About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2010
>>
[2010] ZALCJHB 13
|
|
Vodacom (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR1412/05) [2010] ZALCJHB 13 (11 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO JR 1412-05
In
the matter between
VODACOM
(PTY)
LTD
1st
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
&
ARBITRATION
1st
Respondent
L
P LUCWABA,
(N.O.)
2nd
Respondent
MWASA
obo BENJAMIN
MONTHATO
3rd
Respondent
JUDGMENT
LAGRANGE,
J
Introduction
1.
The applicant (‘Vodacom’) seeks
to review and set aside an award issued by the second respondent
(‘the commissioner’)
on 9 June 2005. The commissioner
decided that the dismissal of Mr Monthato, the third respondent
(‘Monthato’), by the
applicant in November 2004 was
substantively and procedurally unfair and reinstated him without
backpay. In terms of the award,
Monthato would have returned to work
on 1 July 2005.
2.
Monthato was dismissed for unauthorized and
uncommunicated absence from work in that he failed to notify his
employer of his whereabouts
from 02 to 14 November 2004.
The
Award
3.
The main features of the award for the
purposes of this review are set out below.
4.
The employee did not come to work on
Tuesday 2 November 2004. His manager Mr Mokholo (‘Mokholo’).
Mokholo testified
that he asked the other staff who normally
travelled with Monthato if they had seen him, but they said they
hadn’t.
5.
There was a dispute as to whether Mr
Mabaso, a colleague of Monthato’s who gave Monthato lifts to
work, informed Mokholo on
the morning of 2 November that Monthato was
ill. Mabaso said that when he had gone to fetch Monthato that
morning, Monthato had
not come out of his house when he hooted. When
he went in to see why he had not come out, he found Monthato who said
he was ill
and asked Mabaso to inform Mokholo accordingly. Mokholo
did not remember Mabaso giving him such a message.
6.
By 12h00, which was the cut-off time by
which Monthato ought to have contacted him, Mokholo had not heard
from Monthato. Accordingly,
he sent Monthato an SMS asking him to
contact him. The SMS read: “
Benjamin.
We are concerned about your whereabouts, please give me a call …
”The
SMS did not elicit any response from Monthato. Mokholo sought advice
from the HR department and was told to wait and
see if Monthato
called. By Friday 12 November 2004, nothing had been heard from
Monthato, and the HR department then advised Mokholo
to formulate
charges against Monthato.
7.
Mokholo delivered the charges to Monthato
at his home on the same day. When Mokholo found Monthato at
home the latter
told him he had been sick but would be back at work
on Monday. On Monday, 15 November 2004, Monthato arrived at
work and
provided a certificate dated 12 November, which had
apparently issued by a traditional healer. The validity of the
certificate
was not accepted by the HR department. Mokholo tried to
contact the traditional healer but could not reach her on the number
provided
by Monthato. Monthato said that this was the only number he
had.
8.
Mokholo invited Monthato to speak to him
directly about his work attendance without his immediate supervisor
present, if he wished.
He also asked him if he had really needed nine
days off for ‘heartburn’ and Monthato affirmed that he
had.
9.
The hearing was postponed on the first
occasion because Monthato did not have a representative. On the
second occasion it was postponed
because Monthato and his
representative requested the recusal of the chairperson on account of
the fact that she had chaired a
previous hearing which had resulted
in Monthato receiving a final written warning for unauthorized
absenteeism in October
2004. The chairperson accordingly recused
herself and the enquiry was postponed to a third date on 25 November
2004. On 23 November
2004, Monthato’s representative sent an
email requesting the enquiry to be postponed to 30 November 2004 as
he could not
attend the scheduled hearing the following day. The
email was forwarded to the applicant next day and he was advised to
obtain
alternative representation as the enquiry would proceed the
following day. On 25 November 2004, the applicant attended
alone
and reiterated the request to postpone the hearing on account
of not having a representative. This request was refused and
the hearing proceeded. Monthato remained present but decided against
giving evidence in his own defence.
10.
The main reason underpinning the
commissioner’s conclusion that Monthato’s dismissal was
substantively unfair, is his
finding that Vodacom had failed to prove
on a balance of probabilities that Mabaso did not give Mokholo the
message that Monthato
was ill. The commissioner reasoned that
the real issue was Monthato’s failure to communicate his
absence on account
of illness in the proper way, not that he had
failed to do so at all. Consequently, because Monthato had
communicated his
absence to Mokholo through Mabaso, his absence could
not said to uncommunicated and accordingly the applicant had failed
to discharge
the onus of proof on the charge.
11.
Three subsidiary inferences lead the
commissioner to make these findings:
11.1.
When Mabaso testified, his evidence that he
gave Mokholo the message was not directly challenged. Instead, his
credibility was challenged
on the basis that he himself had been
dismissed for the same offence by the time he testified. The
commissioner did not find this
line of attack on his credibility
persuasive;
11.2.
Secondly, even though Mokholo stated that
it was a rule that it was not acceptable to send a message via
colleague and this was
part of the employment contract, he did not
explain why the contract was not included as part of the bundle;
11.3.
Lastly, the commissioner found that it was
an inescapable inference that if Monthato had not notified Mokholo of
his absence, Vodacom
would have treated him as having deserted. As it
did not, this meant that Mokholo had been notified but not in the
preferred way.
This conclusion is central to the commissioner’s
reasoning.
12.
The commissioner did accept that
Monthato had acted very irresponsibly by not responding to Mokholo’s
SMS as he should have,
but found that this failure was not sufficient
to justify a conclusion that the employment relationship had
completely broken down.
13.
The commissioner also found the
dismissal was procedurally unfair. The nub of the issue was that he
concluded that the date of 25
November 2004 had been a ‘tentative
date’ for the hearing, depending on whether or not Monthato’s
representative,
Mr C Mashabane would be able to attend. It is
apparent from the transcript of the hearing on 22 November 2004 that
Mashabane did
indicate that his work commitments might prevent him
from attending.
14.
Relying on this, the commissioner found
that it could hardly have come as a surprise to the applicant when it
received the email
from Mashabane on 23 November that he would be
available on 30 November 2004 instead. Secondly, the
commissioner observed,
correctly, that was a needless delay of
a whole day in notifying Monthato that Mashabane would not be able to
attend and he should
find an alternative representative. Instead of
having two day’s notice to find an alternative representative,
Monthato was
only given a day’s notice. As the
commissioner put it: “
Considering
that the applicant [Monthato] was on duty where was he supposed to
find time to get a new representative and familiarize
that
representative with the merits of the case within 24 hours?
”
15.
The employer interpreted the request for a
further postponement as a delaying tactic. The commissioner could not
understand how
this could be the case when 25 November 2004 had only
been a tentative date anyway. The previous postponement caused
by the
recusal request had been for a legitimate reason too.
Grounds
of Review
16.
Vodacom attacked the commissioner’s
reasoning on both substantive and procedural fairness. I will only
focus on those grounds
of review which it persisted with at the
review hearing.
17.
The applicant argued that even if Mabaso
had communicated Monthato’s absence on 2 November 2004 as she
concluded, she failed
to consider, that this communication did not
address Monthato’s much longer absence from 3 to 12 November
2004. Moreover,
she failed to consider that the remaining
period was not covered by the medical certificate from the
traditional healer that was
issued
ex-post
facto
, and that the traditional healer
did not even appear to be registered.
18.
Vodacom attacked the commissioner’s
findings on procedural fairness on the basis that she failed to take
account of the fact
that:
18.1.
the postponement of the enquiry to 25
November 2004 was not a tentative or provisional postponement;
18.2.
the company was prepared to take steps to
ensure the presence of Mashabane at the enquiry, and
18.3.
the enquiry had already been postponed
twice at the employee’s instance.
19.
It appears that the commissioner’s
approach to the evidence before her in evaluating the issue of
substantive fairness was
unduly affected by her interpretation of
Vodacom’s failure to treat Monthato’s absence as
desertion. This led
her in turn to disregard other pieces of
evidence.
20.
Firstly, the commissioner was obviously of
the view that Vodacom elected not to treat Monthato’s absence
as an act of desertion
only because it must have been notified of his
absence by Mabaso. However, in so doing the commissioner closed
her mind to
other possibilities. Thus, an unexplained absence
by an employee may be dealt with either simply as a matter of
unauthorized
absenteeism or as a basis for alleging desertion. It
does not follow that if Vodacom did not receive notice of Monthato’s
absenteeism on 2 November 2004, it was compelled to treat his case as
one of desertion instead of a case of uncommunicated and
unauthorized
absenteeism. The commissioner closed her mind to consider the
alternatives available to the employer in Vodacom’s
situation.
Having adopted this mutually exclusive view of the alternative
disciplinary approaches of desertion and unauthorized
absenteeism,
this was decisive in her evaluation of whether or not it was probable
that Monthato’s absence had been communicated
to Mokholo on 2
November 2004 and she materially misdirected herself in this respect.
Instead she should simply have weighed
up all the evidence on
this question without making an assumption about the disciplinary
options available to the employer.
21.
Had she done this, she would have had to
consider that the SMS sent on 3 November 2004, did not indicate that
Monthato’s absence
on the previous day had been previously
communicated to Mokholo. The commissioner would also have had to
consider that Monthato
did not respond to the SMS in any way, even if
just to say that he had asked Mabaso to speak to Mokholo. She would
also have had
to consider that when Mokholo was given the charges on
12 November 2004, he failed to mention that he thought he had
communicated
the reason for his absence.
22.
It is true that the commissioner did
consider Monthato’s failure to respond to the SMS as
irresponsible, but because of the
stance she had already adopted
about the likelihood of Mabaso having reported to Mokholo based on
the choice of charges available
to Vodacom, she did not consider how
it affected the probabilities that the Mokholo had been notified of
his absence by Mabaso.
The arbitrator also did not appear to have had
regard to Mokholo’s evidence of the conversation with Monthato
when he visited
him at home on 12 November 2004 to deliver charges
for the enquiry. According to Mokholo, he asked Monthato why he had
not responded
to the SMS. The answer was that he intended to. He did
not say that he thought it was unnecessary because he had already
informed
Mokholo via Mabaso. He also conceded under
cross-examination that he had a company phone, There is no record of
Mokholo’s
cross-examination, but in his own evidence Monthato
did not offer an alternative version of the conversation which took
place when
the charges were delivered.
23.
I believe that the arbitrator’s
reasoning on the issue of substantive unfairness, shows that she
failed to weigh the evidence
for and against whether or not Monthato
had indeed informed Mokholo via Mabaso of his absence in a balanced
manner. This
is not a question of whether or not she came to
the correct conclusion, but whether she effectively disregarded much
of the relevant
evidence because of the approach she had adopted. The
Applicant is also correct that she failed to consider the entire
period of
Monthato’s absence from work and that, even on his
own account, he did not communicate with his employer during the
greater
part of his absence from 3 November 2004 onwards until he
received the charges from Mokholo. These issues lie
at the heart of the arbitrator’s substantive fairness of the
dismissal together with Monthato’s prior disciplinary
history
and for the reason discussed above the arbitrator’s findings on
the substantive unfairness of Monthato’s dismissal
must be set
aside.
24.
In relation to finding of procedural
unfairness, I am satisfied that the transcript of the disciplinary
hearing of 22 November 2004
reveals that Mashabane did raise the
possibility that his work duties might make it difficult for him to
attend the postponed hearing
on 25 November. It is also correct that
the company offered to intervene on his behalf if he had difficulties
in being able to
attend on account of his duties but he did not want
assistance and implied he could handle them himself. When the
hearing
adjourned on 22 November, there was no express understanding
that the date of 25 November was merely tentative. Based on the
evidence,
it might be more correct to say that the company had
clearly decided to postpone the matter to 25 November and that
Mashabane
had expressed some concerns he might not be able to attend,
but no agreement was reached on what would happen if he could not
sort
out any difficulties in that regard on his own. On a
correct reading of the evidence, the commissioner might have been
overstating
matters in finding that 25 November was a tentative date
contingent on Mashabane’s availability, but I cannot say it was
a finding that was insupportable on the evidence and accordingly one
that no reasonable arbitrator could reach.
25.
I also do not agree that the arbitrator
failed to consider the fact that the enquiry had been twice postponed
already. She expressly
dealt with the previous postponements and
found them to have been legitimate. The arbitrator also queries why
the employer only
conveyed the message that it would proceed on 25
November when it received notification of Mashabane’s inability
to attend
the hearing two days in advance.
26.
Accordingly, I do not believe the
commissioner was unreasonable in considering if it was procedurally
unfair of the employer to
have insisted on proceeding on 25 November
2004 in the absence of Monthato’s representative and after
notifying him later
than it should have that he would have to find
alternative representation.
Remedy
27.
The applicant has requested that the
matter be referred back to the CCMA for rehearing in view of the
significant gaps in the record.
In court, Monthatho’s
representative submitted that if the court set the award aside it
should substitute its own decision
for that of the arbitrator.
If this matter had come to court earlier there might have been some
merit in allowing the matter
to go back. On the other hand, it must
be said that notwithstanding the gaps in the transcript, the parties
are not really at odds
over the significant parts of the evidence.
The differences between them relate to the interpretation of evidence
that is common
cause and do not entail any major dispute over what
the evidence actually was. For these reasons, I believe it is
more prudent
to substitute the court’s judgment for that of the
arbitrator in so far as the arbitrator’s finding of substantive
unfairness should be set aside and a remedy afforded for the
procedural unfairness.
28.
In considering the substantive fairness of
Monthato’s dismissal I believe the following factors are
relevant:
28.1.
On balance I do not believe that Mabaso was
requested to notify Mokholo of Monthato’s illness on 2 November
2004. It
seems that if Monthato had requested Mabaso to report
his illness, it is very unlikely he would not have mentioned this
when he
saw Mokholo on 12 November and was asked why he had not
responded to the SMS of the same day. In any event, even if
he
thought he had taken reasonable steps to notify his employer of his
absence on 2 November 2004, it does not explain why he did
not
respond to the SMS which expressly asked him to contact his manager,
especially when that message gave a clear impression that
his manager
did not seem to know why he did not come to work on that day. Any
reasonable person receiving such an SMS ought
to have been concerned,
even if he had asked someone to convey a message to his employer, and
would have made the effort to communicate
with his manager directly.
28.2.
Moreover, even if Monthato had asked Mabaso
to convey a message on 2 November 2004, he ought to have followed up
on that when it
became apparent he would not be at work on subsequent
days as well, especially after he received the SMS from his manager.
I agree with the applicant that even if there had been a
communication to the company via Mabaso on 2 November 2004, that
would
have been insufficient to explain his absence on subsequent
days.
28.3.
When Manthato eventually tendered a reason
for his extended absence he relied on a certificate issued by an
unregistered traditional
healer on the very date he was handed the
charges. Nothing on the certificate indicates that Monthato consulted
the healer prior
to that date, and even if the certificate had been
issued by a registered healer, it could not confirm the state
of Monthato’s
health pior to 12 November 2004.
28.4.
In the circumstances, it seems reasonable
to conclude that the reason for Monthato’s absence was probably
not communicated
on 2 November and certainly not until he offered an
explanation on 12 November 2004 when Mokholo found him at home.
Further,
the certificate he tendered in support of his alleged
illness cannot serve to justify his absence for legitimate medical
reasons,
because of the shortcomings mentioned already.
28.5.
It is true that the contract was not
produced to validate the rule that Monthato ought to have notified
the employer of his absence.
However, Monthato did concede that his
contract at least required him to inform his employer of his
absence. As he did nothing
after 2 November, even on his own
version, he did not comply with this requirement for most of his
extended absence.
28.6.
Added to this, the applicant already had
two prior warnings, one of which was final and still valid for the
same offence, This would
seem to be an instance where the previous
warnings failed to have the desired effect in correcting the
particular misconduct in
question and the employer was entitled to
conclude that further progressive discipline was unlikely to lead to
an improvement.
29.
On the issue of an appropriate remedy for
procedural unfairness the failing on the part of the employer was
that it was over-hasty
in insisting the enquiry must proceed on 25
November 2004, knowing that it had only given Monthato one day to
find an alternative
representative when it knew two days in advance
that Mashabane would not be available. Mashabane had said he
was available
on 30 November 2004, but the employer does not appear
to have explored the feasibility of proceeding on another date in the
near
future if that date was not suitable for it. The reasons
for the previous postponements were not frivolous ones and the delays
between dates were not extensive. The right to representation
does not mean that if an employee’s chosen representative
is
rarely available a hearing cannot proceed until that representative
makes himself available. If accommodating a busy representative
entails significant delays in holding the enquiry it is not
unreasonable to expect an employee to be asked to find an alternative
representative.
30.
However, when a chosen representative does
become unavailable, the employee should be afforded a reasonable
opportunity to find
a substitute as that individual may have to
prepare for the case from scratch. To give Monthato barely a
day to find and
consult with an alternative representative when the
employer already knew of Mashabane’s unavailability a day
before seems
to have been unnecessarily short notice, and there
is no reason why Monthato should have been expected to participate in
the hearing without representation under those circumstances.
31.
The hearing with representation Monthato
ought to have had took place before the commissioner and ended on 22
April 2005.
The period between the date of dismissal and the
conclusion of the hearing was approximately 5 months, without any
obvious delays
attributable to the applicant. On the other hand,
there is no reason to believe that it would have taken beyond
mid-January 2005
to convene the internal hearing with Monthato having
an alternative representative. In the circumstances an award of
one-and-a-half
months’ remuneration as compensation for
the resulting procedural unfairness seems appropriate
Order
32.
In the light of the above, an order is made
in the following terms:
32.1.
The second respondent’s finding that
the third respondent’s dismissal was substantively unfair is
set aside and substituted
with a finding that it was substantively
fair;
32.2.
The second respondent’s finding that
the third respondent’s dismissal was procedurally unfair is
upheld
32.3.
The applicant is ordered to pay the third
respondent an amount equivalent to one and a half months’
earnings calculated at
his rate of remuneraton as at the date of his
dismissal on 25 November 2004, within 21days of the date of this
judgment, subject
to the following. As there is no evidence before me
of the actual rate of remuneration a specific rand amount cannot be
stated,
but ought to be readily ascertainable. However, in the event
that the parties are unable to agree on the third respondent’s
monthly remuneration, either party may apply to the court to have the
precise quantum determined, in which case the parties will
be
required to submit evidence on affidavit setting out their respective
contentions on the issue with the necessary supporting
documentation
.
32.4.
No order is made as to costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of Hearing: 19 March 2010
Date
of Judgment: 11 November 2010
Appearances
For
the Applicant: Mr M Van As instructed by Edward Nathan Sonnenberg Inc
For
the third respondent: Mr Lecoge of Denga Attorneys Inc.