to report for duty and failed to inform her line manager as to why she was not reporting for duty.

[14] The Applicant's conduct was contrary to the Third Respondent's leave policy, which required employees to report their absence to their managers or supervisors, within 4 hours of such absence.

[15] On 21 April 2011, the Third Respondent wrote a further letter to the Applicant informing her that in terms of its policy she was deemed to have deserted or absconded from duty and therefore her services had been terminated. The letter invited the Applicant to make representations in writing. The Applicant did not make any representations but instead referred an unfair dismissal dispute to the CCMA.

[16] The arbitration was presided over by the Second Respondent and an award was issued on 25 July 2011 in which the Second Respondent found that the dismissal of the Applicant was substantively fair and there was no award for compensation for the failure of the Third Respondent to hold the enquiry prior to the dismissal.

The arbitration hearing and the award

[17] The Second Respondent was required to determine whether the dismissal of Ms Cynthia Patricia Moji was both procedurally and substantively fair and appropriate relief.

[18] The Applicant was dismissed for being absent without leave and/or permission. She was deemed to have deserted or absconded from duty.

[19] The parties concluded a pre-arbitration minute prior to the arbitration proceedings in which the issues in dispute were set out.

[20] The Second Respondent issued an award on or about 25 July 2011. This award held that the dismissal of the Applicant was substantively fair but procedurally unfair for not convening a disciplinary enquiry prior to dismissal, in terms of the Third Respondent's disciplinary code and procedure. However, no compensation was awarded.

Grounds of review

[21] The Applicant submits that the Second Respondent's Award is reviewable on the following grounds -

(a) The Second Respondent failed to determine the appropriateness of the sanction as it was not included in the award and ignored that there had been a dispute with regards to the Applicant's demotion;

(b) The Second Respondent ignored evidence led by the Applicant as regards her intention to be bound by her employment contract;

(c) The Second Respondent made speculative conclusions/ findings;

(d) The Second Respondent ignored binding authority;

(e) The Second Respondent failed to apply his mind in that he took into account irrelevant considerations like the non-compliance with the leave policy and therefore did not look at the critical issues such as the intention of the Applicant in respect of the potential desertion;

(f) The Second Respondent failed to exercise his discretion in a proper manner by taking into account irrelevant considerations when deciding whether or not to grant compensation.

The issues

[22] The Applicant seeks to review and set aside the award issued by the Second Respondent and substitute it with an order that the Applicant's dismissal was substantively unfair.

The appropriate test for review

[23] The test for review of CCMA arbitration awards was enunciated in Sidumo & Another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC) as thus –

"[110] To summarise, Carephone held that section 145 of the LRA was suffused by the then constitutional standard that the outcome of an administrative decision should be justifiable in relation to the reasons given for it. The better approach is that section 145 is now suffused by the constitutional standard of reasonableness. That standard is the one explained in Bato Star is the decision reached by the commissioner one that a reasonable decision maker could not reach? Applying it will give effect not only to the constitutional right to fair labour practices but also to the right to administrative action which is lawful, reasonable and procedurally fair."

[24] The Constitutional Court in Sidumo also held the following in respect of the manner in which a Commissioner ultimately needs to arrive at a conclusion:

"[78] In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances."

[25] Further, the Constitutional Court in Sidumo found that, in order to succeed with a reasonableness review, the Applicant must establish that the result of the award falls outside

of a range of reasonableness

"To my mind, having regard to the reasoning of the commissioner, based on the material before him, it cannot be said that his conclusion was one that a reasonable decision-maker could not reach. This is one of those cases where the decision-makers acting reasonably may reach different conclusions. The LRA has given that decision-making power to a commissioner."

[26] The majority of the Constitutional Court set the threshold test for the reasonableness of an award or ruling as the following: “Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?

[27] In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & Others,3 and in applying the above principles, Van Niekerk J held as follows -

"In summary, s 145 requires that the outcome of CCMA arbitration proceedings (as represented by the commissioner's decision) must fall within a band of reasonableness, but this does not preclude this court from scrutinizing the process in terms of which the decision was made. If a commissioner fails to take material evidence into account, or has regard to evidence that is irrelevant,

or the commissioner commits some other misconduct or a gross irregularity during the proceedings under review and a party is likely to be prejudiced as a consequence, the commissioner's decision is liable to be set aside regardless of the result of the proceedings

or whether on the basis of the record of the proceedings, that result is nonetheless capable of justification."

[28] The Labour Appeal Court has also recently applied the Sidumo test. In Mutual Construction Co Tvl (Pty) Ltd v Ntombela No & Others,4 the Labour Appeal Court held -

"Besides the fact that the judgment of the Labour Court was handed down prior to the advent of the Sidumo decision, it does nevertheless seem to me that the court a quo dealt with the matter, on review, somewhat narrowly by tending to focus strictly on the reasons given by the commissioner for his decision, instead of considering the matter more broadly in the light of the entire evidence adduced at the arbitration hearing, which included the third respondent's own admissions of serious and dishonest wrongdoing."

[29] More recently, the jurisprudence relating to reviews has been expanded upon -

Herholdt v Nedbank Limited5:

“[30] Whether or not an arbitration award or decision or finding of a commissioner is reasonable must be determined objectively with due regard to all the evidence that was before him or her and what the issues were. There is no requirement that the commissioner must have deprived the aggrieved party of a fair trial by misconceiving the whole nature of enquiry. The threshold for interference is lower than that; it being sufficient that the commissioner has failed to apply his mind to certain of the material facts or issues before him, with such having potential for prejudice and the possibility that the result may have been different. This standard recognizes that dialectical and substantive reasonableness are intrinsically inter-linked and that latent process irregularities carry the inherent risk of causing an unreasonable substantive outcome.

[55] Besides, I imagine, few decisions that are wrong are likely to be upheld as reasonable.”

[30] Having regard to the above, I find that the grounds as formulated in Sidumo supra and the other authorities are applicable to this review application.

Judgment

[34] in a consideration of the grounds of appeal raised in the Applicant's papers, I have considered both the Applicant's and the Respondent's heads of argument, the pleadings in the matter, the arguments raised at Court and the arbitrator's award.

[35] At the outset, it must be noted that the Commissioner did not specifically and separately deal with the issue of the appropriateness of dismissal as a sanction. This appears, inter alia, to be the main focus of the Applicant's grounds of review and reference is made in this regard to paragraph 33 of the award and the finding of the Commissioner as follows:

"In view of the above I find that the Respondent had a fair reason to terminate the employment of the Applicant, Ms Moji. I now turn my attention to the procedure"

[36] The Applicant submitted in argument that the failure of the Second Respondent to address himself to this aspect amounted to deferring to the Third Respondent on the issue of sanction.

[37] The argument further raised that when the issue was specifically raised then it was incumbent on the Commissioner to deal with it in the award for it to be sustainable in law.

[38] Sub-reference was made to Sidumo that a reviewing Judge cannot second guess what an arbitrator was implying and that if the review was successful, it should be referred back for determination of an appropriate sanction.

[39] The other arguments raised were briefly as follows:

[39.1] The Commissioner failed to appreciate the distinction between some knowledge and no explanation for the absence.

[39.2] The Second Respondent speculated the reason for the Aplicant's failure to report for duty, which constitutes a latent defect.

[39.3] The Commissioner failed to apply her mind to the intention of the employee in relation to the charge of desertion.

[39.4] The Commissioner took into account irrelevant considerations in not granting compensation.

[40] I now deal with the grounds of appeal raised:

[40.1] Failure to deal with the appropriateness of the sanction of dismissal –

40.1.1. I am in agreement with the Third Respondent's submissions that it is evident from the award that the Second Respondent viewed all the issues holistically, placed them in the historical context of the matter and then reasonably concluded that there was fair reason to terminate the Applicant's services.

40.1.2. It is the Court's opinion that the award of the Commissioner is well reasoned in relation to the Applicant's failure to communicate with the employer on her continued absence from work, failed to comply with the instruction to return to work, did not

submit any further proof of authorised absence and incorrectly relied on the knowledge of the employer's of her whereabouts as a justification not to present herself for work.

40.1.3. I am furthermore in agreement with the Third Respondent's submissions that, whilst the Commissioner did not specifically address the issue of why dismissal was appropriate, there certainly was reference to factors that an adjudicator would consider in determining an appropriate sanction.

40.1.4. From the award it us evident that the Commissioner dealt with the two issues simultaneously and I cannot find fault with the reasonableness of the conclusions reached by the Commissioner in relation to his finding that the dismissal was fair.

40.1.5. The Third Respondent's representative referred me to the decision of Zaayman v Provincial Director, CCMA [1999] 1 BLLR 92 (LC), if the Court were to find that the Commissioner did not specifically deal with the sanction. I do not believe that the Court needs to deal with this matter in so far as it is the Court's opinion that this matter has been reasonably dealt with by the Commissioner in respect of the detailed reasoning in the award.

40.1.6. In the circumstances, this ground of review must fail.

[40.2] The Second Respondent ignored evidence led by the Applicant in respect of the intention to be bound by her contract of employment:

40.2.1. I am not in agreement with this contention, it is evident from the award that the Commissioner, as stated above, considered in detail what the Applicant did in relation to the absence from work and since notification of her demotion.

40.2.2. The fact that the Commissioner did not accept the Applicant's version in this regard, does not necessarily mean that this evidence was ignored. What it means is that the Commissioner accepted the Respondent's evidence in respect of this issue and I cannot find fault with the reasoning stated by the Commissioner in the award for accepting the Respondent's evidence.

40.2.3. The Applicant's explanation during the arbitration proceedings for her absence was both contradictory and unsustainable. Her explanation that there was no position for her to report to and also that she was not sufficiently fit to return to work are both sustainable because if she continued with her illness, she could have submitted a medical certificate from her medical practitioner, who indicated his preparedness to issue same. If the Applicant was intent on continuing the Employment relationship, she would have presented herself for work and continued with her dispute that was referred to the CCMA in respect of the unfair demotion.

40.2.4. Furthermore, if she did not know which position she would be reporting to, she could have communicated with the employer in this regard. In the circumstances, the Applicant's version that her intention was always to be bound by her employment contract cannot be sustained by her conduct.

40.2.5. Furthermore, and this also constituted a further ground of review, the Commissioner speculated the reason for the Applicant's non-attendance at work as being simply that she refused to work in her demoted position.

40.2.6. the Applicant's response in cross-examination as to why she did not provide a sick note for her absence being "to whom and for what position", in the Court's opinion, indicates the attitude of the Applicant in relation to her demoted position.

40.2.7. From the evidence led at the arbitration proceedings, I cannot fault the Commissioner in drawing a conclusion, which I believe is a reasonable conclusion, that the Applicant did not want to return to work in the demoted position.

40.2.8. In the circumstances, both these grounds of review must fail.

40.3 SABS Judgment

40.3.1. During argument, I was given the reference to the SABC judgment and why, in the Applicant's opinion, the Commissioner did not comply with this binding authority.

40.3.2. I believe this issue has been addressed above in relation to the intention to dessert and the unauthorised absence from work and will be dealt with below in relation to the Commissioner's taking into account irrelevant considerations like non-compliance with the leave policy.

40.4. Taking into account irrelevant considerations

40.4.1. I am in complete agreement with the Third Respondent that the non-compliance with the Third Respondent's leave policy is a critical issue to the dispute, in that the Applicant was charged in terms of that policy.

40.4.2. Therefore, the policy was an important consideration in determining whether or not the Applicant contravened a workplace rule. The rule being unauthorised absence without leave and desertion or abscondment.

40.4.3. Accordingly, this ground of review must also fail.

40.5. Irrelevant considerations in deciding not to grant compensation

40.5.1. I am not convinced that the invitation to make representations given to the Applicant, prior to the deemed decision being confirmed, did not constitute an opportunity for the Applicant to be heard.

40.5.2. However, in so far as there ought to be compliance with an employer's disciplinary code and procedure, which provides for a disciplinary enquiry, I cannot fault the Commissioner on finding that a procedural irregularity occurred in this regard.

40.5.3. The Court is of the opinion that the Commissioner had fully reasoned her reasons for not granting compensation, which are not only sustainable but constitutes a rational justification for not granting compensation to the Applicant.

40.5.4. I do not believe that I can interfere with the Commissioners award in respect of compensation on the basis of unreasonableness.

[41] In the circumstances, the application for a review of the Commissioner's award must fail and I make the following order:

41.1. The application to review and/or set aside the decision of the Second Respondent of 25 July 2011 under case number GAJB10889-11 is dismissed.

41.2. I can find no reason why costs should not follow the suit.

_____________

Acting Judge of the Labour Court

APPEARANCES:

APPLICANT: G Moshoana from Mohlaba & Moshoana Inc

Third Respondent: C. Todd from Bowman Gilfillan Inc

1Act 66 of 1995

2Page 9 of the award, page 22 of the bundle.

3[2010] 31 ILJ 452 (LC).

4[2010] 31 ILJ 901 (LAC).

5 [2012] 9 BLLR 857 (LAC)