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[2016] ZALAC 56
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Pick 'n Pay Retailers (Pty) Ltd v South African Catering Commercial and Allied Workers Union obo Mzazi and Others (CA19/2015) [2016] ZALAC 56 (25 November 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable/Not
Reportable
Case no: CA
19/2015
In the matter
between:
PICK
’N PAY RETAILERS (PTY) LTD
Appellant
and
SOUTH AFRICAN
CATERING COMMERCIAL AND
ALLIED
WORKERS’ UNION OBO L MZAZI
First
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Second Respondent
S GOLDSCHMIDT
N.O.
Third Respondent
Heard:
8 September 2016
Delivered:
25 November 2016
Summary:
Employee dismissed in absentia for absconding from work. At
arbitration dismissal of employee found
substantively fair but
procedurally unfair in that no hearing convened on his return to work
and two months’ compensation
awarded for procedural unfairness.
On review the Labour Court found award unreasonable and set it aside,
substituting it with a
finding that the employee’s dismissal
was procedurally and substantively unfair and ordering retrospective
reinstatement
within 14 days. On appeal: judgment of Labour Court
upheld with no order as to costs subject to substitution of order of
retrospective
reinstatement with an order of reinstatement without
retrospective effect and a written warning valid for 12 months for
unauthorised
absence from work.
Coram: Waglay
JP, Landman JA
et
Savage AJA
JUDGMENT
SAVAGE AJA:
[1]
This
is an appeal, with leave of the Court
a
quo
,
against the judgment and orders of the Labour Court (Rabkin-Naicker
J) in which the award of the third respondent (the commissioner)
was
reviewed, set aside and substituted with a finding that the dismissal
of the employee, Mr Luyanda Mzazi, was procedurally and
substantively
unfair and his retrospective reinstatement within 14 days ordered.
This followed the commissioner finding at arbitration
that the
dismissal of the employee was substantively fair but procedurally
unfair with two months’ compensation awarded to
him.
[2]
At
the outset of the hearing, the appellant sought that the appeal be
reinstated in terms of the Rule 5(17) of the Rules that govern
proceedings in the Labour Appeal Court (‘the Rules’).
This followed the appellant’s late receipt of the judgment
of
the Labour Court dated 13 March 2015 granting the appellant leave to
appeal and the appellant’s subsequent delay in filing
the
notice of appeal and the appeal record. The application was not
opposed and having regard to the merits of the application,
the
appeal was duly reinstated and condonation for the late filing of the
notice of appeal granted.
[3]
The
employee was employed by the appellant, Pick ’n Pay Retailers
(Pty) Ltd, in June 2004. At the time of his dismissal, he
was a
storeman at the appellant’s Middestad branch in Cape Town. The
appellant’s leave policy, requires that annual
leave be taken –
‘
subject
to…trading requirements and business needs
…[and]
the
joint agreement of both management and the employee. If agreement
cannot be reached, then management will get together with
the
employee and his/her representative for
[purposes
of]
reaching
an amicable solution’
.
[4]
Leave
once agreed is recorded in a written document signed by both parties.
[5]
From
22 December 2012 until 4 February 2013 the employee was absent from
his work without the permission of the appellant. The appellant
sent
two telegrams to the employee: on 28 December 2012 and 2 January
2013. Both were sent to an incorrect address in Mfuleni,
Cape Town.
In these telegrams the employee was informed that he had been absent
without authorisation and had not communicated
the reasons for his
absence. He was asked to contact the appellant regarding his absence
from work and informed that a failure
to do so may lead to
disciplinary action. On 11 January 2013 a third telegram sent to the
same incorrect address recorded that
a disciplinary hearing would be
held on 15 January 2013 and that the hearing may proceed in his
absence if the employee failed
to attend. The employee did not
receive any of the three telegrams.
[6]
On
15 January 2013 the disciplinary hearing was held in the absence of
the employee. The written notice to attend the disciplinary
enquiry
recorded that the notice had been “
issued
in absentia
”
to the employee. It stated that the hearing related to “
absconding
from your workplace since 22/12/12 without authorisation
”.
Mr Yusuf Oyekunle, the assistant store manager at the Middestad
branch, acted as initiator and presented the case of the
appellant at
the hearing. He relied on the three telegrams sent to the employee,
an absenteeism report and the appellant’s
attendance register.
The minutes recorded that the employee had waived his rights to lead
evidence at the hearing.
[7]
In
his closing argument Mr Oyekunle reiterated that the telegrams had
been sent to the employee who had been absent from work and
who
“…
clearly
has no interest to work and should be found guilty
”.
The chairperson proceeded to find the employee “
guilty
of absconding from the workplace
”.
[8]
The
aggravating factors relevant to sanction put up by Mr Oyekunle were
the severe negative impact that absconding from the workplace
has on
the appellant’s business, the shortage of staff causing poor
service delivery and the employee’s failure to
respond to the
telegrams sent to him. He stated that the employee’s behaviour
could not be condoned and indicated that the
employee “
is
not interested in his work
”.
The employee was dismissed from his employment with immediate effect.
[9]
On
his return to work on 4 February 2013, the employee was informed of
his dismissal. Aggrieved with the decision to dismiss him,
he
referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration (CCMA).
Arbitration
award
[10]
When
the dispute was not resolved at conciliation, the matter was referred
to arbitration. The evidence at arbitration was that
the employee
approached Mr Oyekunle on 21 December 2012, at a time when the store
manager was with him in the office, with a request
to take leave from
27 December 2012. When the employee told him that he had been granted
leave, Mr Oyekunle indicated that he was
not aware of this:
‘…
he
said “I have to take my leave and I’ve got leave.”
I said, “Well, yes you’ve got leave, we can
talk about
when you need to take leave but I think it’s not fair for you
to just come to me now and you’re telling
me you’re
taking leave from the 27
th
or whenever…the store manager was in the office at that point
in time, so then I said okay, fine, I will give you leave
not now
because one, I need to make [a] plan to get someone in your position.
Secondly, it’s just [a] bit of a short notice
for me
considering the time of the season
.’
[11]
Mr
Oyekunle told the employee that he could take leave in the first week
of January; that he should come to him so that the paperwork
could be
completed; and that the employee should ensure that someone was
available to work in his place. The employee indicated
that he had
always taken his leave in December and Mr Oyekunle replied that it
was not about whether he took leave then but that
he had not given
enough time to allow other arrangements to be made when an agreement
had to be reached on when leave was taken.
When the employee then
told Mr Oyekunle that there was a crisis in his family related to
someone passing away, Mr Oyekunle asked
him for the necessary
documentation as “
proof
then I can book you off as an occasional leave pending the time I
approve a leave for you
”.
The employee did not provide the documentation, no leave was
authorised and Mr Oyekunle was adamant there was no misunderstanding
between them. The employee, who was the only person working in the
stock room at the time, did not report for duty thereafter and
was
absent from work from 22 December 2012, until 4 February 2013, the
same number of working days as the annual leave days due
to him.
[12]
Mr
Oyekunle stated that the trust relationship had broken down as a
result of the employee not respecting the appellant’s
rules in
circumstances in which absenteeism has a huge impact on the business
over the festive season. He stated that he had expected
the employee
to return to him to reach agreement before proceeding on leave and
that he would not be able to work with the employee
or trust him
again. Mr Oyekunle stated that when he took over from Mr Bradley
Jantjies as assistant manager in June 2012, he was
given a leave
planner for the grocery department but not one person had been
scheduled on the planner to take leave from June to
December of that
year.
[13]
Mr
Oyekunle reiterated the appellant’s leave policy, in which
leave is approved subject to the employer's trading requirements
and
business needs. A leave form is completed once leave is granted,
which is signed by both the manager and employee and is entered
into
the relevant computer system and a copy of the approved form is
provided to the employee. He stated that Ms Joseline Gertse
had
received a written warning on 11 January 2013 for unauthorised
absenteeism in that she took leave from 27 December 2012 to
10
January 2013 when her leave had been approved but she had not
completed a leave form.
[14]
The
evidence of Mr Bradley Jantjies was that he had not approved leave
for the employee commencing in December 2012. At a staff
meeting on 1
February 2012, he made it clear that if leave had been taken in
December 2011, there would be no entitlement to leave
in December
2012. Only one person gave dates for leave at the meeting but her
name could only be inserted onto the leave planner
once approved.
[15]
The
employee’s evidence was that he had been authorised to take
leave in that after the February 2012 meeting, he had completed
a
leave form for leave from 27 December 2012. He said he had explained
that he needed to attend the unveiling of a tombstone for
his
parents. He did not receive a copy of this form from the appellant.
Neither the employee’s version that he had signed
a leave form,
nor that he had told Mr Jantjies the reason he wanted to take leave
was put to Mr Jantjies in cross-examination.
The employee stated that
when he spoke to Mr Oyekunle on 21 December 2012, it was to remind
him that he was taking leave from 27
December and to seek leave from
24 December 2012 to attend a family funeral. He stated that Mr
Oyekunle was dismissive of him and
he denied that the possibility of
leave in January had been discussed. The employee’s evidence
was that he did not receive
any telegrams or telephone calls from the
appellant and that he had never lived at the address used by the
appellant in the three
telegrams.
[16]
A
storeman named Mbulelo was, accordingly to the employee, prepared to
swap his December leave with the employee, a fact of which
Ms
Veronica Pieterse testified she was aware. This evidence was not
confirmed by Mbulelo. Ms Gertse had also submitted a leave
form at
the February 2012 meeting but had not received a copy of it from the
appellant. She received a written warning in
January 2013 for
unauthorised absenteeism.
[17]
In
the arbitration award, the commissioner rejected the employee’s
version, finding that he had taken leave without authorisation
and
that he had committed misconduct. The commissioner took account of
the employee’s key position, his lengthy period of
unauthorised
leave, the fact that it was taken at the busiest retail time of the
year and his failure to reach an agreement with
Mr Oyekunle regarding
leave in January or occasional leave. This led the commissioner to
conclude that the misconduct committed
was serious, had implications
for the appellant’s operations and undermined the trust
relationship. Although the commissioner
found that the employee had
no intention to abscond which “
placed
his conduct in a different light
”
to what was found at the disciplinary hearing, given his lengthy
absence from work and his lack of contact with his employer,
the
appellant “
had
no choice
”
but to assume that he was not returning to work. The dismissal of the
employee was accordingly found to be substantively
fair.
[18]
Turning
to the procedural fairness of the dismissal, the commissioner found
that the appellant “
should
have dealt with the situation differently when the applicant
eventually returned to work
”
and given him a hearing on his return to work:
‘
The
fact that the applicant did return to work, and reported for duty,
meant that there was no intention to abscond. This placed
his conduct
in a different light. While the absence of the applicant was lengthy,
the applicant also had a long service history
with the respondent.
The respondent is a large employer with a sophisticated and well
resources HR department. The applicant was
entitled to the very basic
principle of fairness…to state [his] side of the matter, and
to defend himself against allegations
of misconduct
.’
[19]
The
employee was awarded two months’ compensation for procedural
unfairness.
Judgment of
Labour Court
[20]
On
review, the Labour Court took account of the fact that the
commissioner found that the employee had not absconded from work,
which was the offence he had been charged with, as well as the
commissioner’s finding that this placed the employee’s
conduct “
in
a different light
”.
The Court found that “
it
can be assumed
”
that the commissioner’s finding that the employee should have
been provided with a proper opportunity to explain his
conduct on his
return meant that had such opportunity been provided “
this
may have prevented his dismissal
”.
Furthermore -
‘
The
issue of [the employee’s] clean disciplinary record, the reason
for his need to return to the Eastern Cape to unveil tombstones
for
his parents and [his] relatively long employment history with the
company were all considerations that should have been addressed
by
the Commissioner in the process of coming to a decision regarding the
substantive fairness of the dismissal. They were not.
Further, the
reasoning that a disciplinary hearing may have put [his] absence in a
different light, highlights the flaw in this
approach
.’
[21]
The
Court found that the decision that the dismissal was substantively
fair was one that a reasonable decision-maker could not reach.
No
issue was taken with the commissioner’s finding that the
dismissal had been procedurally unfair. As a result the order
made
was that:
‘
(1)
The
award under case number WDC T2454 – 13 is hereby reviewed and
set aside and substituted as follows:
‘
(a)
The dismissal of Mr L. Mzazi was procedurally and substantively
unfair;
(b)
The third respondent is ordered to retrospectively reinstate Mr Mzizi
within 14 days
of this order.
”
(2)
There is no order as to costs
.’
Grounds of
appeal
[22]
In
its notice of appeal, the appellant raised the following broad
grounds of appeal:
22.1
that the Labour Court erred in finding that the commissioner’s
decision that the dismissal of the employee
was substantively fair
was not one that a reasonable decision-maker could make;
22.2
that the Court erred in conflating procedural and substantive
fairness;
22.3
that the Court erred in taking into account certain alleged errors in
the commissioner’s reasoning
and in finding that the
commissioner made an error of law in placing an
onus
on the employee to discover his leave form;
alternatively
that it erred in substituting its finding for that of the
commissioner when it ought to have remitted the matter back for a
re-hearing.
Evaluation
[23]
It
is now trite that whether a commissioner’s finding was one
which a reasonable decision-maker could not reach on the material
before him is to be determined in light of
Sidumo
v Rustenburg Platinum Mines Ltd and Others (Sidumo)
[1]
and with reference to
Herholdt
v Nedbank Ltd
[2]
and
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
.
[3]
[24]
While
ordinary principles of contract permit a contracting party to
terminate a contract if the other party is unable to perform,
in an
employment context, the question remains whether it was fair for the
employer to exercise that election.
[4]
The
material before the commissioner clearly showed that there was no
agreement that the employee could take leave in December.
The
appellant’s leave policy expressly required such agreement in
writing, of which policy the employee was aware, and in
being absent
from work without authorisation the employee conducted himself in
breach of the appellant’s rule.
[25]
In
determining whether the appellant’s decision to dismiss was
fair i
n
Theewaterskloof
Municipality v SALGBC and Others,
[5]
echoing the Constitutional Court in
Sidumo
,
it was recognised that the commissioner must balance “
the
reason why the employer imposed the dismissal against the basis of
the employee’s challenge of it. That requires a proper
understanding of both, which must then be weighed together with all
other relevant factors in order to determine whether the employer’s
decision was fair
.”
[6]
The
relevant
circumstances to be considered include the elements of the Code of
Good Practice
with
the task of the commissioner being
neither
to consider sanction afresh nor to defer to the employer’s
decision.
[7]
[26]
In
considering the fairness of the employee’s dismissal, the
commissioner had regard to the employee’s position and
his
lengthy period of unauthorised leave at a busy time of the year to
find that the misconduct was serious and undermined the
trust
relationship with the appellant. The commissioner found that the
appellant in dismissing the employee had “
no
choice
”
but to assume that the employee was not returning to work. This was
so in spite of evidence that the appellant had failed
to send notice
to the employee at the address it had for him on record; and that Mr
Oyekunle was aware that the employee had sought
to take annual leave
and then occasional leave yet made no reference made to this at the
disciplinary hearing.
[27]
With
an emphasis on corrective and progressive discipline,
the
Code of Good Practice recognises that dismissal for a first offence
is reserved for cases in which the misconduct is serious
and of such
gravity that it makes continued employment intolerable. For leave
without authorisation to justify summary dismissal
for the first
offence, the material before the commissioner must exist to show that
the misconduct was of such a serious nature
as to justify dismissal
the imposition of the most severe of available sanctions.
[28]
Although
it was suggested that the employee’s absence caused operational
strain over the busy festive period given his position
as storeman,
no evidence showed that it caused harm of such a serious nature that
it warranted summary dismissal for the first
offence.
[8]
This
was more so when the employee had a lengthy period of service and a
clean disciplinary record. While he was clearly wilful
and displayed
disregard for the appellant’s rules, the employee was not
dishonest in his misconduct, which was shown to have
caused
inconvenience but no proven loss or damage to the employer. Regard
was not had by the commissioner to the fact that as a
large employer,
the appellant had the resources to make contingency plans, that such
plans were made and that the employee ultimately
returned to work at
the conclusion of what he considered to be the leave days due to him.
[9]
[29]
The
commissioner also had no regard to whether discipline for the same or
similar disciplinary infractions had been applied consistently
by the
appellant.
[10]
Ms Gertse received a written warning for taking leave without
authorisation in circumstances in which it concerned the breach of
the same rule, although her misconduct was distinguishable in
severity in that her leave had been agreed but her leave form not
authorised by signature.
Furthermore,
the commissioner did not have regard to the appellant’s
evidence of its failure to comply with its own procedure
in sending
telegrams calling on an employee to return to work to the incorrect
address. The fact that the appellant did not comply
with its own
procedure made it irrelevant whether the employee would have complied
with the instruction to return to work if the
correct address had
been used.
[30]
For
these reasons, I am satisfied that the Labour Court’s finding
cannot be faulted that the commissioner’s decision
that the
dismissal of the employee was substantively fair was not one that a
reasonable decision-maker could reach on the material
before him.
[31]
The
commissioner failed to have appropriate regard to the material before
him and the relevant circumstances as they applied to
this matter.
The breach of the employer’s rule in the circumstances of this
matter warranted the imposition of a sanction
short of dismissal
given the relevant facts, consistency in the manner of application of
the rule and the response to its breach,
the employee’s clean
disciplinary record and long service.
[32]
As
a result, the award was unreasonable and permitted interference on
review to the effect that the dismissal of the employee was
too harsh
and that the imposition of a sanction short of dismissal was both
fair and appropriate in the circumstances. Given the
nature of his
misconduct, the employee should however receive a final written
warning valid for 12 months from the date on which
he is reinstated
into his employment with the appellant for unauthorised absence from
work.
[33]
The
employee seeks reinstatement into his employment with the appellant.
As was stated in
Equity
Aviation
Services
(Pty) Ltd v CCMA and Others (Equity Aviation)
:
[11]
‘
The
ordinary meaning of the word “reinstate” is to put the
employee back into the same job or position he or she occupied
before
the dismissal, on the same terms and conditions. Reinstatement is the
primary statutory remedy in unfair dismissal disputes.
It is aimed at
placing an employee in the position he or she would have been but for
the unfair dismissal. It safeguards workers’
employment by
restoring the employment contract.’
[12]
(footnotes omitted)
[34]
The
court or arbitrator may in terms of
s193(1)(a)
of the
Labour
Relations Act 66 of 1995
“
order
the employer to reinstate the employee from any date not earlier than
the date of dismissal”.
A
determination of the date of reinstatement requires the court or
arbitrator to exercise
a
discretion judicially,
[13]
with
regard had to the relevant circumstances, so as determine what is
fair and equitable. This requires a consideration of such
factors as
the nature and extent of the employee’s conduct, the reasons
for the finding that dismissal was unfair, the effect
of the
reinstatement order on the employer,
[14]
the reason for and impact of delays in the determination of the
dispute and the extent of the employee’s loss of income.
[15]
[35]
Having
regard to the nature of the employee’s misconduct, the reasons
for the finding that the sanction of dismissal was unfair,
the
disciplinary warning to be imposed on the employee and the effect of
the reinstatement order on the appellant, the view I take
of the
matter is that an order of reinstatement without retrospective effect
is fair in the circumstances of this matter.
[36]
The
appellant does not appeal against the finding of procedural
unfairness but contends that the Labour Court erred in conflating
procedural and substantive fairness. I am not persuaded that there is
merit in this ground of appeal. The commissioner noted that
the fact
that the employee returned to work placed his conduct “
in
a different light
”.
This indicated a recognition that, while the employee had been
dismissed on the basis that he “
is
not interested in his work
”,
his return to work did not bear this finding out. The Labour Court,
in finding that the employee may have prevented his
dismissal had he
been provided with an opportunity to explain his conduct on his
return, did not conflate procedural and substantive
fairness in this
or any other manner such as to justify the appeal being upheld.
[37]
Furthermore,
even if an erroneous finding was made regarding where the
onus
lay in the discovery of the leave form, this is of no moment having
regard to the dispute as a whole and the manner in which the
Court
a
quo
approached the matter and does not warrant the setting aside of the
Labour Court’s judgment on appeal. The Labour Court can
also
not be faulted for substituting its finding for that of the
commissioner in circumstances in which a full record was before
the
Court and there was no reason to justify the remittal of the matter
back to the CCMA. For all of these reasons, the appeal
must fail.
[38]
No
order as to costs is either sought or made.
Order
[39]
In
the result, the following order is made:
1.
The
appeal is dismissed with no order as to costs, subject to the
substitution of paragraph 1 (b) of order of the Court
a
quo
as follows:
“
(b)
The third respondent is ordered within 14
days of this order to reinstate Mr Mzizi
without
retrospective effect into the same or similar position, subject to a
final written warning for unauthorised absence from work valid
for 12
months from the date of reinstatement.”
_________________
SAVAGE AJA
Waglay JP and
Landman JA agree.
APPEARANCES:
FOR
THE APPELLANT:
Mr G A Leslie
Instructed by Bowman Gilfillan
FOR
THE FIRST RESPONDENT:
Mr Mbana
SACCAWU
[1]
2008
(2) SA 24 (CC).
[2]
(2013)
34 ILJ 2795 (SCA).
[3]
(2014)
35 ILJ 943 (LAC) at para 16.
[4]
National
Union of Mineworkers and Another v Samancor Ltd (Tubatse
Ferrochrome) and Others
[2011]
11 BLLR 1041
(SCA); (2011) 32 ILJ 1618 (SCA) at para 12.
[5]
[2010]
10 BLLR 1216 (LC).
[6]
At
para 1223.
[7]
Sidumo
(
op
cit
)
at
para 79 and 117; Item 3
Schedule
8 of LRA.
[8]
Item
3(5).
[9]
Gcwensha
v CCMA and Others
[2006]
3 BLLR 234
(LAC)
at para 36;
Irvin
& Johnson
(1999)
20 ILJ 2302 (LAC) at para 29.
[10]
Item
3(6).
[11]
2009
(1) SA 390 (CC).
[12]
At
para 36.
[13]
NUMSA
and Others v Fibre Flair CC
t/a
Kango Canopies
[2000] 6 BLLR 631
(LAC);
Kroukam
v SA Airlink (Pty) Ltd
[2005] 12 BLLR 1172
(LAC) at paras 61-64.
[14]
Seardel
Group Trading (Pty) Ltd t/a Cape Underwear Manufacturers v SACTWU
and Others
[2009]
11 BLLR 1051 (LAC).
[15]
NUMSA
obo Maifo v Ulrich Seats (Pty) Ltd
(2012)
33
ILJ
2918
(LC) at 2929.