AFGEN (Pty) Ltd v Ziqubu (JA34/18) [2019] ZALAC 40 (13 June 2019)
The conduct of the employee and the close working relationship required by the position in question, play a crucial role in determining whether a continued employment relationship would be intolerable in terms of section 193(2)(b) of the LRA, thereby making reinstatement or re-employment inappropriate.
Facts:
At the CCMA there was unchallenged evidence that the employee seldom if at all reported back to her superior as she was required to do; did not take her seriously and bypassed her totally; did not respect her as her superior; did not adhere to instructions given to her; was generally rude; did not have a good working relationship with her; did not respond to her emails; allowed her work to fall behind in an unacceptable manner; and had received a number of verbal warnings and reprimands for her behaviour, yet this did not improve things at all in that the employee simply ignored these.
Despite this background, there was unsatisfactory evidence on the actual disciplinary charges and the CCMA Commissioner found the dismissal of an employee substantively unfair but refused reinstatement and awarded the employee 3 months' salary as compensation.
On review, the Labour Court substituted the award with an order that the employer reinstates the employee and compensates her with 24 months' salary.
On appeal, Labour Appeal Court overturned the LC judgment. The LAC accepted that because the employee's dismissal was found to be substantively unfair, there has to be extraordinary reason to deviate from the standard remedies of reinstatement or re-employment under s193 (1), and the conduct of the employee plays a crucial role in this regard. The LAC found that the employment relationship in this case was dependent on the employee and her superior working closely together. As there was clear evidence that they would be unable to work together, to reinstate the employee into her position would be totally inappropriate. The LAC concluded that the Commissioner's decision that it was inappropriate to reinstate the employee could not be faulted. Dealing with the employer's appeal against the increase in compensation by the LC for 3 months to 24 months, the LAC held that while it was correct that the employee was only employed for over 12 months, it cannot be said that she was not entitled to the maximum compensation that the law permits. Section 194 of the LRA provides for compensation up to a maximum of 12 months' salary to be awarded and the LAC saw no reason why this should not be awarded to the employee. The LAC failed to understand the rationale behind the Commissioner only granting the employee 3 months' compensation.
Extract from the judgment:
Waglay JP:
[22] Having found that the dismissal of the respondent was substantively unfair, the Commissioner was mindful that the primary remedy he was required to award the respondent was that of reinstatement because that is what she sought. This was what section 193 of the Labour Relations Act 66 of 1995 obliges a Commissioner to do unless the exceptions contained in section 193 subsections 2(b) and (c) come into play. S193 (2) (b) and (c) provides:
- 'The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless -
- ...
- the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
- it is not reasonably practicable for the employer to reinstate or re-employ the employee;' [emphasis added]
[24] In my view, there was no reason to take into account the final written warning which was issued almost at the same time as the respondent was dismissed.
[25] The primary issue is that because the respondent's dismissal was found to be substantively unfair she was entitled, in terms of s193(1)(a), to reinstatement or to re-employment in terms of 193 (1)(b). There has to be extraordinary reason to deviate from such relief and only so if s193(2) comes into play. The conduct of the employee plays a crucial role where reinstatement or re-employment is refused notwithstanding there being no grounds for dismissal. Thus for example in the matter of Edwin Maepe v CCMA and Another although the employee's dismissal was found to be unfair, this Court refused to reinstate him because it found it was impracticable for the employee to reinstate or re-employ Mr. Maepe who given false testimony under oath. Mr. Maepe was employed as a Commissioner at the CCMA and was required to arbitrate disputes and consider evidence presented to him under oath; having displayed total disregard for truthful testimony he could, this Court held, not be fit to continue as a Commissioner of the CCMA.
[26] The other relevant matter is that of Glencore Holdings (Pty) Ltd and Another v Gagi Joseph Sibeko and Others (Glencore) where the Court properly accepted that an employee's behaviour can be taken into account to determine if reinstatement or re-employment must be awarded, more particularly where an employee behaved offensively against the employer. Whether the bad behaviour was pre- or post dismissal is irrelevant. This Court in Glencore stated that an employee's behaviour no matter how abominable, cannot automatically deny her/him an award of reinstatement or re-employment. Consideration should be given to the degree of relationship contact between the employee and his superior. The lack of a "functional role" performed by the employee in Glencore including the lack of "functional rapport with the superiors" meant that they could be no real obstacle in the continued employment of the employee by Glencore notwithstanding the employee's abominable behaviour.
[27] In this matter, the respondent dealt with the accounts of the appellant's customers. She fell directly under the supervision of Ms Wostmann with who she was required to interact on daily basis; from whom she had to take instruction; and, to who she must report on all and every issue. Yet she refused to do so. The unchallenged evidence of Ms Wostmann was that the respondent:
'seldom if at all reported back to her as she was required to do;[28] Added to this respondent's own admission was that there was no relationship between her and the appellant. In fact, at the very beginning of the disciplinary hearing, the respondent's union representative stated to the chairperson of the hearing that no relationship exists between the respondent and the appellant's management.
did not take her seriously and bypassed her totally;
did not respect her as her superior;
did not report back to her as was required in her contract of employment;
did not adhere to instructions given to her;
was generally rude;
did not have a good working relationship with her;
did not respond to her emails;
allowed her work to fall behind in an unacceptable manner;
had received a number of verbal warnings and reprimands for her behaviour yet this did not improve things at all in that the respondent simply ignored these;
generally ignored her instructions.
[29] This is not a case where there is a distant relationship between the employee and those in authority over her. In fact, the relationship is dependent on the respondent and her superior working closely together and in the absence of this relationship to reinstate the respondent into her position would be totally inappropriate and this is compounded by the fact that the respondent was in fact only in appellant's employ for a period of just over a year.
[30] In the circumstances, I am satisfied that the Commissioner's decision that it was inappropriate to reinstate the employee cannot be faulted.
[31] Turning then to the issue of compensation, this is a matter where the respondent's dismissal is found to be substantively unfair and while it is correct that the respondent was only employed for over 12 months it cannot be said that she is not entitled to the maximum compensation that the law permits.
[32] Section 194 of the LRA provides for compensation up to a maximum of 12 months' salary to be awarded. I see no reason why this should not be awarded to the respondent. I fail to understand the rationale behind the Commissioner only granting the respondent three months' compensation, this in my view, cannot be reasonable.
[33] In view of my finding above, there is no need to deal with the cross-appeal.
[34] ...
[42] In the result, I make the following order:
- The late filing of the notice of appeal and cross-appeal is condoned.
- The appeal is upheld with no order as to costs.
- The order of the Labour Court is substituted as follows:
- The aforesaid amount must be paid on or before 30 June 2019.
- The cross-appeal is dismissed
- The application for recusal is refused.
'The arbitration award under CCMA case no GAJB 29210-11 is set aside only in respect of compensation awarded. The employer (respondent) must pay the Employee (applicant) the sum of R 78 432 being the amount the applicant would have earned over a 12 months' period in respondent's employ.'