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[2024] ZALCJHB 108
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Zibula v Chrom-Tech Holdings (Pty) Ltd (JR 1725/2021) [2024] ZALCJHB 108 (13 March 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No: JR 1725 / 2021
In
the matter between:
VUSI ZIBULA
Applicant
And
CHROM-TECH
HOLDINGS (PTY) LTD
First
Respondent
SEBAKO A
N.O. Second
Respondent
CCMA Third
Respondent
Heard: 13 March 2024
Delivered:
13 March 2024
EX – TEMPORE
JUDGMENT
NORTON AJ
Introduction
1.
The Applicant seeks to review and set aside the Second Respondent’s
Arbitration Award, dated 28 July 2021, issued
under the auspices of
the CCMA, under case number NWRB 844-21.
2.
The arbitrator found that the dismissal of the employee was
substantively fair.
3.
The arbitrator found that the employee had breached a rule by
embarking on leave which was unauthorised. The employee was
absent
without permission from 26 January 2021 to 19 February 2021.
4.
In the award he writes,
“
There
is only one issue that is placed in dispute which is whether there
has been any breach of the rule. Regrettably the Applicant
did not
submit anything to rescue his case. What is fatal to his case is that
he is the supervisor and disputed the policy of the
Respondent…(The
policy) clearly states that leave must be approved. The Applicant
conceded that he went on leave without
being approved. I find the
Applicant breached the rule
…”
[1]
5.
The arbitrator then refers to the oft cited
De Beer Consolidated
Mines Limited v CCMA and others
, where Judge Conradie says,
“
it
would be in my view difficult for an employer to re-employ an
employee who has shown no remorse, Acknowledgement of wrong doing
is
the first step towards rehabilitation. In the absence of a
recommitment to employer’s workplace values, an employee cannot
hope to re-establish the trust which he himself has broken
…”
The
review challenge
6.
The
Applicant argues that the award should be reviewed and set aside
because the arbitrator was biased, interfered with cross examination,
rushed the legal representative, and was generally rude during the
proceedings.
[2]
7.
Furthermore
the Applicant states that the arbitrators misconstrued the task
before him, and that was not only to ask whether there
had been a
breach of a workplace rule, but also whether a breach warranted
dismissal.
[3]
8.
The Applicant then points to ten years of service, that he had
applied for leave and was told the day before he was to
depart that
it was not granted. He also points to the Covid context in which it
was important to see his wife and family, as he
himself had just come
out of isolation.
9.
Finally the
Applicant argues that he was entitled to annual leave as per the
Basic Conditions of Employment Act, 1997 (the “BCEA”).
[4]
Let me simply put that point to bed by confirming that according to
section 20(10) of the BCEA, annual leave may be taken by agreement
between the employee and the employer, and if not agreement at a time
convenient to the employer. The time the employee wanted
to embark on
leave was not convenient to the employer.
10.
Moving to the other grounds of review I must mention that whilst I
agree with the Applicant that the arbitrator did descend
into the
arena and was abrasive, I do not think that compromised the overall
ventilation of the facts – which were mainly
common cause
between the parties. I too am sympathetic to the Applicant’s
personal family demands.
11.
Ultimately though the facts which clearly showed that the employee
had breached a workplace rule. The enquiry doesn’t
however end
there. The issue then becomes whether dismissal was a fair sanction
for this transgression.
12.
In the
hearing before me, the legal representative argued that the sanction
of dismissal was too harsh noting the mitigatory elements
summarised
above. He pointed me to the case of
Pick
n Pay Retailers v SACCAWU obo Mzazi
[5]
in which the Labour Appeal Court found that the dismissal of an
employee for unauthorised absence was unfair and ordered
reinstatement.
13.
I have
considered that case, and as compelling as it may appear to be, find
the facts in the case before me distinguishable in that
the employee
was a supervisor, and knew that there had to be a replacement to
replace him whilst he was on leave. That was a standard
practice,
noting his seniority. He was informed that the two potential
replacements had become infected with Covid and that his
leave had
not been approved.
[6]
Despite
this reasonable justification for refusing him leave, he left anyway
for 13 days.
14.
The
arbitrator was alive to this evidence, and writes in his award, “…
on
the 25 January 2021 the teams arrived from isolation and phoned the
Applicant while at the hospital doing the test and told him
his leave
is not yet approved and the person who was supposed to replace him
while on leave is still in isolation.
”
[7]
Analysis
15.
The Applicant breached a workplace rule – he went on leave
without permission. He did so knowingly. The rule is
a reasonable
one, and in any event accords with the BCEA. In aggravation is the
fact that no replacement could be arranged because
two of his
colleagues had covid and were in isolation.
16.
I find that
the arbitrator’s reasoning and ultimate decision lies within
the spectrum of reasonableness. It is trite that
the Constitutional
Court has postulated the overarching reasonableness test when
assessing whether an award is vulnerable to review.
In
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[8]
the test is expressed as
follows, “
Is
the decision reached by the commissioner one that a reasonable
commissioner could not reach
?”
17.
In my mind the decision reached by the arbitrator is not one
that a reasonable commissioner could not reach, for the reasons
expressed
above. I therefore find that the arbitrator did not commit
a reviewable defect as contemplated in section 145 of the LRA. In the
circumstances I make the following order:
Order
18.
The review application is dismissed.
19.
No order as to costs.
D. NORTON
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv Ramcharethar
Instructed
by:
Nishlan
Moodley Attorneys
For
the Respondent: Adv Lennox
Instructed
by
Beech Veltman Inc
[1]
Paragraph 20 (1)
[2]
Heads of Argument, paragraphs 21. To 2.4
[3]
Paragraph 2.7
[4]
Paragraph 2.19
[5]
Case no. ca 19 / 2015
[6]
Transcript pg 24 onwards.
[7]
Paragraph 10
[8]
2007 12 BLLR 1097
(CC)