Thobejane v Buthelezi Ems (Pty) Ltd and Others (JR1652/15) [2016] ZALCJHB 556 (30 November 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 1652/15

In the matter between:

MASONTI ELLIOT THOBEJANE

Applicant

and

BUTHELEZI EMS (PTY) LTD

First Respondent

COMMISSION FOR CONCILIATION

Second Respondent

MEDIATION AND ARBITRATION

COMMISSIONER MARTHINUS VAN AARDE

Third Respondent

Heard:

13 September 2016

Delivered: 30 November 2016

Summary: A commissioner commits gross irregularity and misconduct by issuing an incomprehensible and self-contradictory arbitration award.

MTHOMBENI AJ

Introduction

[1]

This is an application for the review and setting aside of an arbitration award (“the award”) issued by the third respondent (“the commissioner”) on 4 August 2015. The application is opposed.

Background

[2]

The applicant was employed at the first respondent with effect from 6 May 2015 as an Ambulance Emergency Assistant on a three months’

probation.

[3]

The first respondent dismissed the applicant on 4 July 2015 for alleged incompatibility, without conducting a disciplinary enquiry into the allegation.

[4]

Aggrieved by the dismissal, the applicant approached the second respondent and referred a dispute, claiming unfair dismissal. After a conciliation meeting, the dispute remained unresolved. Eventually, the commissioner was appointed to arbitrate over the matter.

[5] The commissioner concluded that the dismissal was both procedurally and substantively fair.

Grounds of review

[6]

The applicant stated that the commissioner committed a gross irregularity in the conduct of the arbitration proceedings in that he concluded that:

6.1 the applicant’s dismissal was, in the absence of a disciplinary enquiry, procedurally and substantively fair; and

6.2 the applicant had sent a text message (“SMS”) to the employer, the contents of which were very serious and had an effect

on the continued employment relationship, while the alleged recipient of the SMS did not testify at the arbitration hearing.

The award

[7] In his analysis of evidence and argument, the commissioner at the outset invokes Item 8 of the Code of Good Practice: Dismissal (“the Code”).

[8]

The commissioner found that the first respondent had elected to engage the applicant in an informal consultation process within the context of Item 8 of the Code and the applicant had been afforded an opportunity to respond to the allegations.

[9] He concluded that the first respondent’s failure to charge the applicant and conduct a formal disciplinary enquiry was not unfair, for item 8 of the Code requires a less stringent procedure.

[10] While the commissioner acknowledged that the applicant’s employment contract was terminated for serious misconduct, he concluded that the first respondent consulted with the applicant but the latter’s failure to rectify his behaviour led to his dismissal.

[11]

Finally, the commissioner perorated that the applicant was dismissed due to incompatibility, but not for poor work performance.

Analysis

[12]

According to first respondent, the applicant was dismissed due to incompatibility and not for poor work performance, but was consulted

for the purpose of a performance review owing to various complaints about his behaviour.

[13]

In his survey of evidence, the commissioner stated:

‘In cross-examination Mr Shabangu testified as follows:

He re-stated that the Applicant’s contract was terminated due to his general rude/disrespectful behaviour (incompatibility with the company’s culture/protocol) and not on (sic) his work performance per se. He acknowledged that the Applicant was not formally charged/called to a disciplinary hearing, but was consulted by means of a performance review following the various complaints about the Applicant’s general behaviour’.

[14]

This notwithstanding, the commissioner concluded that the applicant was dismissed after he had been given an opportunity to respond to allegations as contemplated in Item 8 of the Code. Hence, there was no obligation on the first respondent to charge the applicant and subject him to a disciplinary enquiry.

[15]

In my view, the first respondent, by its own admission, dismissed the applicant for misconduct without affording him a disciplinary

hearing. However, the commissioner misconstrued the nature of the enquiry, misconceived the nature of his duties and incorrectly relied on Item 8 of the Code to justify his conclusion.

[16]

Item 8(j) of the Code states:

‘Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period’. (Own emphasis)

[17]

The commissioner erred when he concluded the applicant was dismissed within the context of Item 8 of the Code, considering that the applicant was not dismissed for poor performance.

[18]

The commissioner did not only make an error of law, but he also made logical errors and failed to apply his mind to the issues before him. The award is incomprehensible and self-contradictory. In this regard, it is apposite to reproduce the following from his award:

‘5.5 Having said the above the employer in the specific circumstances has discretion to either engage into a consultation session with the probationer and/or to level formal disciplinary charges against the employee. The Respondent opted for the first option and engaged into an informal consultation process within the context of Schedule 8 (8) (sic). The Applicant was afforded the opportunity to respond to the allegations…. I also cannot agree with the Applicant’s argument that the procedure followed was unfair in the sense that no charges was (sic) put to him/not called to a formal hearing. As pointed out, Schedule 8 (8) (sic) requires a less stringent approach (procedure).

5.7 The Applicant’s contract was terminated on the basis of his general conduct [insolence, disrespect towards management, insubordination and to some extend (sic) serious misconduct (threatening conduct)]. It also appears that the Respondent approached the consultation meeting held on 4 July 2015 with an open mind. The Applicant’s own conduct (inability to give any positive response to rectify his behaviour) led to the decision to rather terminate his contract of employment….The Applicant’s contract of employment was thus not terminated for poor work performance per se but due to his incompatibility to adjust to the employer’s work culture, ethics and protocol”. (Own emphasis) (See: Abdull & Another v Cloete NO & Others [1998] 3 BLLR (LC) at para [9] where the Labour reviewed an arbitration award and found it was incomprehensible and self-contradictory).’

[19]

The commissioner made an error, thereby committing a gross irregularity, when he concluded that the applicant was afforded an opportunity to respond to the allegations against him. Such a conclusion is not supported by the guidelines contained in the Code.

[20]

Item 4(1) of the Code states:

‘Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employer can reasonably understand. The employee should be entitled to a reasonable time to prepare a response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with a written notification of the decision’.

[21] From this perspective, the commissioner erred thereby committing a gross misconduct in finding that the procedure followed was fair, for the applicant was not given a fair hearing or opportunity to state his case.

[22]

In light of the above reasons, in my view, the decision reached by the commissioner is not one that a reasonable decision-maker could reach.

[23] Having considered all the material placed before the commissioner, I am not in as good a position as the commissioner to decide the matter.

[24] I, accordingly, make the following order:

(a) The arbitration award issued by the third respondent is reviewed and set aside;

(b) The dispute is remitted to the second respondent for resolution by a commissioner other that the third respondent; and

(c) The first respondent to pay the applicant’s costs.

___________________

Mthombeni AJ

Acting Judge of the Labour Court

APPEARANCES:

FOR THE APPLICANT:

In Person

FOR THE FIRST RESPONDENT: S Mosomane

Instructed by Medupi Lehong Incorporated