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[2009] ZALCJHB 36
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Masoeu v Commission for Conciliation Mediation And Arbitration and Others (JR792/09) [2009] ZALCJHB 36 (15 September 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT REPORTABLE
CASE
NO: JR792/09
In
the matter between:
GOODMAN
THABISO MASOEU
APPLICANT
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
1
ST
RESPONDENT
COMMISSIONER
BONGE T
MASOTE
2
ND
RESPONDNET
SHOPRITE
CHECKERS (PTY)
LTD
3
RD
RESPONDENT
JUDGMENT
Molahlehi J
Introduction
[1]
The applicant has requested reasons for the
order made by this Court on 20
th
August 2009, in which his application to review the arbitration award
issued under case number GAJB 38267-08 dated 25
th
March 2009 was dismissed. In terms of the arbitration award the
commissioner found the dismissal of the applicant to have been
both
procedurally and substantively fair.
Background facts
[2]
The applicant was prior to his dismissal on
18
th
December 2008 employed by the third respondent as a baker. The
applicant was dismissed from the employ of the third respondent
for
absconsion.
[3]
The applicant’s case was that his
dismissal was procedurally unfair because he was not given an
opportunity to state his side
of the story. Secondly, that he did
contact the third respondent regarding his absence but was dismissed
by the third respondent
without being given an opportunity to present
his case at a disciplinary hearing.
[4]
The third respondent’s case at the
arbitration proceedings was that the applicant was away from work
between the period 10
th
November 2008 and 18
th
December 2008 and failed to contact the third respondent and inform
it about his whereabouts. Secondly that the applicant failed
to
inform the third respondent about his whereabouts even after he had
been asked to do so through telegrams dated 11
th
December 2008, 12
th
December 2008 and 15
th
December 2008 respectively.
Grounds for review
and arbitration award
[5]
The first attack on the award relates to
the allegation that the commissioner arrived at a wrong conclusion
because she failed to
apply her mind to the evidence and the material
presented to her during the arbitration proceedings. In this respect
the applicant
contends that based on the contradictory evidence
presented by the third respondent the commissioner failed to
appreciate her role
in that she used contradictory evidence of third
respondent.
[6]
The applicant contends that during the
arbitration proceedings the third respondent said that the first time
it heard about his
whereabouts since his disappearance was when the
applicant referred the dispute to the CCMA whereas the third
respondent’s
witness conceded during cross-examination that he
was informed that the applicant reported for duty on the 22
nd
December 2008.
[7]
The second attack on the arbitration award
relates to the allegation that the commissioner committed gross
misconduct or irregularity
in the conduct of the arbitration process
in the sense that the she misdirected herself as to the onus of
proof.
[8]
The third attack on the award relates to
the allegation that the commissioner exceeded her powers by failing
to consider relevant
items in the Code of Good Practice. In this
respect the applicant complains is that not all employees were
dismissed following
their absence from work.
[9]
The commissioner in her brief analysis of
the evidence and submissions by the parties found that the third
respondent had discharged
its onus of proving that the dismissal was
procedurally fair after having found that it was clear that the
applicant waived his
right to state his case because he did not
contact the person he was called upon to contact in the telegrams
sent to him.
[10]
The dismissal of the applicant was also
found to be substantively fair in that the applicant was found to
have breached rule 5 of
the rules applicable at the third
respondent’s work place in that he was absent for the period
10
th
November 2008 to 18
th
December 2008, which amounts to 38 days without authorization or
verifiable reasons. Further that the applicant failed to inform
the
third respondent about his whereabouts even after he was asked to do
so through three telegrams.
The test for review
[11]
The test for review is set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ
2405 (CC).
The enquiry in the
reasonable decision-maker test is to determine whether the decision
reached by the commissioner is one which
a reasonable decision maker
could not reach. In assessing the reasonableness of the award the
Court takes into account the material
evidence which was before him
or her during the arbitration proceedings.
[12]
In
Fidelity
Cash Management Services v Commission for Conciliation, Mediation and
Arbitration and others
[2008] 3 BLLR 197
(LAC),
the Court emphasized that the reasonable decision maker’s test:
“…
is
a stringent test that will ensure that such awards are not lightly
interfered with. It will ensure that, more than before, and
in line
with the objective of the Act and particular the primary objective of
the effective resolution of disputes, awards of the
CCMA will be
final and binding as long as it cannot be said that such a decision
or award is one that a reasonable decision-maker
could not have made
in the circumstances of the case. It will not be often that the
decision of the arbitration award of the CCMA
is found to be one that
a reasonable decision-maker could not, in all circumstances, have
reached.”
Evaluation
[13]
The applicant testified during the
arbitration proceedings that his absence and failure to inform the
third respondent about it,
was necessitated by the death of his
brother and the fact that he was responsible for arranging his
burial. In my view, the commissioner
correctly rejected the
applicant’s testimony in this regard and found that it would
have taken the applicant less than five
minutes to call the third
respondent to inform it about the death of his brother. Further, that
the employee could not provide
the date on which his brother passed
away, the date of his burial and could also not produce a death
certificate.
[14]
The applicant further testified during the
arbitration proceedings that he did contact the third respondent when
he called his supervisor
Mr Ndlovu on 1
st
December 2008, to inform him about the reason why he did not report
for duty. The applicant contended that he was told by Mr Ndlovu
that
the third respondent had declared his as a deserter. The commissioner
again rejects the applicant’s testimony in this
regard based on
the fact that the third respondent only took the decision to declare
the applicant a deserter on the 15
th
December 2008, after it had previously sent two telegrams to him
asking about his whereabouts and the reasons for his absence.
[15]
The commissioner further found that the
applicant was aware of the rule dealing with steps that an absent
employee is required to
take and that the rule was fair, valid and
reasonable.
[16]
During the hearing of this application the
applicant conceded to the substantive fairness of his dismissal but
persisted that it
was procedurally unfair.
[17]
It is common cause that employees charged
with absenteeism must generally be given an opportunity to explain
their absence. This
applies also to employees who have been absent
for a period deemed by the employer’s disciplinary code to
amount to desertion.
See
John Grogan
Workplace Law Ninth Edition page 185.
In
SA Broadcasting Corporation v Commission
for Conciliation, Mediation and Arbitration and others (2001) 22 ILJ
487 (LC),
this Court held that:
“
[13]
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 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. In the instance
of an employee who remains away from the workplace
and whose
whereabouts are not known and who is out of reach of the employer, it
is plainly impractical to impose upon an employer
the obligation to
convene a disciplinary enquiry before reaching the conclusion that
the fact of desertion has occurred and in
consequence of which it is
entitled in response thereto to elect to terminate the contract.
[18]
Whether or not an employer should convene a disciplinary enquiry
before taking a decision to dismiss, is dependent
on the relevant
circumstances and the practicality of so doing...”
[18]
It is clear from the record that on the
22
nd
December 2008, when the applicant resurfaced on the third
respondent’s workplace allegedly for duty, his services had
been
terminated already by a telegram dated 18
th
December 2008 after the employee had failed to respond to 3 (three)
previous telegrams sent by the third respondent before asking
about
his whereabouts.
[19]
In this regard and based on the authorities
quoted above I am unable to agree with the contention of the
applicant that the commissioner
failed deal with the material
evidence which was before her. I am unable to agree with the
contention of the applicant that the
commissioner committed gross
irregularity or exceeded her powers. Accordingly, I am of the view
that the arbitration award of the
commissioner cannot be faulted for
being unreasonable.
[20]
It was on the basis of the above discussion
that I made the order as follows:
“
1.
The review application is dismissed.
2.
There is no order as to costs.”
_______________
Molahlehi
J
Date
of Hearing :
20
th
August 2009
Date
of Judgment :
15
th
September 2009
Appearances
For
the Applicant :
Mr Goodman Masoeu (in person)
(Unopposed
matter)