Securitas Specialised Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Davis JA, Murphy AJA and Kathree-Setiloane AJA
• Judgment Date: 22 January 2021
• Court: Labour Appeal Court
• Hearing Date: 06 November 2020
• Docket Number: JA 06/2019

Kathree-Setiloane AJA:

[1]

This is an appeal against the judgment and order of the Labour Court (Mahosi J) reviewing and setting aside the arbitration award of the second respondent ("arbitrator") made under the auspices of the first respondent, the Commission for Conciliation, Mediation and Arbitration ("CCMA") in which he found that the employee's dismissal was procedurally and substantively unfair. The appeal lies with leave of this Court.

Background:

[2]

The appellant is a private security company. Prior to his dismissal, Mr Edward Pheme ("employee") was employed as a Contracts Manager by the appellant for a period of sixteen years. His duties comprised providing security services to the appellant's clients and managing a team of security officers who reported directly to him.

[3]

Arising from allegations of misconduct against him that included (a) violence and threats of violence; (b) bringing the appellant's name into disrepute; (c) gross negligence in the performance of his duties; (d) unauthorised absenteeism from the workplace; and (e) failure to follow a lawful and reasonable instruction, the employee was charged and given notice to attend a disciplinary hearing.

2021 JDR 0061 p3

Kathree-Setiloane AJA

[4]

The disciplinary hearing took place on 21 July 2011. The employee sought a postponement as he was unrepresented and needed time to prepare. Ms. Fritz, the chairperson of the inquiry postponed the hearing to 26 July 2011. On resumption of the hearing, the employee arrived with his representative, Mr James Hlatswayo (a union official). Since Mr Hltaswayo was neither a shop-steward or co-worker of the employee, he was not permitted to represent him. The employee, therefore, represented himself at the disciplinary inquiry.

[5]

The appellant called three witnesses to prove the charges of misconduct against the employee. The employee cross-examined these witnesses but refused to testify. Having considered the evidence before her, the chairperson found the employee guilty of misconduct and recommended his dismissal.

[6]

The employee did not appeal the decision and was dismissed by the appellant on 12 August 2011.

The Arbitration Award:

[7]

The employee referred an unfair dismissal dispute to the CCMA. He challenged both the substantive and procedural fairness of his dismissal.

[8]

In relation to the procedural fairness of the dismissal, the arbitrator found that the appellant's refusal to allow Mr Hlatswayo to represent the employee prejudiced him in his ability to present his case. He, accordingly, found the employee's dismissal to be procedurally unfair.

[9]

The primary charge concerned the allegation that the employee, at a counselling session with his Manager, Mr Joel Skosana ("Mr Skosana"), informed him that he (the employee) had entered the workplace with his personal firearm. According to the appellant, this remark was directed at his Divisional Manager, Mr Johan Myburgh ("Mr Myburgh) with whom he had a bad relationship and "could result in a life-threatening situation". In relation to this charge, the arbitrator held as follows:

'There are two mutually destructive versions on this point. The concern I have with the [appellant's] version is that Mr Skosana did not see the firearm, and relies on the word of the [employee], who denies ever making such utterances.

2021 JDR 0061 p4

Kathree-Setiloane AJA

This is a serious contention and Mr Skosana as a Senior Manager had the responsibility to investigate the [employee's] word to establish the truthfulness of the statement. It would be unreasonable to draw adverse inferences from the allegation or the manner in which Mr Skosana claimed to have reacted to the information. The claims he makes in his affidavit that the mention of a gun was a threat directed at Myburgh because of their strange relationship is farfetched in my view . The employee made no threat in my reading of the affidavit. If anything he sought to be transferred away from Myburgh and surely that cannot be construed as a threat. The [appellant] has failed to substantiate this claim in my view. '

[10]

As concerning the charge which related to the employee "bringing the company's name into disrepute" by rendering poor services to a client which resulted in a negative perception of the standard of services which the appellant delivered, the arbitrator found that the employee was expected to visit the clients that he was in charge of once a month, but there were clients whom he had not visited for a period exceeding six months. The arbitrator found the employee's conduct to be unacceptable because he was aware of the service level agreement which required him to host at least one meeting per month with each client, yet he failed to do for a period exceeding six months.

[11]

The employee was also charged with unauthorised absence from the work for failing to: (a) provide the appellant with a sicknote (as per company policy and procedures) for his absence from work on 4, 5, and 11 to 15 July 2011; and (b) follow the instructions of Mr Skosana who directed him to provide a sick note for the days on which he was absent from work. The arbitrator found in relation to the employee's purported failure to produce a sick note for his absence from work on 4 and 5 July 2011, that the appellant had failed to establish this. However, in relation to the employee's alleged failure to provide Mr Skosana with a sick note for his absence from work on 11 to 15 July 2011, the arbitrator found that the employee had transgressed Mr Skosana's instruction to provide him with a sick note. He, nonetheless, found that the reason that the employee advanced for not doing so was reasonable, as he had informed Mr Skosana that he would hand in the sick note on his return to work which he did, but neither Mr Skosana nor Mr Myburgh was prepared to accept it.

2021 JDR 0061 p5

Kathree-Setiloane AJA

[12]

In relation to the charge that the employee was grossly negligent for failing to process internal and external company documents handed to him by his subordinates relating to leave, sick notes, pay queries, loan forms etc, the arbitrator found...