University of South Africa v Matji NO and Others (JR 122/12) [2013] ZALCJHB 236 (13 August 2013)

Not Reportable

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

case no: JR 122/12

In the matter between:

UNIVERSITY OF SOUTH AFRICA ............................................................................Applicant

and

MATJI, KD N.O. ............................................................................................First Respondent

COMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION ..........................................................Second Respondent

NATIONAL EDUCATION HEALTH

AND ALLIED WORKERS UNION ...............................................................Third Respondent

MOOLA, IM ...............................................................................................Fourth Respondent

Heard: 10 May 2013

Delivered: 13 August 2013

Summary: Review and cross review; Arbitrator applying a patently incorrect test regarding the misconduct; Application granted and

matter referred back to be heard de novo.

GUSH J

In this matter, the applicant applies to review and set aside an award handed down by the first respondent to the effect that ‘[t]he incapacity dismissal of the applicant Mohammed Iqbal Moolla, was substantively unfair but procedurally fair’ and an order that the applicant pays the fourth respondent compensation in an amount of R540,000.

The third and fourth respondents, too, seek to review and set aside that part of the award in which the fourth respondent is awarded compensation and that it be substituted with an award that the fourth respondent be retrospectively reinstated.

The fourth respondent, having filed his cross review some five and a half months late, in addition applies for condonation for the late filing of his application.

At the outset, the parties were ad idem that in the event of the applicant succeeding with its application, the fourth respondent’s application for condonation and review of the award would fall away.

It must be said that in respect of the fourth respondent’s application for condonation, his reasons for the late filing of the application are particularly poor. Not only has the fourth respondent failed to account adequately or at all for the delays his explanation is unconvincing.

The pleadings and the record filed by both parties in this matter were so devoid of order and logic that the reading thereof was made extremely difficult. The preparation of the file is characterised by an absence of indexes, random numbering, deconstructed bundles and unidentified documents.

Suffice to say that it was possible to discern the essence of the matter, despite the manner in which the pleadings and the record

were filed. The background and the issue in question are relatively straightforward. For reasons that will become clearer later it is not necessary and I do not intend to summarise the background in great detail.

The fourth respondent was employed by the applicant in January 2003 and was dismissed by the applicant for poor work performance on 18 March 2011. At the time of his dismissal, the applicant was a Senior Information Systems Auditor.

Over a relatively extended period, prior to his dismissal, the fourth respondent received a number of poor performance reviews. The culmination of the poor performance reviews resulted in the applicant issuing the fourth respondent with a notice to attend the hearing concerning his poor work performance. At the conclusion of this hearing, the fourth respondent was dismissed.

Dissatisfied with his dismissal, the fourth respondent referred a dispute to the second respondent who in turn, after conciliation,

appointed the first respondent to arbitrate the dispute.

The applicant’s employees contract of employment in the internal audit department where the fourth respondent was employed,

are subject to compliance with a performance agreement that sets out the agreed performance standards and targets. The employee’s

performance is then assessed against this performance agreement.

The first respondent was required to determine whether the dismissal of the fourth respondent was substantively and procedurally fair. At the conclusion of the hearing, the first respondent found the dismissal to be procedurally fair but substantively unfair and awarded the fourth respondent compensation in an amount of R540,000 being the equivalent of 12 months remuneration, despite the fourth respondent seeking reinstatement..

After having found that the fourth respondent’s dismissal was procedurally fair, the first respondent, in his award, proceeded to consider the substantive fairness thereof. In analysing the evidence relating to the substantive fairness, the first respondent considers at length the various assessment reports produced from time to time regarding the fourth respondent’s performance. It also appears from the record of the evidence at the arbitration that these performance reviews, understandably, not only dealt with the performance leading up to the date of the review but also what procedure the applicant would follow in the future should there be no or insufficient improvement in the fourth respondent performance. It is clear from the evidence and documentation produced at the disciplinary enquiry and arbitration by the applicant that the fourth respondent’s performance was indeed lacking.

The first respondent however, despite taking these performance reviews into account comes to the following inexplicable conclusion:

‘the performance review process that the applicant was subjected to for a period of four months from March 2009 until August 2009 was nothing more than a monitoring exercise. The work performance standards or objectives of the parties agreed upon and the applicant’s

performance was monitored based on those performance standards. The emphasis seem to have been more on the time schedule set for the achievement of those moments standards and objectives.’1

It is also clear from the evidence adduced by the applicant that an important element taken correctly taken into account by the

applicant during the review process was the applicant’s position as a “senior managerial employee”. This

evidence does not appear to have been challenged during the arbitration. In fact, during argument, counsel for both the applicant and fourth respondent agreed that the applicant was indeed a “senior managerial employee”. Despite this, the first

respondent seemingly oblivious to the evidence records the following:

‘Much emphasis was laid on the fact that the applicant was a senior employee.... It is true that in Somyo v Ross Poultry Breeders (Pty) Ltd (1997) (LAC) it was held that the normal requirements for dismissal for poor work performance may not apply in the case of a manager and senior employee whose knowledge and experience qualify him to judge for himself whether he is meeting the standards set by the employer.

The applicant was not a senior managerial employee but was only a senior information systems auditor. There was a director and an executive director of its position to him he reported. The audit reports the applicant worked on were to be approved and signed up by the executive director. Therefore clearly, could not be said that the applicant was a senior employee who operated independently as his work was subject to approval by the superiors.’2

It is clear that by disregarding the standard applied by the applicant to senior managerial employees in assessing the fourth

respondent’s performance, the first respondent “misconducted” himself in a manner justifying the setting aside of the award.

A further irregularity in the first respondent’s award can be found in his concluding paragraph where it is stated:

‘Even though I found the dismissal applicant to have been grossly unfair due to the lack of sufficient evidence to prove that after the final performance review meeting his performance declined, it will be a travesty of justice order reinstatement in the same department. It was clear to me that there was bad blood between the applicant and his head of department. The insinuation by the head of Department that the applicant was so worthless that could not even perform the level of the junior auditor despite his qualifications and experience was indicative to me of the extent of the hostilities between the two individuals. Therefore clearly, the appropriate relief in the circumstances will be compensation.3

It is difficult to understand the basis, having found that the fourth respondent’s dismissal was "grossly unfair",

the first respondent was satisfied to that it was appropriate to order compensation and not reinstatement, viz that there was bad blood” between the individuals”.

The applicant urged the court not only to set aside the award but to substitute it with a finding that the dismissal was both

substantively and procedurally fair. The fourth respondent in his cross review sought to have that part of the first respondent’s

award dealing with compensation set aside and substituted with an order retrospectively reinstating the fourth respondent.

In this regard, while I am satisfied that the fourth respondent has failed to reasonably justify the late filing of his cross review and that accordingly his application for condonation must fail, the effect of granting the applicant’s application has the effect of setting aside the entire award.

As regards substituting the award of the first respondent, I am mindful of the fact that the dismissal took place sometime ago.

However, I am equally mindful that it is the role an arbitrator to consider the appropriateness of the sanction of dismissal should it be found (as is likely) that the fourth respondent was guilty of poor performance. These are issues that the arbitrator must deal with.

As regards costs, I am not satisfied that a cost order in this matter is appropriate.

In the circumstances, and taking into account the above, I make the following order:

the fourth respondent application for condonation for the late filing of his cross review is dismissed;

the applicant’s application to review and set aside the first respondent’s award is granted and the matter is referred back to the second respondent to be arbitrated de novo before a Commissioner other than the first respondent;

there is no order as to costs.

_______________________

D H Gush

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT: A. L. Cook.

Instructed by Brian Blignaut Attorneys

THIRD and FOURTH

RESPONDENT: A Mosam

Instructed by Cheadle Thompson Haysom

1Award paragraph 62

2Award paragraphs 64 and 65

3Award paragraph 75