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[2008] ZALCD 2
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Early Bird Services v Commission For Conciliation, Mediation And Arbitration and Others (D30/03) [2008] ZALCD 2 (6 February 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO: D30/03
In
the matter between:
EARLY
BIRD SERVICES
APPLICANT
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION FIRST
RESPONDENT
COMMISSIONER
L.M.
EPSTEIN SECOND
RESPONDENT
MANIVASEN
PILLAY
THIRD
RESPONDENT
JUDGMENT
Pillay
D, J
In this review the
employee, the 3
rd
respondent, was found guilty of the following charges and dismissed:
“(1) taking unauthorised leave from 22 October 2001
to 21
November 2001; (2) taking a half day’s leave on 21
November 2001 without authorisation; (3) insubordination,
disrespect and defiance of authority arising out of the above two
charges.”
The
arbitrator found the employee guilty on the second charge. From his
findings that the employee’s dismissal was substantively
unfair, that the employee’s version was credible and that he
would not have endangered his employment of 12 years,
the
Court infers that the arbitrator found the employee not guilty on the
first charge.
The
credibility of witnesses for both parties were at issue. In a
review the Labour Court is usually slow to interfere with
an
arbitrator’s finding of credibility. However, having read the
record, the Court does not understand the employee to say
that he
received written authorisation to be on leave.
His
evidence was that the written authorisation was “somewhere”
(page 155, line 15 of the transcript, volume 2), that
he was sure it
was at head office (page 156, line 2 of transcript, volume 2) and
that he was actually waiting for his copy (page
155, line 8 of
transcript, volume 2).
The
Court deduces from his evidence that the employee assumed that the
leave authorisation had been issued but had not yet been
given to
him. The arbitrator’s finding that the employee received
it is not supported by the evidence. The arbitrator’s
credibility finding against the employee on this issue is therefore
not well founded.
The
gist of the employer’s evidence was that it had not issued any
authorisation, written or verbal. Mr
Schumann
for the employer submitted that Mr Wright was not authorised to grant
the employee leave. As the employee claimed that Mr
Wright had
authorised his leave, his leave was not properly authorised.
Mr
Schumann
submitted from the bar that the rationale for the formality of
granting leave was firstly, to ensure that the employee was entitled
to leave and, secondly, that it was operationally feasible. If
there were operational reasons for refusing leave, they do
not emerge
from the evidence.
Mr
Schumann
laboured the point that Mr Wright was not authorised to grant the
employee leave. As the employee claimed that Mr Wright
had
authorised his leave, his leave was improperly authorised. So
submitted Mr
Schumann
for the employer.
Mr
Wright’s authorisation was indispensable to the granting of
leave. That was the evidence from the employer’s
documents at B22 and B24. If Mr Wright granted the leave, then
the Human Resources Department had to complete the formality
of
ensuring that the employee was entitled to leave.
The
Court is unable to say from the papers whether Mr Wright granted or
refused leave. The Court has to defer to the arbitrator’s
findings in this regard. The Court must therefore accept the
arbitrator’s credibility finding against Mr Wright that
he told
the employee that he refused to authorise his leave.
The
employee’s version was that he was repeatedly told that the
Bargaining Council had to pay for his leave before he can
take it.
The employee ensured that he received the leave payment before he
renewed his application for leave to Mr Wright.
The employer’s
reason for denying him leave had therefore fallen away. If
there was any other reason for refusing him
leave, that was not
disclosed during the arbitration.
The
Court finds that the employee was not issued with written
authorisation to go on leave, but that Mr Wright may have told him
that he could go on leave. Mr Ehlers’ visit to the
employee at his home suggested that the employer did not want the
employee to go on leave and revoked any permission that Mr Wright
might have granted.
The
employer’s refusal to authorise the employee’s leave must
be considered in the context that the employer wanted
to get rid of
the employee. The arbitrator correctly assessed the employer’s
conduct against its purported notice to
retrench the employee and its
invitation to him to consider being medically boarded. His finding
that the employer was intent on
terminating the employee’s
services is well supported by the evidence.
This
intention also impaired the credibility of the employer’s
witnesses. By issuing the handwritten notice of retrenchment
document B27 about the same time as the notice to attend the
disciplinary inquiry, by following that retrenchment letter with a
formal letter in terms of section 189 (3) of the Labour Relations
Act, by serving that notice on 4 December 2001, a day before
the
employee’s disciplinary hearing, by inviting the employee to
consult about this retrenchment on 6 December 2001, and
finally, by
selecting the employee as the only person affected by the
retrenchment, accumulatively suggested that the employer
not only
constructed a paper trail to back up its decision to get rid of the
employee but also invoked retrenchment as another
basis to get rid of
him.
The
arbitrator’s suspicions about the employer’s notice were
also fortified by the employer advertising for posts that
could have
been filled by the employee, if necessary with training, and at the
same time purporting to retrench the employee.
In
the circumstances, the employer’s refusal to grant the employee
leave and its decision to dismiss the employee were tainted
by an
improper motive to get rid of the employee on any basis. Even
if the employee took unauthorised leave, he should not
have been
dismissed. The employer’s own conduct in refusing to grant him
leave and in dismissing him were not justified.
In
the circumstances
THE APPLICATION FOR A
REVIEW IS DISMISSED WITH COSTS
.
____________
Pillay
D, J
Date:
APPEARANCES
For
the Applicant:
MR SCHUMANN
For
the Respondent:
MS J MOODLEY
IN
THE HIGH COURT OF SOUTH AFRICA
DURBAN
AND COAST LOCAL DIVISION
HELD
AT DURBAN
CASE
NO : D30/03
DATE
: 6.02.08
EARLY
BIRD SERVICES
:
APPLICANT
And
CCMA RESPONDENT
BEFORE
THE HONOURABLE MADAM JUSTICE PILLAY
ON
BEHALF OF APPLICANT
:
MR SCHUMANN
ON
BEHALF OF RESPONDENT
:
MS J MOODLEY
REPORT ON
RECORDING
Clear recording.
Directors
H
I Anglia, Ms G Gumede, Moses Tembe
Ms
L B van den Heever BA (MW) (CEO, J L van Tonder CA (SA), L.G. van
Tonder
TRANSCRIBER’S
CERTIFICATE
This
is, to the best abilities of the transcriber and proofreader, a true
and correct transcript of the proceedings,
where
audible
, recorded by means of a
mechanical recorder in the matter:
EARLY
BIRD SERVICES v CCMA
CASE
NO
:
D30/03X
COURT
OF ORIGIN
:
MOTION COURT
TRANSCRIBER
:
ANNE VAN RENSBURG
DATE
COMPLETED
:
31 MAY 2008
NO
OF TAPES/CD’S
:
1 CD
NO
OF PAGES
:
6
Directors
H
I Anglia, Ms G Gumede, Moses Tembe
Ms
L B van den Heever BA (MW) (CEO, J L van Tonder CA (SA), L.G. van
Tonder