Ndlovu v Commission for Conciliation, Mediation and Arbitration and Others (JR1855/14) [2016] ZALCJHB 133 (5 April 2016)

Not reportable

THE

LABOUR COURT OF SOUTH AFRICA

HELD

AT JOHANNESBURG

Case no: jR 1855/14

In the matter between:

DUBLINE NDLOVU First Applicant and

THE

COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION First Respondent

COMMISSIONER KATLHOLO WABILE N.O Second Respondent FRIENDLY 7/11

GRAYSTON CC Third Respondent

Heard: 24 March 2016

Delivered: 5 April 2016

Summary: (Review – failure to consider and determine whether there was consistent treatment in deciding if dismissal was substantively fair – finding of guilt justifiable – reinstatement inappropriate -compensation appropriate remedy)

JUDGMENT

LAGRANGE J

Introduction

[1] This is the second occasion that this matter has come on review. In 2014 the arbitrator found that the applicant had breached the employer’s policy and was aware and understood the consequences of the breach, but awarded the applicant 12 months compensation. That award was set aside on the grounds of gross irregularity and was remitted back for a second arbitration. The second respondent arbitrated the dispute on the next occasion and found that the applicant’s dismissal was substantively fair. It is this award which the applicant seeks to set aside on review.

[2] The employer had dismissed the applicant after finding it guilty of four charges namely:

“1. On 28 January 2011 and that your store keys and management safe to another manager without authorisation and/or permission.

2. On 29 January 2011 changed your shift and did not open the store and this was done without authorisation and/or permission from management or informing your seniors whom you report to.

3. On 29 January 2011 you gave your own confidential management password code over the phone to another manager which is not allowed.

4. Refusal to obey an instruction given on 1&2 February 1022 in that you refused to report to the notice to attend a disciplinary hearing.”

[3] From the arbitrator’s award it is clear that the arbitrator concluded that the applicant was guilty of divulging her password and of changing the shifts without permission. There is no indication he considered the other charges and I must assume he thought it was sufficient if she was guilty of those two charges to justify her dismissal.

[4] The applicant conducted the review without any assistance and the respondent filed an answering affidavit before the applicant had even filed a supplementary affidavit. However, she did file a replying affidavit. In essence, her grounds of review are more like grounds of appeal, but because of her lack of any legal expertise I will treat them as if they are put forward on the basis

that the arbitrator could not reasonably have come to the conclusion if he had considered the issues she raises. I will consider the main issues raised below.

[5] Firstly, she contends that the arbitrator could not have concluded that she was an equal of the other manager (known only as ‘Gladys’) whom she had relieved when Gladys was on leave. The importance of this is that, if Gladys was her superior, then changing her shift by agreement with Gladys would have been an authorised shift change and giving Gladys her password was at Gladys’s request. Secondly, the arbitrator ought to have realised that it was unfair to discipline her without disciplining Gladys. Thirdly, it was not the first time that a password had been given from one manager to another. Lastly, the applicant believed that even if the dismissal was fair she should not have walked away “empty-handed” after having worked for the employer for 12 years.

[6] The only witnesses at the arbitration was the owner of the respondent (‘Batista’) and the applicant. Some of the key features of the evidence pertinent to this issue may be summarised as follows:

6.1 The applicant was on a valid final written warning for unauthorised absenteeism from work. The applicant had not appealed against the warning at the time it did to try and contest it at the arbitration.

6.2 Batista testified that when Gladys returned from leave she could not run the store because she did not have access to a personal management password on the system. Under cross-examination, it was put to the applicant that whenever a manager went on leave their password was cancelled and they were issued with a new one on their return, though Batista never testified about this himself. The applicant denied that had ever been the practice.

6.3 Each manager was given a personal security password tag which allowed them access to certain parts of the centralised computer system. They were under strict instruction never to disclose their password to anyone and acknowledged that they occupied a position of trust. The applicant acknowledged that in giving the password away she had breached the trust.

6.4 He instructed her to find the applicant who was not at work so that the applicant could use her password to operate the tills. The applicant said that Gladys had phoned her to say she did not have her own password to operate the tills. Shortly afterwards, Batista phoned to say that she must be at the store in 30 minutes and then dropped the phone. Gladys then phoned again and told her that if the applicant gave her password she would ask Batista to cancel it later, because it would take the applicants too long to come from Malvern to Sandton.

6.5 They then agreed the applicant would give Gladys her password. The applicant still went to the store and waited for Batista to come and cancel her security tag and assign her another one but he never came back that day.

6.6 When he phoned back Gladys told him that the applicant had given her the password on the phone and that is what prompted the disciplinary proceedings.

6.7 The applicant did not get permission to change her shift and by implication should have been on duty that morning. The applicant claimed that she had been instructed by Gladys that, Gladys would open the store that morning at 06H00 and that she had to return the store keys to Gladys. The applicant’s normal shift started at 10H00 but while Gladys was on leave she had been opening the store at 06H00 on Gladys’s instruction. The applicant was supposed to revert to her 10H00 shift on Gladys’s return.

6.8 There was a disagreement whether Batista had instructed the applicant to report to Gladys or whether she was to report to ‘Mike’. It seems to be common cause that Mike was senior to both Gladys and the applicant. Batista said the reason they got the same salary was because she and Gladys were on the same level.

Evaluation

[7] In relation to the arbitrator’s implicit conclusion that Gladys was not her superior, I do not think that this was a completely implausible conclusion. It is not easy on the record to resolve the contradictions in the evidence. On the evidence before the arbitrator, it is fair to say that he might have concluded this issue either way without being obviously unreasonable. However, the relative treatment of her and Gladys by the employer, even if they were equals is another matter, which is relevant to the applicant’s claim of inconsistent treatment.

[8] On the question whether or not it was a practice for passwords to be given from one manager to another despite the rule that they were not entitled to, there was no concrete evidence placed before the arbitrator by the applicant that this had happened before. Accordingly, even if it had been raised as an issue there simply was insufficient evidence before the arbitrator to warrant a finding in the applicant’s favour on this issue in arriving at his decision.

[9] On the failure to take any disciplinary action against Gladys, this is an area of greater concern. If the applicant’s dismissal was justified for breaching the rule against giving a password to another person, and given that the applicant’s testimony of what transpired between herself and Gladys on the telephone was not contested, it is inexplicable why Gladys’s conduct in obtaining the password from the applicant was not considered worthy of disciplinary action. Secondly, if the applicant had changed her shifts without permission the same was true of Gladys who had been a party to that arrangement. The lopsided approach of the employer in dealing with the charges ought to have been glaringly obvious. In this regard, it seems that the arbitrator failed to have paid any attention to the disparity of treatment which was plainly an issue raised by the applicant at the arbitration. The arbitrator’s failure to consider these matters led to him failing to make a finding on inconsistent treatment which was a gross irregularity and unreasonable on the evidence before him.

[10] For that reason, I am satisfied that the applicant’s dismissal could not be justified as substantively fair, not on the basis that she was innocent of the charges the arbitrator found her guilty of, but that it was unfair only to take disciplinary action against her and not Gladys under the circumstances.

[11] I am nonetheless satisfied that the finding of guilt is justified and also that, because she was primarily guilty for giving up her password contrary to the very clear instructions against doing so which undermined the trust relationship, reinstatement would have been an inappropriate remedy. Consequently a more appropriate remedy would have been compensation.

[12] Taking account of the fact that a finding of guilty was justifiable and that her conduct did justify her dismissal but that the failure to take any disciplinary action against Gladys arising from the shift arrangement and the disclosure of the password demonstrated a serious degree of inconsistent treatment, and taking account also of the fact that the applicant derived no personal benefit from the misconduct and had considerable service with the employer albeit with one warning for unauthorised absenteeism, it would be appropriate to award the applicant three months’ remuneration.

Order

[13] The second respondent’s finding that the applicant’s dismissal was substantively fair is set aside and substituted with a finding that it was substantively unfair on grounds of inconsistent treatment.

[14] The third respondent is ordered to pay the applicant three months’ salary amounting to R 17,700-00 (seventeen thousand, seven hundred rands) as compensation within 14 days of the date of this order.

[15] No order is made as to costs.

_______

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT:

In person

THIRD RESPONDENT:

S. Janse Van Vuuren of AHI