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[2008] ZALCJHB 24
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Samancor Ltd v Metal And Engineering Industries Bargaining Council and Others (JR1061/2007) [2008] ZALCJHB 24 (1 July 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: JR1061/2007
In
the matter between:
SAMANCOR
LIMITED Applicant
and
METAL AND ENGINEERING
INDUSTRIES
BARGAINING
COUNCIL First
Respondent
JAN
STEMMETT
N.O. Second
Respondent
NATIONAL UNION OF
MINEWORKERS
obo JOHANNES
MALOMA
Third Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an application to review and set aside an arbitration award
issued by the second respondent (the commissioner) under
case number
MEGA14010 dated 28 February 2007. The commissioner had found
that the third respondent’s dismissal was
substantively and
procedurally unfair and ordered his reinstatement on conditions no
less favourable than those that applied prior
to his dismissal with
effect from 2 November 2006.
2. The
review application was opposed by the third respondent.
The background
facts
3. The
third respondent, Johannes Maloma was employed by the applicant as a
furnace operator in August 1996. He was arrested on
20 May 2006 on
suspicion of having committed a robbery. He remained in custody
and was absent from work for approximately
137 days. The
applicant was informed about the third respondent’s arrest.
4. The
third respondent was dismissed on 30 May 2006 on the grounds of
incapacity in that he was physically unable to tender his
services.
On 2 November 2006 a post dismissal hearing was held by the applicant
following the third respondent’s dismissal
for incapacity after
his release from custody. The disciplinary chairperson said
that he could not have been expected to
put in place a temporary
arrangement for such a length of time to keep the third respondent’s
position open for him.
His absence could not be condoned and
his dismissal was upheld.
5. The
third respondent assisted by the National Union of Mineworkers
referred the dispute to the first respondent for conciliation
and
after conciliation had failed to arbitration.
The arbitration
proceedings
6. The
third respondent challenged the procedural fairness of his dismissal
on the grounds that the chairperson of the enquiry,
Mr Niewoudt, was
not objective because he initiated the charge as the human resources
manager and chaired the enquiry. The
applicant’s
disciplinary code requires that the chairperson of the enquiry must
be agreed upon by the stakeholders.
Incapacity is not a ground
for dismissal in terms of the disciplinary code. He challenged
the substantive fairness of his
dismissal since his dismissal from
work was due to reasons beyond his control and his dismissal was not
justified. The sanction
of dismissal was too harsh in the
circumstances. The applicant was not dismissed for disciplinary
reasons, but due to operational
incapacity. This did not fall
under the applicant’s disciplinary code.
7. The
applicant did not call any witnesses at the arbitration hearing.
The third respondent testified. A bundle of documents
was
handed up. The issue that the commissioner had to decide
was whether the third respondent’s dismissal for
operational
incapacity relating to his absence from work was both procedurally
and substantively fair.
8. The
third respondent testified that he commenced employment with the
applicant in August 1996 and was working as a furnace operator,
earning R9 692.00 per month at the time of his dismissal. He
was detained by the South African Police Services on a suspicion
of a
robbery from 27 March 2006 to 10 April 2006. After his release
on 11 April 2006, he was charged by the applicant for
absenteeism but
he was found not guilty and returned to work. On 20 May 2006 he
was rearrested for robbery. He telephoned
his supervisor from
the police cells and his sister also notified the applicant the
following day after his arrest. Ten days
later, he was
dismissed in his absence for operational incapacity because he was
incapable of doing his duties. He was unaware
of his dismissal
and when he was released after 137 days, he returned to work.
He then established that he had been dismissed
on 30 May 2006.
He was given a post dismissal hearing on 2 November 2006. The
chairman, Niewoudt found that the period
of his absenteeism was too
long to expect the applicant to accommodate him.
9.
During cross examination, the third respondent testified that he was
detained and the applicant was kept informed of his whereabouts
and
court appearances by his sister, who informed his supervisor on a
regular basis. He did not know how long he was going
to be kept
in custody. He was then taken to other police stations where he
was questioned which is the reason why he did
not get the applicant’s
letter.
10.
The third respondent’s union submitted that the applicant did
not notify the union about the applicant’s dismissal.
A
notice of dismissal was delivered to the police station from where
the third respondent had initially telephoned his supervisor
after
his arrest. This letter was not delivered to the third
respondent. In the letter dated 30 May 2006, Niewoudt
wrote as
follows:
“
OPERATIONAL
INCAPACITY DISMISSAL
You
have failed to report for duty since the 20th of May 2006 and you are
therefore in breach of contract of employment as you are
physically
unable to tender your services as required. Your service of
employment is terminated with effect from 30 May 2006.
A
post dismissal hearing will be held on your return to work to
establish if you have a valid reason for your absence.”
11. The third respondent
submitted that the dismissal was procedurally unfair because the
applicant did not apply its own disciplinary
code. Among
others, the code stipulates that the chairperson of a disciplinary
enquiry, should be agreed between the applicant
and the union.
12.
The applicant contended that the third respondent was dismissed for
incapacity. Incapacity is a no fault dismissal based
on the
principle on impossibility of performance. The employee, through no
fault of his, is incapable of doing his duties.
The respondent
also referred to the requirements of a fair dismissal for
incapacity. The third respondent’s position
could not be
left open indefinetly due to the operational requirements of the
applicant. Furthermore the third respondent
had no knowledge of
the duration of the third respondent’s absence and, in the
light of the additional charges, whether the
third respondent would
be arrested. The post dismissal hearing held on 2 November
2006, was held in terms of the applicant’s
disciplinary code.
The hearing was chaired by Niewoudt and it is recorded in the
disciplinary report, that the charge was
the post dismissal hearing
following the third respondent’s dismissal for incapacity.
In reaching the verdict, the
chairperson acknowledged that the third
respondent had notified his supervisor of the reasons for his
absence. The chairperson
took into account that the third
respondent was absent for 137 days, that the applicant could not have
been expected to proceed
with a temporary arrangement for such a long
time, that the criminal case was still pending and that this was the
second time in
a period of six months that the third respondent had
been detained. The chairperson decided that the third
respondent’s
absence could not have been condoned and that the
decision to terminate the third respondent’s services was
upheld.
The applicant referred to several decided cases
including
Lebowa Platinum Mine Limited v
CCMA and others
(2002) 5 BLLR 429
(LC),
in which the court held that there is a duty on an employer to
conduct a disciplinary hearing if an employee returns to work.
The applicant contended that it had complied with its obligations.
The arbitration
award
13.
The commissioner summarised the issue that he was called upon to
decide and then proceeded to record the evidence led and arguments
raised. The commissioner said that the dismissal for incapacity
needed to be investigated in the extent and likely duration
of the
incapacity. The applicant did not appear to have investigated
this matter. No contact was made with the third
respondent
while he was detained and no discussion was held with the union.
14.
The commissioner found that on the evidence before him that the
dismissal of the third respondent on 30 June 2006 as confirmed
on 2
November 2006 was procedurally unfair for the following reasons:
14.1
Absenteeism is a disciplinary offence and cannot be treated as an
operational incapacity.
14.2
Whatever procedure the applicant purported to follow on 30 May 2006,
did not afford the third respondent
an opportunity to present his
case. No effort was made to ascertain how long the third
respondent was likely to be detained
and the matter was discussed
neither with the third respondent nor with his union. After 10
days absence, the applicant decided
to dismiss him and a letter was
delivered to the police station but was not received by the third
respondent.
14.3
Niewoudt apparently took the original decision to dismiss the third
respondent and chaired the post
dismissal hearing on 2 November
2006. This created a perception of bias and renders the
dismissal procedurally unfair.
15.
The commissioner said that he found that the third respondent’s
dismissal was substantively unfair, because the applicant
did not
properly take into account the fact that the third respondent had no
control over the circumstances and duration of his
absence.
There is no evidence that the third respondent was occupying such a
key position at the applicant that necessitated
his dismissal after
10 days of absence.
16.
The commissioner found that he was not convinced that the employment
relationship between the third respondent and the applicant
had been
rendered intolerable. He was of the view that the third
respondent should be reinstated but that the applicant should
not be
penalised for the period that the third respondent was detained.
It would have been fair if the applicant had decided
to re-employ the
third respondent from the date of the post dismissal hearing on 2
November 2006.
17.
The commissioner found that the dismissal of the third respondent by
the applicant was substantively and procedurally unfair.
The
applicant was ordered to reinstate the third respondent on conditions
that are not less favourable than those that applied
before the third
respondent’s dismissal, with effect from 2 November 2006.
The grounds of
review
18.
The applicant submitted that the commissioner’s award suffers
from certain material misdirections and defects in relation
to the
assessment of the evidence concerning procedural fairness, and
further that the conclusions reached is not reasonable and/or
unfair
and irrational and/or not justifiable on the basis of the evidence
before the commissioner or the reasons given for them.
In
finding that the third respondent’s dismissal was procedurally
unfair, the commissioner misconducted himself, committed
a latent
gross irregularity and/or exceeded his powers in that he concluded
that absenteeism could not be treated as an incapacity;
found that
the third respondent was not afforded an opportunity to present his
case but failed unjustifiable to attach the appropriate
weight to the
fact that it was impossible for the third respondent to do so given
his detention; not reasonable and/or unfair and/or
unjustifiably
placed the responsibility of ascertaining how long the third
respondent would be detained upon the applicant; found
that the fact
that the initial and post-dismissal decision to dismiss were taken by
the chairperson created the perception of bias
and produced an award
that is accordingly unjustifiable in that it bears no rational
connection to the evidentiary material before
him.
19. In
finding that the third respondent’s dismissal was substantively
unfair, the commissioner misconducted himself, committed
a latent
gross irregularity and/or exceeded his powers in that he:
19.1
not reasonably and/or unfairly and/or unjustifiably concluded that
the applicant had not properly taken
into account the fact that the
third respondent had no control over the circumstances and duration
of his absence;
19.2
not reasonably and/or unfairly and/or unjustifiably concluded that
the dismissal was unfair because
there was no evidence to suggest
that the third respondent was occupying such a key position in that
the applicant that necessitated
his dismissal within ten days;
19.3
not reasonably and/or unfairly and/or failed unjustifiably to attach
sufficient weight to the fact
that the applicant could not have been
expected to hold the third respondent’s position open for him
indefinitely or for
an extended period of time which his absence
amounted to;
19.4
not reasonably and/or unfairly and/or unjustifiably and erroneously
concluded that the applicant’s
decision to dismissal was
substantively unfair; and
19.5
produced an award that is not reasonable and/or unfair and/or
unjustifiable in that it bears no rational
connection to the
evidentiary material before him.
20.
The commissioner’s award of reinstatement is not reasonable
and/or unfair and/or unjustifiably reflecting the commissioner’s
failure to apply his mind to the evidence and law for the following
reasons:
20.1
the award does not reflect that the commissioner attached any weight
to the period of the third respondent’s
absence and the fact
that he was, by reason of his detention, incapable of performing his
duties at his workplace for an extended
period of time;
20.2
the commissioner concluded in his findings that it would have been
fair to re-employ the third respondent
from the date of his post
dismissal hearing but proceeds unjustifiably and without any reasons
being provided, to award the third
respondent’s reinstatement
from 2 November 2006;
20.3
the commissioner failed to find that it was incapacity which led the
third respondent to be unable
to tender his services with the
applicant by virtue of his detention and that given the period of
such incapacity and the effect
thereof upon the applicant,
reinstatement was inappropriate in the circumstances.
Analysis of the
facts and arguments raised
21. It
is common cause that the third respondent had failed to report for
work for about 137 days after he had been arrested on
suspicion of
robbery. He had notified the applicant of his arrest on the day
of his arrest and the applicant was informed
of further developments
until the third respondent was released. It is common cause
that he was unable to report for work
during his incarceration and
that while he was in prison, the applicant went on with a
disciplinary enquiry and dismissed him in
his absence. Upon his
release a post dismissal hearing was convened where he was charged
with operational incapacity which
is a charge that does not exist at
the applicant. He was found guilty and was dismissed.
22.
Section 188(1) of the Act deals
inter
alia
with dismissals related to the
employee’s conduct or incapacity. The onus is on the
employer to prove that the dismissal
was for a fair reason and that
it was effected according to a fair procedure. Section 188(2)
requires any person considering
whether or not the reason for
dismissal is a fair reason or whether the dismissal was effected
according to a fair procedure to
take into account any relevant Code
of Good Practice issued in terms of this Act.
23.
Item 10 of Schedule 8 deals with Incapacity: Ill health or injury.
It provides as follows:
10(1)
Incapacity on the grounds of ill health or injury may be temporary or
permanent. If an employee is
temporarily unable to work in
these circumstances, the employer should investigate the extent of
the incapacity or the injury.
If the employee is likely to be
absent for a time that is unreasonably long in the circumstances, the
employer should investigate
all the possible alternatives short of
dismissal. When alternatives are considered, relevant factors
might include the nature
of the job, the period of absence, the
seriousness of the illness or injury and the possibility of securing
a temporary replacement
for the ill or injured employee.
In cases of permanent incapacity, the employer should ascertain the
possibility
of securing alternative employment, or adapting the
duties or work circumstances of the employee to accommodate the
employee’s
disability.
10(2)
In the process of the investigation referred to in subsection (1) the
employee should be allowed the opportunity
to state a case in
response and to be assisted by a trade union representative or fellow
employee.
10(3)
The degree of incapacity is relevant to the fairness of any
dismissal. The cause of the incapacity
may also be relevant.
In the case of certain kinds of incapacity, for example alcoholism or
drug abuse, counselling and rehabilitation
may be appropriate steps
for an employer to consider.
24. It
is clear from the above that the Act recognises two types of
incapacities. The first relates to ill health and the
second to
injury. Operational incapacity is not recognised in our law and
if it did exist it must surely be related to ill
health or injury.
An employer, before dismissing an employee for incapacity, must
follow the procedures outlined in paragraph
27 above.
25.
The commissioner’s award and remarks should be considered in
the light of his analysis of the applicant’s contention
that
the third respondent was dismissed for operational incapacity.
I do not believe that the commissioner has committed
a reviewable
irregularity as contended by the applicant. The third
respondent had been dismissed for operational incapacity.
For
the applicant to succeed on this ground, the requirements for
incapacity as referred to in paragraph 27 above must be met by
the
applicant. What the commissioner said was that one of the
requirements would be the duration of the incapacity
which in this
case would be his imprisonment. The commissioner did not agree
that the applicant could have used incapacity
but that if this was
used, the requirements would have to be complied with.
26. It
is clear from the applicant’s letter dated 30 May 2006 that the
reason given for the termination of the third respondent’s
services was that he was in breach of his contract of employment
since he was physically unable to tender his services. He
was
informed that a post dismissal hearing would be held on his return to
work to establish if he had a valid reason for his absence.
He
was therefore not dismissed for the applicant’s operational
incapacity but due to his absence. The purpose of the
post
dismissal hearing was to ascertain whether he had a valid reason for
his absence.
27. It
is trite that supervening impossibility is a defence to breach of
contract which would also include the employment contract.
Where the employee is the cause of his absence from work, it appears
that his service may be terminated. Where it is a factor
beyond
his control like an unlawful arrest which either leads to his
acquittal or withdrawal of the charges, it cannot be said
that the
employee was absent without permission. It will not be clear
what an employee would be guilty of if he is
arrested which
caused his absence from work. He surely cannot obtain the
employer’s permission to be absent from work
under those
circumstances.
28.
The third respondent clearly raised a defence of supervening
impossibility. The onus was therefore on him to prove that
the
failure to perform in terms of his contract of employment was as a
result of a superior force, in this instance the SAPS, for
which he
was not to blame. It is not clear what misconduct he was guilty
of since he was not the cause of his incarceration.
It was a
factor beyond his control and it could therefore not be said that he
had been absent without permission. He was
not the author of
his own misfortune. Since he had a valid reason for his
absence, he had to be reinstated with loss
of income. See
Trident Steel (Pty) Ltd v Commission for
Conciliation, Mediation & Arbitration & Others
(2005)
26 ILJ 1519 (LC). Revelas J at page 1522 of the said judgment
states what alternatives an employer has in such cases.
This is
equally applicable to the applicant.
29. It
is trite that the decision that the commissioner arrived at must be
one that a reasonable decision maker would have made.
In this
regard see
Sidumo and Another v
Rustenburg Mines Ltd and others
(2007)
28 ILJ 2405 (CC). I have carefully considered the
commissioner’s arbitration award. The commissioner as
required in terms of section 138(7)(a) of the Act, had to give brief
reasons for the award that he made. This is precisely
what the
commissioner did. The commissioner’s award is well
reasoned. He dealt with all the issues that arose
in the
matter. It can therefore not be said that the commissioner committed
any reviewable irregularity. His decision
is one that a
reasonable decision maker would have made. His award is lawful,
reasonable and procedurally fair. He had decided
the issue on
the basis of his own sense of fairness. It is reasonable
and meets the constitutional requirement that
an administrative
action must be reasonable.
30.
The application stands to be dismissed. There is no reason why
costs should not follow the result.
31. In
the circumstances I make the following order:
31.1
The application is dismissed with costs.
FRANCIS
J
JUDGE OF THE LABOUR
COURT OF SOUTH AFRICA
FOR
THE APPLICANT
:
ATTORNEY E S MAKINTA
FOR THIRD
RESPONDENT
:
A MOSAM
INSTRUCTED BY HAFFEGEE SAVAGE ATTORNEYS
DATE
OF HEARING
: 25 JUNE
2008
DATE OF
JUDGMENT
: 1 JULY
2008