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Verity v University of the Witswatersrand (JS319/2006) [2009] ZALC 37; [2009] 8 BLLR 838 (LC) (17 April 2009)

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3. The referral was opposed by the respondent on the basis that the applicant was dismissed for misconduct relating to poor time keeping. It denied that the applicant’s dismissal was automatically unfair.

The evidence led

4. The applicant commenced employment with the respondent on 1 April 1997. She was interviewed by Henry Watermeyer (Watermeyer) who was the head of the department of the Central Networking Services (CNS). She entered into a written contract of employment (the contract) with the respondent. Clause 5 of the contract deals with the Hours of Work and provides as follows:

“5. Hours of Work

5.1 The hours of work will be as laid down by the Council from time to time and must be adhered to by the member or major - time member save where and in the manner permitted by the Council.

5.2 Members: Normal working hours each day from Monday to Friday are 8.5 hours per day including an hour each day for lunch, that is, from 8:00 to 16:30 or 8:30 to 17:00. These hours are subject to alteration at the Councils discretion. The exact starting and finishing times will be laid down by Heads of Departments. A member working in the Security Division, Division of Catering Services, Building Care, Central Animal Service or one of the University’s residences may be required to work shifts and unsocial hours as and when determined by the Head of Department or Warden as the case may be.

Members in the Senior Division may be required to devote additional time to their duties outside of normal working hours for which they will not normally receive additional remuneration.”

5. The applicant had agreed with Watermeyer that her starting times would be from 8h30 to 17h00 and if there was a need for her to come in earlier she would do so. Watermeyer was replaced by Mavis Margaret Constable (Constable) as the head of department in October 2004. The applicant was her personal assistant/secretary. Constable did not regard the applicant’s working hours of 8h30 to 17h00 as a suitable arrangement. Her meetings would start at 8h30 and if the applicant arrived at 8h30 she could not prepare for the meetings and she had to answer telephone calls. Constable could not give her instructions if she arrived at 8h30. If she arrived at 8h00 she would be able to prepare for the meetings on time. Constable arrived early at work and needed her personal assistant to answer her calls and to prepare for meetings. She would have been able to brief her on what had to be done whilst she was at work so there was a requirement for her to start working at 08h00. There was according to Constable an operational requirement for the applicant to start at 8h00. A number of systems were not working well. They would crash the previous night and calls were made from 08h00 about it and these calls had to be attended to. The applicant was required to answer those calls and be briefed on her daily chores.

6. The applicant’s time keeping was totally unacceptable since she commenced employment with the respondent. This was even before she was diagnosed in 2003 with breast cancer. Watermeyer had already in his assessment report dated 20 March 1998 whilst she was on probation highlighted this. This again was highlighted in a report dated 28 June 2002. Watermeyer had several meetings with her about her lack of punctuality but this did not improve. After Constable took over she had several meetings with the applicant about her punctuality. Various reasons were given for that namely problems at home, the transport problem from the Westrand where the applicant lived, and later her illness related to her breast cancer and the treatment that she was receiving. Constable in October 2003 had discussed several issues with the applicant relating to time keeping, her prolonged absence from the work station and her lengthy telephone conversations. A further meeting took place between Constable and the applicant on 6 May 2004 relating to her time keeping. The applicant was threatened with disciplinary action if her time keeping did not improve according to the letter dated 6 May 2004. Constable had told her several times why it was important for her to be at work by 8h30. This did not improve. The ideal was for her to start at 8h00. Constable approached industrial relations and human resources for advice about her starting times. She was informed that she as the head of department could ask the applicant to start at 8h00 and finish at 16h30.

7. Constable spoke with the applicant in early 2005 about improving her starting times. She wrote to her on 12 April 2005 that it was necessary for her to start work at 8h00. The applicant was informed that a number of meetings started early and it was also good to be well on top of the day by 8h30. Numerous calls came in soon after 8h00 and it was necessary for the secretary to be there to handle them. Some CNS meetings started at 8h00 or 8h30 and the venue had to be set up before the meetings commenced. The important office hours for this position according to Constable are between 8h00 and 16h00. Constable raised other issues with the applicant. She was given two weeks to improve. There was still no improvement. Constable approached HR and IR for advice. A meeting was set up for 5 May 2005. It was attended by two representatives of IR, the applicant and her union representative and Constable. They used the letter that Constable had written to her. They went through each point and the applicant was given an opportunity to respond to it. The applicant agreed to deal with the other issues but said that she would not come to work before 8h30. The applicant was put on terms about her late coming. It was made clear to her that she would be charged with insubordination. Constable agreed that she would talk to the applicant after the meeting.

8. The follow up meeting took place between the applicant and Constable in May 2005. The applicant testified that her memory about that meeting was vague. She for some reason did not refer to that meeting in her pleadings. The respondent’s version is that Constable discussed clearly that she had to start at 8h00 and the applicant said that she could not make it at 8h00. Constable made a concession that she arrived at her desk at 8h15 so that she could be briefed. According to Constable, the applicant agreed and a letter was sent to her on 10 May 2005 confirming the outcome of the meeting. The letter reads as follows:

“10 May 2005

Re: Outcomes of meeting with HR and IR

Dear Carol

This is to confirm the outcome of the meeting you’re requested with HR and IR.

We discussed my request that you start work at 8am and finish at 4.30pm. After some discussion and clarification of your conditions of employment from Sue Smailes, we agreed that you and I would meet and discuss your working hours so that you may meet the requirements of your position.

Subsequent to that meeting, I confirm that you and I did meet and that I asked that you start work at 8.15am each morning and finish at 4.45 pm, except for the mornings when meetings are scheduled in SH1070 for an earlier start. We agreed that for these occasions, you would start earlier to ensure that the meeting room was opened and prepared for use.

It was agreed that we would monitor your start times starting on Monday 9 May.

Regards

May Miller

Director, Computer and Network Services”

9. Constable maintained that an agreement was concluded. The applicant continued arriving late at work despite been spoken to. This continued until February 2006 when the applicant was informed that the matter would have to be taken forward. A letter was sent on 16 January 2006 about her lateness. She was informed that her lateness would not be tolerated which was since October 2004. She was informed that she had been spoken to and a case of insubordination would be made against her. She was informed that she was required to be in the office at 8h15 for various reasons. Her lateness had been 100%. The applicant continued arriving late. A disciplinary hearing ensued. She was informed on 7 March 2006 that she would have to appear at a disciplinary hearing on 14 March 2006. She was informed that she was guilty of breach of contract and/or gross insubordination and/or failure to obey a lawful instruction in that her time-keeping had been consistently unacceptable despite numerous attempts from the director of CNS - Constable and the deputy director of CNS - Brett Burchel to address her time-keeping problems with her.

10. The applicant appeared at a disciplinary hearing on 14 March 2006. She was represented and was found guilty of all the charges. She was dismissed. She had provided various reasons why she had arrived late at work. It is for purposes of this judgment not necessary to repeat those. She referred and unfair dismissal dispute to the CCMA.

The issues for determination

11. The applicant contended that her dismissal was automatically unfair in terms of section 187(1)(c) of the Labour Relations Act 66 of 1995 (the Act) in that the respondent had changed her commencement time from 8h30 to 8h00 without having negotiated this with her. The real reason for her dismissal according to the applicant was her refusal to accept a change in her commencement time which dismissal is automatically unfair. It was pleaded in the alternative that if the court found that her dismissal was linked to her poor timekeeping and not the change in her starting time, her dismissal was automatically unfair in accordance with section 187(1)(c) of the Act when considering the fact that the respondent unilaterally changed her contract of employment by changing the time-keeping from an alleged minor offence to a serious offence equivalent to breach of contract. The applicant contended in the further alternative that her dismissal for poor time keeping was substantively and procedurally unfair.

Analysis of the evidence and arguments raised

12. I do not deem it necessary to deal with the issue of poor time keeping since this is a matter that will have to be decided by a commissioner of the CCMA. This judgment is confined to the issue of whether the dismissal was automatically unfair or not.

13. The applicant contends that her dismissal was automatically unfair in terms of section 187(1)(c) of the Act in that the respondent had unilaterally changed her contract of employment by changing her commencement time from 8h30 to 8h00. Section 187(1)(c) of the Act provides that a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and the employee.

14. The applicant conceded that should this Court finds that the head of department of CNS in this case Constable, could set the starting and finishing times of the applicant or that an agreement was concluded between the respondent and the applicant at its May 2005 meeting, than the automatic unfair dismissal claim should be dismissed.

15. It is common cause that the applicant entered into a contract of employment in terms of which it is stated that her hours of work are 8.5 hours. Her starting times could be between 8h00 to 16h30 or 8h30 and 17h00. It provides further that the head of department could determine the starting times. It is clear from the evidence led that the applicant’s first head of department had agreed that her hours of work would be 8h30 to 17h00. When Constable was appointed, she wanted the applicant to change her starting times to 8h00 to 16h30. The applicant refused despite the fact that she was advised by her union representative to agree to those starting times.

16. Clause 5.2 of the contract states that the exact starting and finishing times will be laid down by heads of departments. The applicant’s case is that her starting and finishing times were laid down by her previous head of department, Watermeyer. This was not disputed by the respondent but it was contended that a new head of department could determine what the starting and finishing times would be. It was contended that this would depend on the operational requirements of the respondent.

17. I do not deem it necessary to decide whether the new head of department could lay down what the starting and finishing times are or whether the conditions of employment makes provision for this without an agreement being concluded with the employee. The respondent was desirous of getting the applicant to agree to working from 8h00 to 16h30. These attempts failed. A meeting took place a day or so before 9 May 2005 which according to the respondent led to the applicant agreeing to start working at 8h15. The crucial witness who testified about this was Constable. She testified that after the applicant had refused to agree to start working at 8h00 at the 5 May 2005 meeting, she requested to meet with her. They met and the applicant as a compromise agreed to start working at 8h15. She confirmed this in her letter of 10 May 2005. The contents of the letter were criticised and it was suggested to the respondent that the letter did not record that an agreement was concluded. It would at first blushes appear that the letter does not reflect an agreement. Upon closer perusal of the letter, it is clear that an agreement was concluded. I say so for the following reasons. The applicant had responded to the issue of 8h15 in her letter dated 1 August 2005 where she stated “ due to fact that to get to work by 08h15 I have to leave home before 07h00 in the morning”. This suggests that there was a discussion about starting at 08h15. She would not have referred to this if there was no such discussion. There is also the direct evidence of Constable who testified that such an agreement was concluded. The relevant part of the respondent’s letter stated that subsequent to that meeting, she confirmed that they met and that she had asked that he start work at 8h15 each morning and finish at 16h45, except for the mornings when meetings were scheduled in SH1070 for an earlier start. They agreed that for those occasions, she would start earlier to ensure that the meeting room was opened and prepared for use. It was agreed that they would monitor her start times starting on Monday 9 May. The start times referred to in the letter must be 8h15 to 16h45 which was going to be monitored from the Monday. The applicant was extremely vague about what had happened at the meeting. She firstly did not refer to this meeting at all in her pleadings. In examination in chief she said that she met with Constable on 9 May 2005 who told her that it was a requirement to start at 8h00 but she could change it to 8h15 and said that she did not remember it. She said that she told Constable that she could not agree to it. During cross examination when she was asked about it, she said that her memory was vague about it. I am satisfied that the respondent has proven that an agreement was concluded that the starting and finishing times would be 8h15 to 16h45.

19. The applicant is required to place facts before this court that shows that the reason for her dismissal was that she had refused to agree for the respondent to change her conditions of employment. Once she has done this the respondent will have to rebut the onus. Since I have found that an agreement was concluded between the applicant and respondent that her new starting times would be 8h15 to 16H45, she has failed to discharge that onus. There is no substance in the applicant’s first alternative claim which is really tied to her dismissal for poor time keeping.

20. The automatic unfair dismissal claim stands to be dismissed.

21. The parties had requested that I exercise my discretion in terms of section 158(2) of the Act as far as the poor time keeping dismissal is concerned. Section 158(2) provides that if at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the Court may stay the proceedings and refer the dispute to arbitration or with the consent of the parties and if it is expedient to do so, continue with the proceedings with the Court sitting as an arbitrator, in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make.

22. I have carefully considered the submissions made by both parties about deciding the issue of the substantive fairness of the applicant for poor time keeping. It is clear that this court has a discretion to decide whether it would hear the claim for misconduct and if it does so it will be sitting as a commissioner. The decision that will be made is an award and is subject to a review that ultimately will be heard by the review court. A judge of this court will than be reviewed by his peers that is not desirable. The provision of section 158(2) of the Act does not apply to an instance where a party has brought a main claim that falls under the jurisdiction of this Court, loses and now wants to rely on an alternative claim that should have been referred to the CCMA or relevant bargaining council. It applies to an instance where it only becomes clear during the proceedings what the true nature of the dismissal was. It is important for a party who wishes to bring a claim to decide carefully whether he wants to bring it to this court or to the relevant CCMA or bargaining council. Section 158(2) of the Act was not enacted to deal with a situation as in the present case. It does not cover alternative claims that fall under the jurisdiction of the CCMA or bargaining councils.

23. I am aware that labour matters should be dealt with speedily. There is however a duty on an applicant to bring his or her claim to the relevant body and should not be guided by mere expedience. I do not believe that this is a matter where the court should use its discretion to entertain the claim. Nothing prevents the applicant from referring the dispute to the CCMA with the necessary application for condonation. Nothing also prevents the parties from transcribing a record of the proceedings and placing it before a commissioner for determination.

24. The application stands to be dismissed.

25. I do not believe that this is a matter where costs should follow the result.

26. In the circumstances I make the following order:

26.1 The applicant’s dismissal by the respondent was not automatically unfair in terms of section 187(1)(c) of the Act.

26.2 The referral is dismissed.

26.3 There is no order as to costs.

FRANCIS J

JUDGE OF THE LABOUR COURT OF SOUTH AFRICA

FOR APPLICANT: A J GLENDINNING INSTRUCTED BY D J GREYLING ATTORNEYS

FOR RESPONDENT : R CARR OF BOWMAN GILFILLAN INC

DATE OF HEARING: 16,17 & 18 MARCH 2009

DATE OF JUDGMENT: 17 APRIL 2009