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[2010] ZALCJHB 54
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Polymark Recycling (Pty) Ltd v Mohulatsi and Others (JR511/08) [2010] ZALCJHB 54 (19 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR511/08
In
the matter
between:
POLYMARK
RECYCLING (PTY)
LIMITED
Applicant
and
STOFFEL
MOHULATSI
First
Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Second
Respondent
NUMSA
obo
DIBAKWANE
Third
Respondent
JUDGMENT
TIP AJ:
[1]
Mr Jabu Dibakwane was employed by the
applicant until his dismissal on 25 April 2007. The dismissal
was contested on both
procedural and substantive grounds and referred
to the CCMA, where it came before the first respondent for
arbitration. He
found that the dismissal had been unfair on
both counts and ordered the reinstatement of Dibakwane. The
applicant is dissatisfied
with a number of aspects of this award and
has accordingly instituted the current review proceedings.
[2]
The essential chronology of the relevant
events may be summarised as follows:
[2.1]
As at 14 February 2007 Dibakwane was
working as the operator of an extrusion machine. On that day,
according to him, the machine
emitted a cloud of black smoke which
affected his lungs.
[2.2]
On the following day he was referred by the
applicant to a doctor, at the company’s expense, this being Dr
Du Plessis.
Dr Du Plessis issued a note confirming that he had
examined Dibakwane who had complained that his lungs were sore and
that they
were not working well (“
nie
genoeg pomp nie”
). It notes
that Dibakwane said that this was because of his work. Dr Du
Plessis recorded that Dibakwane was a smoker
and, more pertinently,
that there was nothing wrong with his lungs. The medical note
concludes with the observation that
he, Dibakwane, was fit for work.
[2.3]
Dibakwane continued to complain and was
advised by the company that, if he were not in agreement with the
result of the examination
by Dr Du Plessis, he should obtain a proper
medical assessment from his own doctor. Although Dibakwane
testified that he
did not have funds to do this, it is also on record
that he did not approach the company at any time for financial
assistance in
this regard.
[2.4]
Without securing prior permission,
Dibakwane then took time off from work to attend the Brits Hospital
and, as referred by it, to
a clinic in Oukasie. This was done
on 3 March 2007 and 5 March 2007. There are two notes from the
clinic and one from
the Brits Hospital. The latter notes
“
chronic coughing”
,
but the other two merely record that he attended the clinic.
There is no diagnosis and no indication of any treatment.
[2.5]
Notwithstanding reminders on the part of
the company, Dibakwane took his medical assessment situation no
further. For its
part, the company clearly remained of the view
that Dibakwane had taken days off work under the false pretence that
he required
medical treatment.
[2.6]
After some time had passed, he was issued
with a notice that he was to attend a disciplinary hearing on 30
March 2007 on charges
of absenteeism.
[2.7]
Conflicting versions were placed before the
arbitrator in respect of the events of 30 March 2007. According
to the company,
the only disciplinary hearing which it had scheduled
for that day was in respect of Dibakwane. After he did not show
up,
the hearing was postponed. Dibakwane’s version is
that he did attend, that he waited whilst other hearings were being
attended to, and that the company personnel then left without
attending to his hearing, whereupon he similarly left the company
premises. It is to be noted that 30 March 2007 was one of his
days off.
[2.8]
Further charges arose in respect of the
night shift of 16 to 17 April 2007. Dibakwane was on duty.
According to his
supervisor, Mr Mphuthi, he found Dibakwane asleep on
two occasions and when he, Mphuthi, requested Dibakwane to relieve
the operator
on the extrusion machine, Dibakwane refused to do so.
This necessitated the closing down of the production whilst the
operator
was given a break. Ordinarily, according to the charge
sheet, production would have continued on the basis that Dibakwane
would have operated the machine for the time necessary.
[3]
A fresh notice to attend a disciplinary
hearing was issued on 19 April 2007. As noted thereon
and as confirmed in
the evidence, Dibakwane refused to take receipt
of the notice, although he was informed of the content. It is
also so that
a shop steward did receive the notice. There is no
dispute that Dibakwane was aware that the hearing was to take place.
The charges incorporated those postponed on the previous occasion and
in aggregate amounted to the following:
[3.1]
his failure to attend the disciplinary
hearing scheduled for 30 March 2007, without informing the
employer;
[3.2]
absenteeism on 3 March 2007 and 5 March
2007;
[3.3]
sleeping on duty on 16 April 2007;
[3.4]
gross insubordination and serious
disrespect or impudence on 16 April 2007 by not doing what the
supervisor told him to do; and
[3.5]
being absent from work on 15 February 2007
while pretending to be ill.
[4]
One of the grounds of review advanced by
the applicant concerns the arbitrator’s treatment of the fact
that the employee did
not attend the disciplinary hearing on 24 April
2007. In essence, the arbitrator took up the position that
because it was
an off day there was no need for Dibakwane to attend,
in the absence of that having been negotiated and agreed with him by
the
employer. Plainly, he considered it a right on the part of
the employee to refuse to attend a hearing on any day other than
a
working day. In reaching this conclusion, the arbitrator failed
to give proper regard to a number of factors, such as:
[4.1]
the evidence that the applicant runs a
continuous operation described as “
24/7”
,
with employees working 4 days on and 2 days off;
[4.2]
external chairpersons for disciplinary
hearings are engaged and matters are set down for hearing in
accordance with the availability
of such persons;
[4.3]
it has been the applicant’s practice
for some time that disciplinary matters are dealt with in this way;
[4.4]
Dibakwane himself did not rely on the
notion of an off day as a full justification for his failure to
attend; indeed, Dibakwane
on his version (which is contested by
the applicant) attended the hearing on 30 March 2007 notwithstanding
that that day, too,
was for him an off day;
[4.5]
the primary reason advanced by Dibakwane
for not attending on 24 April 2007 was that his shack had been badly
damaged by a strong
wind and he wanted to do some repairs;
[4.6]
in that regard, the evidence is that
Dibakwane did not convey this to the applicant and did not seek to
have the hearing postponed
on that basis; indeed, the version
that his shack had required his attention surfaced for the first time
at the arbitration
itself and not at any of the earlier stages of the
disciplinary process;
[4.7]
the applicant had made it clear to
Dibakwane that his transport costs to attend the hearing would be
covered and that he would be
remunerated for the time that he spent
at the company for that purpose.
[5]
In general, it seems to me, an employer is
entitled to schedule disciplinary hearings at a time suitable to it,
provided that this
does not create unfairness for the employee.
Where an employee does not raise a particular objection to a
scheduled date
and time, such employee can hardly thereafter contest
the fact that the hearing took place in his absence. No
authorities
directly in point with the present facts were cited to
me. However, some guidance may be obtained from the decision of
the
Labour Appeal Court in
CEPPWAWU &
others v Metrofile (Pty) Ltd
[2002] ZACC 30
;
[2004] 2
BLLR 103
(LAC) at para
[54]
and [55] where it was held that an
employer can institute disciplinary proceedings against employees
engaging in misconduct in
the course of protected strike action.
Put differently, the mere fact that employees were not at work in the
ordinary way
was no bar to disciplinary proceedings taking place.
See the passages in question:
“
[54]
An employer has the right to institute disciplinary action at any
time against employees engaging in misconduct particularly of a
criminal nature as was the situation in this case. At the end of
the
day employees engaging in protected strike action need to know that
they may only engage in legitimate activities intended
to advance the
course of their protected strike. Fairness also demands that an
employer should not wait for a strike to end to
institute
disciplinary action for strike-related misconduct. By its nature,
illegitimate strike-related misconduct, if unchecked,
affords
strikers an unwarranted advantage. Due to the illegitimacy of the
misconduct it cannot be expected of an employer to tolerate
it
indefinitely.
“
[55]
The right to be afforded a fair hearing before one’s dismissal
is indeed an integral part of our law. This right is explicitly
recognised by the Act and has been restated in numerous decisions
of
this Court. However, once an employer institutes disciplinary action
and gives the affected employee notice thereof, it is open
to the
employee to attend or refuse to attend the enquiry. Should the
employee refuse to attend the enquiry such employee must
be prepared
to accept the consequences thereof, one of which is that the enquiry
will proceed in his absence and adverse findings
may be made. Of
course, if employees choose to do so, they are free to send
representatives to the inquiry who may do what is necessary
to
advance the case of the employees including the cross-examination of
witnesses. Furthermore, employees may also make written
representations to the person presiding at the inquiry. Employees may
in practice choose to absent themselves from an enquiry when
it would
be disruptive to the strike for them to attend it in person. We were
not referred to any provision of the Act which either
expressly or by
necessary implication is to the effect that an employer may not
convene a disciplinary inquiry against an employee
taking part in a
protected strike while such strike is in progress. In fact, there is,
as far as I am aware, no such provision
in the Act. On the contrary,
there are provisions in section 67 which were clearly designed to
confer protection on a strike that
complies with the Act as well as
on non-criminal conduct that is resorted to in contemplation of or in
furtherance of a protected
strike. If the Act sought to grant
employees taking part in a protected strike temporary immunity from
disciplinary action or disciplinary
inquiries while during the
progress of a protected strike, it would in my view have said so.
”
[6]
The arbitrator also misdirected himself on
another aspect of the issue of the damaged shack. He weighed it
against the applicant
that it had not produced evidence in rebuttal
of the claim made by Dibakwane in the course of the arbitration.
However, he
should rather have had regard to the fact that this
version had not been put to the company witnesses when they
testified.
Instead of criticising the applicant, he should have
held it against Dibakwane that those witnesses had not been given an
opportunity
to deal with the matter.
[7]
In relation to the merits of the charges,
the arbitrator seems to have misconceived an important leg of the
company’s case
against Dibakwane. This concerned the
charge dealing with the visit to Dr Du Plessis of 15
February 2007 and the
medical certificate issued pursuant to that
consultation, to the effect that there was nothing wrong with
Dibakwane and that he
was fit to work. In response to this, the
applicant had more than once requested Dibakwane to produce a medical
certificate
which would present a medical picture different from the
findings made by Dr Du Plessis. No such material was presented
by
Dibakwane in consequence of his visits to the clinic on 3 and
5 March 2007.
[8]
Instead of viewing matters in that light,
the arbitrator forcefully expressed the view that the company had not
been serious about
the hearing scheduled for 30 March 2007, because
it had still been waiting for a medical report. The true point
was not that
it was still waiting for a medical report. The
germane aspect of the matter was that Dibakwane had not produced a
medical
report to contradict the
prima
facie
conclusion to be drawn from the
report given by Dr Du Plessis that Dibakwane had falsely
held himself out to be ill.
[9]
Another aspect of the arbitrator’s
approach which is more than a little troubling was his treatment in
the course of the hearing
of the question whether Dibakwane had
refused to relieve on the extrusion machine on 16 April 2007 because,
at least in part, he
had a dispute with the applicant in relation to
whether or not he should have been paid a higher salary during the
time that he
was on the machine. The transcript shows that
whilst Dibakwane was being led in chief, the arbitrator intervened
and confirmed
that he had earlier testified that he was removed from
operating that machine because the company had failed to heed his
request
that they increase his salary as an operator. However
when the company representative took that issue up in
cross-examination,
in those terms, the arbitrator again intervened
asserting that the evidence was that the company had said that he
could not operate
the machine at all. This was an aspect of the
case that was important to the question of insubordination and the
arbitrator
should not have intervened in the manner in which he did.
[10]
I do not intend to traverse other aspects
of this matter. The above points are in my judgment sufficient
to lead to the conclusion
that material aspects of the reasoning and
the conclusions reached by the arbitrator, together with material
aspects of the manner
in which the arbitration was conducted by him,
have the consequence that it would be appropriate for me to interfere
with the outcome
of the arbitration.
[11]
At the same time, I am not of the view that
I am in a position to adjudicate the merits of the matter in any
final fashion.
This is principally a function of the fact that
the record is not a complete one. The transcript of the
mechanical recording
deals basically only with the evidence of
Dibakwane and the evidence presented for the company has not been
similarly rendered.
To some extent this was remedied for the
purpose of this hearing by the furnishing of a typed version of the
arbitrator’s
handwritten notes. However, it cannot be
said that such notes are equivalent in their detail to a proper
transcript of the
recorded material. I should add that the
transcript of that material is in any event deficient in many
portions of the record,
where the evidence is recorded as having been
indistinct.
[12]
It is therefore my conclusion that it will
be appropriate for this matter to be remitted to the second
respondent, the CCMA, for
rehearing before a different arbitrator.
[13]
Both parties approached this review on the
basis that costs should be awarded and it is my view,
correspondingly, that costs should
follow the result.
[14]
I accordingly make the following order:
[1]
the award delivered by the first respondent
on 23 January 2008
under case number NW2615-07 is hereby reviewed and set aside;
[2]
the third respondent is ordered to pay the
applicant’s costs in
respect of this review;
[3]
this matter is remitted to the CCMA, being
the second respondent, for
determination before a commissioner other than the first respondent.
______________________________
KS TIP
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
4 February 2010
DATE
OF JUDGMENT:
19 March 2010
FOR
APPLICANT:
Advocate SU Roeloffs
instructed
by Philholl Malan Attorneys
FOR
THIRD RESPONDENT:
Mr
Mtileni
of
NUMSA