About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2004
>>
[2004] ZALCJHB 5
|
|
Mawelele v Commission for Conciliation Mediation And Arbitration and Others (JR622/03) [2004] ZALCJHB 5 (18 October 2004)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR622/03
In
the matter between
NELSON
MAWELELE
Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
1
st
Respondent
W
FERREIRA
N.O.
2
nd
Respondent
APRON
SERVICES (PTY)
LTD
3
rd
Respondent
JUDGMENT
REVELAS,
J:
[1]
This is an application for the review and setting aside of an award
made by the second respondent (“the
arbitrator”), who
found that the dismissal of the applicant was fair. The
arbitrator made his award after conducting
an arbitration hearing
under the auspices of the first respondent, (“the CCMA”).
The applicant, a shift
control officer was dismissed by the third respondent, having been
found guilty of four charges. They
are:
1.
Leaving the workplace early without permission.
2.
Failing to work according to standard.
3.
Leaving a subordinate with responsibilities he was not able to
carry out
and before the end of the shift.
4.
Bringing the company's name into disrepute.
[2]
These four charges were brought against the applicant after he had
left the workplace to go elsewhere
and asked a person by the name of
Mr Khoza to take care of his duties. In his absence several
things went wrong.
[3]
The third respondent provides certain passenger service for the South
African Airways. As a result
of the applicant’s absence
certain passenger buses did not get to their designated airplanes and
passengers had to walk some
distance to the terminal building, which
was, as argued, a safety risk. Disgruntled passengers
articulated their dissatisfaction
and the airline in question
indicated to the third respondent that it would rather seek the
services of a different service provider
if the third respondent was
to continue providing service of this quality.
[4]
The arbitrator found that the four charges on their own did not
constitute dismissable offences, but
that their cumulative effect had
the result that the third respondent was entitled to dismiss the
applicant. It is common
cause that all four charges arose out
of the same incident. The arbitrator further found that the dismissal
was procedurally fair
and this latter finding was not attacked on
review. The main ground of review was, that the record was
insufficient and thus
the matter had to be remitted back to the CCMA.
[5]
The record is far from satisfactory but neither party persuaded me
that the record was so deficient
that one could not make certain
findings about the rationality of the award, that is the connection
between the conclusion and
the facts placed before the arbitrator.
That ground was in any event not pursued very seriously although it
was apparently
not abandoned.
[6]
Secondly, the rationality of the award was attacked. In this
regard the arbitrator’s “splitting”
of the charges
to the detriment of the applicant, he was criticised. At
this juncture I may just say that this was
not argued before the
arbitrator. The argument arises for the first time on review.
The arbitrator was also criticised
for his failure to apply his mind
to the facts before him.
[7]
It was submitted that the finding, that the previous instance when
the applicant delegated his responsibilities
to a subordinate and
left the workplace before the end of the shift, was an isolated
incident. The applicant contended that
he delegated his
responsibilities to Mr Khoza specifically and on several occasions.
He also denied that he knew anything
about the standard ground rules
to be followed at the workplace. The applicant argued that his
presence would have made no
difference, due to the fact that the
breakdown of the bus was the main problem on the night in question.
[8]
The arbitrator was also criticised for the finding that Mr
Hlongwane's evidence, pertaining to Mr Khoza's
lack of authority to
instruct bus drivers to work overtime, should have been preferred to
the evidence of the applicant, that he
did have the authority.
[9]
In my view, the transgression committed by the applicant was rather
serious and the third respondent
may possibly have faced a loss of
business as a result of the incident in question. The applicant
also had no right to delegate
his duties to Mr Khoza and should not
have done so on several occasions. However he was charged on
the basis of one incident.
The charges all flow from one
incident.
[10]
What the arbitrator had overlooked was whether this was indeed a
dismissable offence. The applicant
had worked some seven years
for the third respondent and apparently had certain other warnings.
This issued was not clarified
to me. Before me, he had a clean
record. I had made specific enquiries in court from the parties in
this regard. The
offence is one which should be corrected with
progressive discipline.
It
seems that the applicant does not deem it necessary to obey
instructions. It is not for him to leave early and leave others to
do
his work but he did deserve a warning, before being summarily
dismissed.
[11]
There was also evidence that as a result of poor weather conditions
two incoming flights were delayed. The
applicant had no knowledge
that these flights would be delayed. Furthermore, due to a
breakdown in a number of buses there
were insufficient buses to
transport the passengers on these two flights at the arrival hall.
As a result of this delay the
applicant was charged with the four
separate offences, which in my view, should have been one. I gained
the impression that the
applicant was punished for the consequences
of his offence, rather than the offence itself.
[12]
The third respondent's counsel admitted that the fourth charge,
namely that of bringing the company's name
into disrepute, was a
consequence of the first charge and those two charges, at best, could
lead me to opine that that was a splitting
of charges. However,
he argued that the second and third charges were different in that
delegating authority was a separate
offence. Insofar as the
third charge is concerned I am not quite certain that the failure to
work according to standard,
(the second charge), is the same as the
first charge, (leaving the workplace early without permission). It
seems to be the same
as the third charge, (leaving a subordinate with
responsibilities he was unable to perform). The fact that the
applicant
delegated his work to someone else should not constitute a
separate offence. He did so as part of an in perpetrating the
dereliction of his duties or leaving the workplace without
permission, which is the offence in question. If he did not
delegate
his duties that afternoon, his offence might have been
regarded as even more serious. The four separate charges are
indicative
of a shotgun approach.
Furthermore
his offence is one where an employer should observe progressive
discipline. The arbitrator also held that on their
own the four
separate charges, (including the charge of leaving the workplace) are
not dismissable offences. There is only
one offence.
Therefore, in the absence of a clear warning relating to a similar
offence, dismissal was not appropriate.
[13]
The offence or charge is serious, but I gained the impression that
other matters also went wrong on this
particular day which the
arbitrator did not take into account. The sanction imposed was a
rather harsh penalty on the applicant
in the circumstances.
This is a case where it should have been made clear, in no uncertain
terms, to Mr Mawelele that should
he ever leave the workplace again
he would lose his job. There are no doubt many people waiting
at the third respondent’s
gates who are looking for jobs and
who are prepared to work their full hours and not leave early.
It is not for Mr Mawelele
to leave the workplace early. Yet, he
was entitled to a warning. The fact that so much went wrong on
this day, should
not detract therefrom.
[14]
I am also cautious that I should not interfere with the sanction of
the employer. If the employer feels
that an employee should be
dismissed, courts and arbitrators must be cautious not to interfere
unnecessarily with that sanction
because they do not work at this
particular workplace and they do not know what the constraints are.
[15]
Yet I also have to look at what is fair and, in my experience, I
believe it was unfair not to have given
the applicant a final written
warning.
[16] In
the circumstances I make the following finding:
1.
The award of the second respondent is hereby set aside and
substituted with the following:
“
The
applicant is to receive a final written warning to the effect that
should he commit a similar transgression in the next two
years he
may be dismissed immediately”.
2.
There is no order as to costs.
____________________
REVELAS
J
For
the Applicant:
Mr R Daniels
Instructed
by
Cheadle
Thompson and Haysom Attorneys
For
the Respondent: Adv. Le
Grange
Date
of Hearing:
15 October 2004
Date
of Judgment:
18 October 2004