About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2021
>>
[2021] ZALAC 49
|
|
Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA12/2020) [2021] ZALAC 49; [2022] 3 BLLR 296 (LAC); (2022) 43 ILJ 839 (LAC) (10 December 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
No: PA12/2020
WOOLWORTHS
(PTY)
LTD Appellant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND
ARBITRATION First
Respondent
COMMISSIONER
FREDERICK SAULS Second
Respondent
BRIAN
HILTON
ALEXANDER Third
Respondent
Heard:
03 November 2021
Delivered:
10 December 2021
Coram:
Waglay JP, Davis JA and Savage
AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
When
does attendance at a rugby match trigger a dismissal from employment?
This case turns on an answer to that question. On the
morning of 9
June 2018, the third respondent advised one of the appellant’s
managers that he had taken ill and that he would
not be attending
work on that day. It turned out that on that very day, that the third
respondent claimed to be ill, he and his
father travelled for at
least an hour from Jeffreys Bay, where he resided to Port Elizabeth
to attend a rugby match. It is instructive
to note, that had he left
his home and attended to his employment responsibilities, the trip
would have taken 20 minutes.
[2]
When
he returned to work for his next shift, his manager Mr Jonel Krige
enquired as to where the third respondent had been on the
previous
day. He responded, that although he was not well, , he returned to
work, ,on the previous day (9 June) he had attended
a rugby match.
[3]
Pursuant
thereto, the appellant investigated the circumstances of the third
respondent’s disappearance from work, and following
thereon
instituted a disciplinary enquiry against the third respondent based
on the following charge:
‘
Gross
misconduct in that on 9
th
June 2018 you breached company policies and procedures when you
abused authorised leave in the form of sick leave when you informed
your manager that you were unable to report for your scheduled shift
but was observed at an extended function in Port Elizabeth.
This could have resulted in your claiming wages to which you were not
entitled to in the form of sick leave if this was not picked
up.’
[4]
The
third respondent was found guilty of the charge and dismissed. He
then referred an unfair dismissal dispute to the first respondent
which was arbitrated by the second respondent who issued an award in
which he found the dismissal substantively and procedurally
unfair.
[5]
After
considering the testimony of both the appellant and the third
respondent, the second respondent found that the third respondent
had
not sought to hide the fact that he had attended a rugby match, that
there was no evidence that he had previously been given
a written or
final warning. Further the appellant had not charged him for
dishonesty and thus the employment relationship had not
yet broken
down. The second respondent therefore concluded that the dismissal
was unfair and ordered the appellant to reinstate
the third
respondent retrospectively with effect from 18 February 2019. It is
against these findings that the appellant applied
to set aside this
award on review before the court
a
quo
.
The court
a quo
[6]
Although
Lallie J held that the second respondent had erred in finding the
dismissal procedurally unfair, the learned judge found
that the
dismissal was substantively unfair. Following the approach adopted by
the second respondent, Lallie J said:
‘
When the
evidence which was led at arbitration is considered in its totality
it proves that the commissioner considered whether
the third
respondent acted dishonesty. He found that he did not. He based his
finding on the applicant’s failure to tender
admissible
evidence proving the dishonesty as well as the absence of a policy
which required the third respondent to report for
duty when his
condition had improved. The error therefore had no distorting effect
on his decision.
The commissioner
considered the applicant’s evidence that the third respondent
should have gone to work when he felt better
instead of attending a
rugby match. He rejected it on the grounds that the applicant
submitted no policy of what an employee who
had been booked medically
unfit to work was not entitled to do when not at work. He added that
the contention by the line manager,
that if a person was sick such
person was expected to stay at home, appeared to be her personal
view.
’
[7]
In
the view of the learned judge, the finding of the second respondent
that the dismissal was substantively unfair could not be
set aside
because the appellant had not proved that the second respondent’s
decision was unreasonable. With the leave of
this court, the
appellant has approached this court on appeal against this order.
The appeal
[8]
It
is important to emphasise that the charge brought by the appellant
against the third respondent was on the basis of gross misconduct
in
that he had ‘breached company policies and procedures when he
abused authorised leave in the form of sick leave.’
[9]
There
was little dispute about the dishonesty of the third respondent’s
action. Indeed, he confirmed that his action was dishonest.
The
following extract from his evidence illustrates this luminously.
‘
Respondent
rep: Okay, so when
you made the phone call to say you are sick that would
that mean from
work?
Mr Alexander:
that I am going to be absent
Respondent rep:
and?
Mr Alexander:
that I am not going to be perform (sic).
Respondent rep:
and be paid for the day
Mr Alexander:
come again
Respondent rep:
you will be paid for the day
Mr Alexander:
that I would be paid for the day, yes
Respondent rep:
Okay. Is it honest that we must pay you for the day and also pay
for
the part where you would be at the rugby?
Mr Alexander:
No, I don’t think so’
[10]
It
is also instructive that the third respondent, who was employed as an
end of day controller at the appellant’s stores in
Humansdorp,
accepted that his behaviour could hardly be regarded as setting a
good example for his subordinates.
[11]
Manifestly,
the third respondent acted dishonestly in absenting himself from work
on the basis that he was too ill to perform his
duties but then
travelled for at least an hour to support his local rugby team,
knowing full well that he would be paid for the
day. The finding of
the second respondent that there had been no act of dishonesty is
obviously subject to review, even if the
standard for review were so
onerous that an award could only be set aside on the basis of an
egregious error. This is exactly the
appropriate term to describe the
approach adopted by the second respondent and regrettably it was
repeated by the court
a
quo
.
The question of
dismissal
[12]
The
second respondent ordered the appellant to reinstate the third
respondent retrospectively to the date of dismissal on the terms
and
conditions of employment as applicable to him on that date. The
second respondent reasoned that it was “apparent that
the
conduct and behaviour displayed by the applicant (the third
respondent) was not such, as to make a continued employment
relationship
at the respondent (the appellant) impossible or
untenable.”
[13]
This
lenient approach to dishonesty cannot be countenanced. The third
respondent held a relatively senior position within the organisation
of the appellant at Humansdorp. He was palpably dishonest, even on
his own version. He expected to get away with the enjoyment
of
attendance at a rugby match on the basis of claiming sick leave and
then enjoying the benefits thereof. This is dishonest conduct
of a
kind which clearly negatively impairs upon a relationship of trust
between an employer and employee.
[14]
In
addition, the third respondent had been disciplined on previous
occasions for being absent as well as for coming late. Although
most
of these warnings had expired, the last one expired on 13 August
2018, which was subsequent to the date of the disciplinary
hearing.
[15]
For
the appellant to adopt the approach that the third respondent was
required to act with integrity and abide by the appellant’s
policies, procedures and codes is manifestly justifiable.
[16]
In
the circumstances, it is clear that the relationship of trust as a
result of his initial unreliability and now dishonest conduct
had
broken down. Viewed from the record of this employee, dismissal was
clearly the appropriate sanction.
[17]
This
may be the kind of case envisaged by the Constitutional Court in
Union for Police
Security and Correctional Organisation v South African Custodial
Management (Pty) Ltd and others
2021 (11) BCLR 1249
(CC) where costs should be awarded against the
losing party as a result of egregious conduct. However, given that
the third respondent
would have lost his job and been an individual
applicant involved in litigation with a large company, there will be
no order as
to costs.
[18]
In
the result,
1.
The
appeal is upheld.
2.
The
order of the court a quo of 28 May 2020 is set aside and replaced
with the following order:
‘
The
arbitration award handed down by second respondent under Case Number
ECPE 5477-18 dated 4 February 2019 is reviewed and set
aside and
replaced with the following:
The third respondent was
dismissed both substantively and procedurally fairly.’
3.
There
is no order as to costs.
Davis
JA
Waglay JP and Savage AJA
concur.
APPEARANCES:
FOR
THE APPELLANT:
Macgregor
Erasmus attorneys
FOR
THE THIRD RESPONDENT:
NEL
Mentz Steyn Ellis Inc.