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[2006] ZALCJHB 2
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Mohale v Formica South Africa (JR1574/03) [2006] ZALCJHB 2 (24 November 2006)
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR1574/03
DATE
HEARD AND DELIVERED
: 2006-11-24
NOT
REPORTABLE
In
the matter between:
MASILO
ALFRED
MOHALE Applicant
And
FORMICA
SOUTH
AFRICA Respondent
J
U D G M E N T
PILLAY
D, J
:
In this review the applicant seeks to set aside the award in which
the second respondent, the Commissioner confirmed his
dismissal.
The applicant had tendered medical certificates issued by an
obstetrician and gynaecologist in support of his
claim for sick
leave. He was dismissed as his conduct was regarded as
fraudulent.
His
union intervened and negotiated his reinstatement on certain terms.
His misconduct was to be reduced to the lesser offence
of not
adhering to the company policy on compassionate leave for which he
would receive a final written warning. He was also
not to be
paid for a month. These terms were framed as an offer which the
applicant had to accept before they could be implemented.
The
applicant refused to sign the offer. No agreement accordingly
came into place.
Mr
West, counsel for the applicant, submitted that the third respondent,
the employer had waived its right to dismiss the applicant
once it
made the offer. The terms of the offer implied that the
relationship had not broken down and that “additional
evidence”, which had not been available when the decision was
taken to dismiss, had since come to light. The additional
evidence referred to, namely an acknowledgement by the employer that
the applicant did not enjoy a good relationship with his supervisor,
was evidence quite unrelated to the fraudulent nature of the
applicant’s conduct.
The
picture that emerges is that the employer entered into constructive
conciliation with the applicant and his union. In
doing so it
did not abandoned its rights to dismiss the applicant.
Abandonment or waiver of the right to take disciplinary
action has to
be unequivocal to be effective. If the Commissioner or the
Court were to hold otherwise it will be a disincentive
to
constructive and meaningful conciliation in misconduct cases.
In
this award the Commissioner recognises the applicant’s conduct
as fraudulent. He was paid sick leave when, on his
version, he
should have claimed compassionate leave as he took the leave to take
care of his wife. The medical certificate
had been issued in
his name but had described his wife’s condition.
A
lesser amount was paid for compassionate leave than for sick leave.
Furthermore, the leave taken had coincided with long
weekends.
In all the circumstances the award is unassailable and the
application for review is dismissed with costs.
---oo0oo---
______________
Pillay
D, J
7
February 2007