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[2010] ZALAC 34
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Metcash Trading Africa (Pty) Ltd v Maseko NO and Others (JA52/08) [2010] ZALAC 34 (28 May 2010)
8
JA52/08
- D K DE JAGER
JUDGMENT
2010-05-28
iAfrica Transcriptions (Pty)
Limited//dkdj
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT
:
JOHANNESBURG
CASE NO
: JA52/08
DATE
: 2010-05-28
In
the matter between
METCASH
TRADING AFRICA (PTY) LIMITED Appellant
And
COMMISSIONER
N MASEKO N.O. & OTHERS Respondent
_____________________________________________________________
Coram: DAVIS JA, PATEL JA & HENDRICKS AJA
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
DAVIS JA
: This appeal against a judgment, of
Moshoana AJ of 26 February 2008.
Briefly the facts can be summarised thus:
The third respondent was employed by the appellant and was also
shop steward of several years standing. On 1 March 2005,
the
third respondent failed to arrive at work without completing any
leave forms or proceedings through the formal procedures which
were
required with the obtaining permission to take leave.
It is not disputed that, on 22 March 2005, appellant transmitted
telegrams to third respondent to his home address requesting
that
third respondent contact his superiors at the premises of appellant
regarding the absence with had now ennead since 1 March
2005. It is
common cause that this telegram was sent and was delivered to the
home address of the third respondent. Notwithstanding,
the third
respondent tendered no plausible explanation for his failure to
respond.
The third respondent did not dispute that the appellant sent a
further telegram to his home address on 29 March 2005 requesting
that
he contacts his superiors regarding the absence from work. Again, he
accepted that the telegram was addressed, the third
respondent failed
to give any plausible explanation for his failure to respond thereto.
On 30 March 2005, appellant again sent a telegram to the third
respondent’s home address. Again no response was forthcoming
and no explanation was provided. The telegram advised the third
respondent that he should contact his superior by 16:30 on 31
March
2005 regarding his absence at work, the failure of which would result
in his having being considered to have absconded from
his employment.
As a result, the appellant sent a telegram on 1 April 2005, to the
same address advising that, due to his failure to respond to
the
earlier telegram requesting he make contact with his superior,
appellant regarded the third respondent as having absconded
from his
employment.
It is clear from the evidence that these notices accorded with the
appellant’s policy, which, given the fact that the third
respondent was a shop steward, was well known to him. The policy
stipulated that, should an employee be absent from work for
three
consecutive days, without being ill, without having any valid reason
for such absence, the appellant would make a reasonable
effort to
contact the employee and request the latter to contact the appellant
within 24 hours. Should the employee so fail, he
or she would deem
to have been absconded.
The third respondent then responded to the telegram of 1 April 2005
advising that he had lodged an appeal against the
finding. At a
postponed appeal hearing, in that he had failed to arrive at the
first hearing, the third respondent tendered, as
an explanation of
his absence, that his wife had given birth on 2 March 2005 and he
took family responsibility leave from 3 March
2005 whereafter he took
annual from 4 March to 6 April 2005, which leave he averred had
been verbally approved by one Sejake.
Notwithstanding this
explanation on 1 April 2005, he was dismissed from his
employment.
Having being dissatisfied with the decision for being dismissed, the
third respondent eventually took the matter to the second
respondent.
The first respondent was appointed as an arbitrator to determine the
dispute. The first respondent held that the appellant’s
version was more probable than the third respondent. Accordingly he
concluded that the third respondent did not have the necessary
permission to take leave, nor could the first respondent determine
that any procedural unfairness had accompanied the decision
to so
dismiss the third respondent.
The only issue therefore, was that of sanction. Without giving any
reasons for this part of the award, the first respondent found
that
the dismissal of the third respondent was substantively unfair on the
grounds that “the sanction of dismissal was too
harsh”.
Apart from this stark phrase, no explanation or justification was
provided by the first respondent.
In the light thereof, the appellant brought an application to review
to this finding by the respondent, on the grounds that the
latter
failed to take account of the evidence which had been presented to
him regarding the application of the policy, regarding
the absconding
to which I have made reference, further evidence, regarding the
length and seriousness of the third respondent’s
absence
without leave, the impact on the appellant’s operation and the
effect the decision have on the appellant’s
future application
of the rule against employees absconding.
The court
a quo
dismissed the review application on the basis
that a reasonable decision maker, being first respondent, could in
the circumstances
have found that the sanction of dismissal was too
harsh, such that the arbitration award could not be said to be
unreasonable.
In this, the court
a quo
appeared to have
relied on the approach set out by the Constitutional Court in
Sidumo
& Another v Rustenburg Platinum Mines & Others
(2007) 28
ILJ 2405 (CC).
That decision, regarding the approach which this court must adopt,
namely to determine whether the award was in accordance with
that
which would be made by a reasonable decision maker, was amplified by
Zondo JP in
Fidelity Cash Management Services v CCMA
,
(2008) 29 ILJ 964 (LAC) , when the learned judge president said
that there could be no doubt that under
Sidumo
:
“The reasonableness or otherwise of a commissioner’s
decision does not depend – at least not solely – upon
the
reasons that the commissioner gives for the decision. In many cases
the reasons which the commissioner gives for his decision,
finding or
award will play a role in the subsequent assessment of whether or not
such decision or finding is one that a reasonable
decision maker
could or could not reach. However, other reasons upon which the
commissioner did not rely to support his or her
decision or finding
but which can render the decision reasonable or unreasonable can be
taken into account. This would clearly
be the case where the
commissioner gives reasons, A, B and C in his or her award but, when
one looks at the evidence and other
material that was legitimately
before him or her, one finds that there were D, E and F upon which he
did not rely that could have
relied which are enough sustain the
decision”.
In the present case, no reasons are given. No justification is put
up by the first respondent and neither by the court
a quo
,
with respect, in respect of the conclusion that the decision was a
reasonable one. Whether the award is reasonable, must be determined
with due regard to all the evidence placed before the commissioner
and the issues were that were put before him or her.
In this particular case, the evidence is compelling, particularly
once the third respondent’s version of events is rejected
by
the first respondent, that is that he had absconded and once the
evidence presented by the appellant regarding the impact of
its
employees simply absconding for a month without any reasons, was left
unchallenged, as was the case in the present dispute.
There were no
facts with which the first respondent could work, so as to justify
the finding of the sanction of “too harsh”.
The first
respondent proffered none to gainsay this particular conclusion and
unfortunately neither did the court
a quo
.
In short, once the third respondent’s version that he had
permission was rejected, and it is found that he had absconded,
and
that he failed to present a plausible explanation for absconding for
a period of a month then the evidence placed before
the first
respondent supports the finding of the sanction of dismissal. This
approach to absconding had been consistently applied
when employees
absconded for such a lengthy period of time. In addition, there was
evidence presented that the lengthy seriousness
of his absence
without leave and the impact that this had on appellant’s
operations. No evidence was put up to gainsay any
of this evidence.
In short, even if the lack of a reason offered by first respondent
was ignored, on the basis of the
Fidelity
case, then the
evaluation of the evidence supports a conclusion that absence from
work for a lengthy and unexplained failure to
present himself for
work was not too harsh but reasonable in the circumstances.
For these reasons therefore, I would make the following order:
The appeal is upheld;
The decision of the court
a quo
is set aside and replaced
with the following order:
The review application is upheld;
The award of 20 September 2005, issued by the first respondent is
reviewed and set aside and replaced as follows:
3. The third respondent’s dismissal is upheld in that it was
substantively and procedurally fair.
PATEL JA
: )
HENDRICKS AJA
: ) Agreed
______________________
DAVIS JA
---oOo---
APPEARANCES:
Matter
Unopposed. No Respondents
For
the appellant: D.O.Pretorius
Instructed
by: Cliffe Dekker Hofmeyr Inc
Date
of Hearing: 28 May 2010
Date
of Judgement: 28 May 2010
iAfrica Transcriptions (Pty)
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