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IN THE LABOUR COURT OF SOUTH AFRICA REPORTABLE

HELD AT JOHANNESBURG

CASE NO.: JR2571/04

In the matter between :

DEBBIE WOZNEY Applicant

and

COMMISSIONER E L E MYHILL

(in his capacity as Commissioner of the CCMA) First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION Second Respondent

LION OF AFRICA INSURANCE Third Respondent

___________________________________________________________________

JUDGMENT DELIVERED ON 23 NOVEMBER 2007

___________________________________________________________________

INTRODUCTION

[1] This is an application in terms of section 145 of the Labour Relations Act 66 of 1995 (“the LRA”) for the review of the award issued by First Respondent on 9 September 2004 pursuant to arbitration proceedings involving Applicant and Third Respondent which were conducted under the auspices of Second Respondent, the Commission for Conciliation, Mediation and Arbitration (“the CCMA”).

[2] The application is opposed by Third Respondent.

BACKGROUND FACTS

[3] The background to the matter is briefly that Applicant was employed by Third Respondent as Assistant Manager : Claims in terms of a written contract of employment dated 29 June 1999. Applicant was dismissed on 30 April 2003 pursuant to disciplinary proceedings concerning her being in possession of and disclosing certain information contained in a salary review schedule which reflected the salaries of 40 of Third Respondent’s employees, including the Chief Executive Officer. Applicant had erroneously received the salary schedule as an attachment to an e-mail. At the end of 2002 or the beginning of 2003 Applicant disclosed to her immediate superior, Mr Britz, that she was in possession of the schedule. Mr Britz requested her not to disclose any information contained in the schedule. Towards the end of the working day on 9 April 2003, Applicant showed the schedule to a co-employee Ms Yvette Clarke in the course of a brief discussion concerning their job appraisals which were scheduled for the following morning. Applicant showed the schedule to Ms Clarke for the purpose of demonstrating that the job grades had no bearing on the actual salaries which information was relevant for purposes of the pending appraisals. Ms Clarke was uncomfortable about Applicant’s possession of the schedule and disclosed this fact to Mr Britz the following morning prior to the appraisals. This eventually resulted in Applicant’s suspension on full pay on 15 April 2003. Applicant received a notice on 17 April 2003 to attend a disciplinary hearing on 25 April 2003. The notice contained the following charges :

“2 The allegations against you are :

a) That on or about 9 April 2003, you breached your contract as contemplated in the Disciplinary Matrix of the Code of Conduct of the Company in that you disclosed to a co-employee the 2003 salary review schedule, which schedule contains information confidential to the Company;

And/or

b) That over the period 2002 and 2003, you were in unlawful possession of Company property as contemplated in the Disciplinary Matrix of the Code of Conduct of the Company, which property was the 2003 salary review schedule in respect of which you did not have permission or authority to be in possession.

And/or

c) That in and during the period November 2002 to February 2003, you failed to obey a lawful and reasonable instruction from your superior regarding the destruction of the 2003 salary review schedule thereby committing the offence of gross insubordination as contemplated in the Disciplinary Matrix of the Code of Conduct of the Company.”

[4] It should be added that the third charge was amended at the subsequent disciplinary hearing to include an averment that Applicant disobeyed an order not to disclose any information in the schedule.

[5] The disciplinary hearing was held on 25 April 2003 which resulted in a recommendation that Applicant’s services be terminated upon one month’s notice. The recommendation was implemented on 30 April 2003 when Applicant was dismissed as indicated above.

[6] Applicant appealed against her dismissal. The appeal was heard on 30 May 2003 and was dismissed on 3 June 2003.

[7] Applicant referred a dispute pursuant to her dismissal to Second Applicant which eventually proceeded to arbitration before First Respondent. Only the substantive fairness of Applicant’s dismissal was placed in dispute at the arbitration. The procedural fairness of Applicant’s dismissal was conceded. The relief that Applicant sought was the payment of compensation. Applicant testified at the arbitration while Third Respondent presented the evidence of Mr Britz, Ms Yvette Clarke and Ms Maureen Dlamini who was the Head of Human Resources at Third Respondent.

PRINCIPAL DEFENCE

[8] Mr Hinds, who appeared on behalf of Applicant at both the arbitration and review application, submitted that Third Respondent failed to prove its case against the Applicant, since it was common cause that Applicant was in possession of a document entitled “Lion of Africa July 2002 increases” whereas the charges related to the “2003 salary review schedule”. First Respondent considered this argument and correctly in my view rejected it on the basis that there was no dispute concerning the actual document that was in Applicant’s possession in spite of its title. It is convenient to deal with count 2 first before considering the remaining two counts.

SECOND CHARGE

[9] This charge related to the alleged unlawful possession of company property. It was not in contention that Third Respondent had failed to establish that Mr Britz had in fact given Applicant an instruction to destroy the salary schedule although he was aware that it was in her possession. In those circumstances Applicant has obviously not been in unlawful possession of the salary schedule and she should accordingly have been acquitted on the second charge relating to the unlawful possession of company property. A conviction on this count warranted a dismissal for a first offence in accordance with the Disciplinary Matrix of Third Respondent’s Code of Conduct. In my view First Respondent accordingly erred in finding that Third Respondent had established the second charge against Applicant.

FIRST CHARGE

[10] Insofar as the first charge is concerned (breach of contract) clause 10 of Applicant’s employment contract provides as follows :

“10. CONFIDENTIALITY/COPYRIGHT

You will be employed in a position of trust and are required to treat as confidential all information relating to the Company’s and Client’s affairs. In addition, you will be required to assign to the Company the Copyright in respect of all works of which you are the author or joint author and which are directly or indirectly the product of your employment by or association with the Company.

Any breach of these conditions will be considered grounds for immediate dismissal.”

[11] The disciplinary matrix indicates that dismissal is a warranted sanction for a first offence of breach of contract.

[12] If regard is had to the testimony presented at the arbitration it is clear that both Applicant and Ms Clarke confirmed that Applicant’s purpose in showing the schedule to Ms Clarke was to illustrate the point that the job grades had no bearing on actual salaries being paid which fact would be relevant for the pending appraisals. It is also clear from the evidence of Mr Britz that this fact was not confidential. This is also reflected in the testimony of Ms Clarke. Applicant’s conduct accordingly did not amount to a breach of contract. It follows that there was no basis for convicting Applicant on the first charge. First Respondent accordingly erred in my view in finding that Third Respondent had established this charge against Applicant.

[13] In any event, in my view counts 1 and 3 amounted to an unfair splitting or duplication of charges in that the gravamen of both counts was that Applicant had disclosed certain information contained in the salary schedule. It is also clear that the thrust of Third Respondent’s complaint in this regard was that the disclosure had occurred contrary to the express instruction of Mr Britz. This complaint is encapsulated in count 3 which could in the circumstances justifiably have been brought against Applicant. It was not reasonable or justifiable additionally to have brought count 1 against Applicant (cf Ntshangane v Speciality Metals CC (1998) 19 ILJ 584 (LC) paras 16-18; John Grogan Workplace Law (8^th ed.) p. 194 para 5.5).

THIRD CHARGE

[14] Insofar as the third charge (as amended) is concerned it is readily apparent from the evidence that Applicant clearly acted in breach of the express instruction of Mr Britz not to disclose any information contained in the salary schedule. It was common cause that Mr Britz had in fact given this instruction to Applicant (as opposed to an instruction to destroy the salary schedule) and that she had acted in breach thereof by showing the salary schedule to Ms Clarke. Applicant has accordingly been properly convicted on count 3 for gross insubordination. In terms of the disciplinary matrix a final written warning is warranted for a first offence in this regard. First Respondent correctly found that count 3 had been established against the Applicant, but erred in effectively upholding the sanction of dismissal. In my view the proper sanction in this regard was a final written warning.

EVALUATION

[15] The test to be applied in review proceedings has recently been restated by the Constitutional Court in the matter of Sidumo & Another v Rustenburg Platinum Mines (Pty) Ltd and Others case number CCT85/07 dated 5 October 2007. The Constitutional Court in that matter held that the constitutional standard of reasonableness suffuses the grounds of review set out in section 145 of the LRA. The proper test which accordingly has to be applied is whether the decision of the arbitrator is one which a reasonable decision-maker could not reach.

[16] Having considered the matter and applying the aforesaid test, I am of the view that the award of First Respondent must be reviewed and set aside for the reasons set out above. First Respondent’s decision is one, which in the circumstances, a reasonable decision-maker could not reach.

[17] In my view this is a matter where it is appropriate to substitute the award rather than to refer the matter back to Second Respondent for a hearing de novo. It is clear in the circumstances that Applicant’s convictions on counts 1 and 2 should have been set aside and her conviction on count 3 confirmed. Moreover, the sanction of dismissal should have been set aside and substituted with a final written warning. It also follows that Applicant’s dismissal was substantively unfair. There has already been considerable delays in this matter which originated in 2003. It will be prejudicial to both Applicant and Third Respondent for any further delays to be occasioned in this matter. No useful purpose would accordingly be served by referring the matter back.

CONCLUSION

[19] Applicant does not wish to be reinstated but is seeking compensation. In my view, the compensation awarded in the order that follows is just and equitable in all the circumstances of the case.

[20] I accordingly make the following order :

(a) The award of First Respondent dated 9 September 2004 is reviewed and set aside;

(b) Applicant’s dismissal on 30 April 2003 was substantively unfair;

(c) Third Respondent is ordered to pay compensation to Applicant in the equivalent of 6 months remuneration calculated at Applicant’s rate of remuneration on the date of dismissal being 30 April 2003;

(d) Third Respondent is ordered to pay Applicant’s costs.

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DENZIL POTGIETER, A.J.

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