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[2009] ZALCJHB 34
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Khulani Fidelity Services Group v Commission for Conciliation Mediation and Arbitration and Others (JR783/07) [2009] ZALCJHB 34 (3 February 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR 783/07
In
the matter between:
KHULANI
FIDELITY SERVICES
GROUP
APPLICANT
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
1
ST
RESPONDENT
COMMISSIONER
JSC NKOSI
N.O.
2
ND
RESPONDENT
PTWU
OBO SHARON SIBEKO
3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application in terms of which
the Applicant seeks an order to review and set aside the arbitration
award issued by the
Second Respondent (the Commissioner) under case
number GAJB 14275-06.
[2]
The Applicant has also applied for the
condonation for the late filing of this review application. The
application was 5 (five)
days late and the reasons for the lateness
has to do with the attempts at negotiating a settlement of the
outcome of the arbitration
hearing. I see no reason why condonation
should not be granted in the light of the explanation and the short
period of the delay.
[3]
Accordingly the late filing of the review
application is condoned.
Background facts
[4]
The employee who prior to his dismissal was
employed as a security officer was dismissed by the Applicant for
absconding from her
job.
[5]
The employee testified that she received a
final written warning on the 24 May 2006 and was thereafter
instructed to report at a
site in Springs starting from the 1 June
2006. Because she fell sick on the 1
st
June 2006 she did not report for work but attended at the local
clinic for medical attention. She sent the medical certificate
she
received from the clinic to the Applicant through a fellow employee.
[6]
The employee was surprise to receive a
letter indicating that she was dismissed because she had absconded.
The same was told to
her when she reported for work on the 2
nd
June 2006. She was also told on that day not to report for duty
anymore. She then referred a dispute to the First Respondent (the
CCMA) which could not be resolved by conciliation and accordingly the
matter was referred to arbitration.
[7]
The case of the Applicant is that it has a
computer system which automatically dispatches off a telegram when an
employee is absent
from work for more than 4 (four) days indicating
that he or she has absconded. According to the Applicant because the
employee
failed to report at work for 4 (four) days, she received a
telegram on the 31
st
May 2006 which read as follows:
“
PLEASE
REPORT TO THE FSSS EAST RAND OFFICE WITHIN 48 HOURS.”
[8]
On the same day 31
st
May 2006, the branch manager of the Applicant issued a letter
indicating that the employee should report for duty at the site at
the Department of Home Affairs on 1
st
June 2006, failing which desertion procedures would be invoked. The
relevant part of this letter reads as follows:
“
To: Me S
Sibeko co. no […]
Cc: Mr Mickey Bartmann
Mr Mike Kotrze
Subject Re: Outcome
of Disciplinary enquiry
1.
Please note that employee Shoron Sibeko co no […] was
given a final written warning.
2.
The client ‘All Pay” ABSA also issued a letter
stating that she is not allowed to work for “All Pay any more
due
to being negligent with the firearm.
3.
Therefore the employee has to be posted at a normal grade C
site. (the site, which has been allocated to her, is on
Department
of Home Affairs Springs). She is to report for duty at 0
6h00 on 01 June 2006 at the site; address follows: …
To date she has not
reported for duty and should she not report for duty on 01 June 2006
absconding procedures will be implemented.
I trust you will find
the above in order.”
[9]
The disciplinary hearing against the
employee which was held on the 12
th
June 2006 was conducted in the employee’s absence. She was
advised of her dismissal in the letter dated 12 June 2006. The
relevant part of this letter reads as follows:
“
Disciplinary
outcome for Sharon Sibeko
1. Disciplinary
outcome was given on 29/05/06. She was told to report to Mr Kotze for
duty immediately, which she never did.
2. On 31 May
2006 a Union official phoned mike Kotze, he told her that she (S
Sibeko) was supposed to report for duty on 30
May 2006.
3. A letter was
faxed to the Union on 31/05/2006 …
4. 2 June 2006-
An All Pay member brought a sick note to Mr Kotze advising that she
had attended a clinic on 01/06/06 –
not booked off.
5. She never
returned or informed the company or her supervisor about he r
whereabouts.
6. Personal
Department sent 2 telegrams:
1
st
one:
informing her to report to the office within 48 hours;
2
nd
one:
informing her that her services had been terminated;
Nothing was reported
to the company about her whereabouts.
7. On 12/06/06
Mrs Sibeko brought me Lucas Pagel a sick note for the 8+ 9 June 2006-
see copy attached. She asked for a copy
and [sic] told he to go to
the Personnel Department in Robertsville”
[10]
The version of the Applicant during the
arbitration hearing was that the employee failed to report for duty
for 4 (four) conservative
days resulting in a telegram being
dispatched to her. The employee was then informed of her dismissal
having failed to attend the
disciplinary hearing despite being duly
notified.
Grounds for review
and the award
[11]
In its founding affidavit the Applicant
contended that because the Commissioner failed to apply his mind, his
decision was unreasonable
and constituted gross irregularity. This
complaint is based on the averments that the Commissioner failed to
consider the oral
evidence; the written arguments submitted by
Applicant and relied on “
evidence”
not presented in the hearing.
[12]
The Applicant contended that the employee
had repudiated her employment because of the unreasonable period of
his absence from work.
[13]
The Commissioner in his award found that
the respondent in dismissing the employee relied on circumstantial
evidence which was inconsistent.
He further found that the Applicant
issued two notices of dismissal, one on the 6
th
and the other 12
th
June 2006. He also found that the Applicant dismissed the employee
for desertion despite the submission of the sick notes.
Evaluation of the
award
[14]
In my view the Applicant’s
application stands to be dismissed because the Commissioner’s
decision can not be faulted
for unreasonableness. The conclusion of
the Commissioner is reasonable and meets the standard set out in
Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others (2007) 28 ILJ 2405 (CC)
.
The test for review as set in
Sidumo
,
is that of having to determine whether or not the conclusion of the
Commissioner is one which a reasonable decision-maker could
not have
reached.
[15]
Desertion consists of absence without
authorisation by the employee, with the intent to remain permanently
away from his or her
employment. The intent can generally be
inferred from the circumstances of the absence of the employee. The
period of absence
and the surrounding circumstances can serve as an
indication of the intention not to continue with the contract of
employment.
[16]
In general, a short period of absence may
not be sufficient to establish evidence of the intention not to
continue with the employment
contract. In other words a short period
of absence without authorisation may not depending on the
circumstance of the case constitute
repudiation of the contract by
the employee. However, and again depending on the circumstances of a
given case, prolonged absence
may serve as evidence of desertion
particularly where the employee wilfully terminates communication
with the employer during the
period of absence.
[17]
In
SA
Broadcasting Corporation V Commission for Conciliation, Mediation &
Arbitration & Others (2001) 22 ILJ 487 (LC)
,
the respondent employee who had been employed by the SABC was
dismissed but subsequently the dismissal was withdrawn. A meeting
took place between the employee and management on 26 November 1997.
The employee was orally instructed to resume work. The employee
was
of the view that in terms of his reinstatement he was entitled to
wait for a written instruction to resume work before doing
so. And
therefore he did not return to work. The SABC addressed several
letters to him warning him that he was obliged to report
for duty. He
was finally given an ultimatum that he would be regarded as having
absconded if he did not return to work on 5 December.
Subsequently,
on 12 January 1998 the SABC terminated his services without holding
an enquiry into his desertion. The employee referred
a dispute to the
CCMA concerning his alleged unfair dismissal. The Commissioner found
that the employee had been unfairly dismissed
and rendered an award
in his favour. The SABC sought to set it aside the award on review.
[18]
The court considered the SABC's contention
that it had not dismissed the employee and held that the act of
desertion does not terminate
the contract but the acceptance thereof
does. In other words the termination occurs once the repudiation is
accepted by the employer.
The same approach was adopted in
SACWU
v Dyasi
[2001] 7 BLLR 731
(LAC)
,
where the Court held that desertion amounts to repudiation of the
contract of employment which the employer is entitled to accept
or
reject The acceptance of repudiation amounts to dismissal if employee
once again tenders service.
[19]
The Court went further in the
SABC’s
case to say:
“
The
real problem arises from circumstances of unexplained absence. Mere
absence is no more conclusive evidence of desertion (which
is absence
plus an intention not to return), than it is evidence of wilful
absence without leave (which axiomatically includes
an intention to
return, albeit at a time of the employee's choosing). The means by
which the employer established the existence
or absence of the
intention to return is the critical point of the debate. What
constitutes desertion is of course a matter of
fact. In some
instances an unexplained absence for a reasonable period, that is to
say, reasonable in relation to the employer's
operational
requirements, will establish the fact of desertion.”
[20]
In the present instance the Commissioner
reached the conclusion that the Applicant had dismissed the employee
and that the dismissal
was substantively unfair. In arriving at this
conclusion the Commissioner took into account the facts and the
circumstances of
this case. He reasoned that it could not be said
that the employee had the intention not to return to her employment
in the light
of her submission of the medical certificate which
explained her absence for the 8
th
and 9
th
June 2006. The employee also reported for work on the 2
nd
June 2006 and also informed one of her senior about the reason for
her absence.
[21]
The issue in this matter is not whether the
conclusion of the Commissioner is correct but whether it is
reasonable. In my view the
Commissioner arrived at the conclusion
that there was an unfair dismissal after applying his mind to the
facts and circumstances
of the case. In this regard the Commissioner
correctly applied the principle applicable when dealing with a case
of absconding
by the employee. As indicated earlier the Commissioner
found that there was no evidence of intention to terminate the
contract
of employment by the employee. She had submitted the medical
certificate which is acknowledged by the Applicant and she reported
for work on the 12
th
June.
[22]
In the circumstances the review application
of the Applicant stands to be dismissed. In the circumstances I see
no reason why costs
should not follow the result.
[23]
The application to review and set aside the
arbitration award issued by the Second Respondent under case number
GAJB 14275-06 is
dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
29
th
July 2008
Date
of Judgment :
3
rd
February 2009
Appearances
For
the Applicant :
Adv Van Ass
Instructed
by :
Blake Bester Incorporated
For
the Respondent: Mr K
Allardyce of Allardyce & Partners