Mont Blanc Financial Services (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR812/13) [2014] ZALCJHB 375 (3 October 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case No: JR 812/13

In the matter between:

MONT BLANC FINANCIAL SERVICES (PTY) LTD

Applicant

and

COMMISSION FOR CONCILILATION First Respondent

MEDIATION AND ARBITRATION

K KLEINOT N.O. Second Respondent

SOLIDARITY OBO M VAN NIEKERK Third Respondent

Heard: 28 August 2014

Delivered: 3 October 2014

Summary: Review application – modifying award on review

MOOKI AJ

[1] The applicant charged Ms Minette van Niekerk with failing to carry out instructions. It was alleged that Ms van Niekerk was instructed to attend at clients but failed to do so. She was subsequently dismissed following an internal disciplinary hearing.

[2] The second respondent determined that dismissal was unfair, both substantively and procedurally and dismissal was an inappropriate

sanction. The second respondent also found that the dismissal was unfair "given that the charges were unsubstantiated". The second respondent awarded Ms van Niekerk compensation in the amount of R60,000 00.

[3] The applicant challenged the award on four grounds. First, that the second respondent erred in the finding that Ms van Niekerk’s

evidence on visiting clients was unchallenged; that the second respondent misconstrued the nature of the enquiry in finding that

there was no evidence Ms van Niekerk was disrespectful or undermined the authority of her line manager or of the chief executive officer; the finding based on performance management of the Ms van Niekerk, and that the dismissal was procedurally unfair.

[4] It was submitted on behalf of the applicant that the grounds, taken together, render the decision of the second respondent unreasonable.

The applicant concentrated the substance of its attack on the award on paragraphs 39, 44, and 47 for the award.

[5] The second respondent found, in paragraph 39 of the award, that:

The evidence reflects that the sales force diary was filled in but it is not clear from reading the diary which clients were visited. The rule that if it is not in the sales force it does not exist was not challenged and must stand. Thus the information provided by Ms van Niekerk in the diary is not corroborated by any other document and the doubt about performance or failing to follow instructions

regarding visiting clients was reasonable. However, there is no evidence before me that the sales force diary was filled in, in order to deliberately mislead the company. Ms van Niekerk explained the visits that had occurred and this was not challenged by the company and must stand.

[6] The second respondent continued as follows in paragraph 40 of the award:

Visiting the clients on a regular basis appears to be an important task. Ms van Niekerk visited some clients but not all her clients. There is no evidence before me revealing that there was a specific average number of clients that had to be visited in a month.

[7] The second respondent found in paragraph 44 of the award that:

In terms of procedure it was alleged that the chair was biased and that no evidence in mitigation was led. The evidence is that the chair has a close familial relationship with the CEO. This lends itself to the perception of bias. This was the only evidence led with regard to bias, this is insufficient to establish bias given that this was never raised with the chair nor was the chair afforded an opportunity to recuse himself. It appears to be common cause evidence in mitigation was not led; this is a flaw but does not render the procedure followed fatally flawed.

[8] The third respondent’s finding that the charges were unsubstantiated is not supported by the evidence. This finding is

irreconcilable with the conclusions as set out in paragraph 39 of the award.

[9] There is also merit in the complaint regarding the finding that the dismissal was procedurally unfair. The finding on procedural

unfairness is clearly at odds with the conclusion reached in paragraph 44 of the award; namely that the flaw in the procedure was

not fatal.

[10] It is a duty of a commissioner, such as the second respondent, to determine the fairness or otherwise of a dismissal. A court in review proceedings is concerned only with the reasonableness of the decision by a commissioner. In this matter, the second respondent determined that a sanction of dismissal was inappropriate. In coming to that conclusion, the second respondent had regard to explanations by Ms van Niekerk relating to cancellations by some clients; including the finding that there was no evidence that Ms van Niekerk had to visit a specific number of clients per month.

[11] The court is of the view that, whatever the shortcomings in the award, there is no basis for the court to disturb the finding that dismissal was inappropriate in the circumstances. The court is of the view however that the award cannot remain undisturbed in total. In particular, the finding on procedural unfairness cannot stand. The court is satisfied that the decision that there was procedural unfairness in the dismissal must be reviewed. It is unreasonable for the second respondent to have concluded that there was procedural unfairness having determined that the flaw in the procedure was not fatal.

[12] It would serve no purpose to remit the matter to the first respondent. Ms van Niekerk did not seek reinstatement. The amount of the compensation should be reviewed. It is clear to the court that the second respondent awarded compensation on account of the dismissal being unfair both substantively and procedurally. It appears to me that it would be just and equitable that Ms van Niekerk be awarded compensation equivalent to one and a half months of her salary at the time of her dismissal.

[13] I make the following order:

1 The award in case number GAEK 8481/12 is reviewed.

2 The dismissal of Ms van Niekerk was procedurally fair.

3 The first applicant is ordered to pay Minette van Niekerk compensation in the amount of R20,000.00.

____________________________

O Mooki

Judge of the Labour Court (Acting)

APPEARANCES:

For Applicant:

N Basson

Instructed by:

Hooyberg Attorneys

For the Third Respondent: I Labuschagne (of Solidarity)