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[2010] ZALCJHB 37
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SCMAWU obo Nkosi v Bargaining for the Restaurant Catering And Allied Trades and Others (JR1055/10) [2010] ZALCJHB 37 (22 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO JR 1055/10
In
the matter between:
SCMAWU
obo LINDIWE NKOSI
Applicant
and
BARGAINING
COUNCIL FOR THE RESTAURANT
CATERING
AND ALLIED TRADES
First
Respondent
LISA
MOSALA MATLATLE
Second
Respondent
TORTELINO
D’ORO
Third Respondent
JUDGMENT
COETZEE
AJ:
Introduction
1.
The Applicant seeks to review and set aside
the arbitration award in case ARV08/12/01 dismissing Applicant’s
case. Applicant
alleged an unfair dismissal while the Employer
party relied upon a provision in the Bargaining Council Collective
Agreement that
provides that an Employee shall be deemed to have
terminated his contract of service if absent without permission from
work for
more than five consecutive working days, or six working days
during the preceding six months.
Background
and Facts
2.
Applicant relies upon the notes of the
Arbitrator in the absence of a recording of the proceedings.
3.
The Arbitrator in his award recorded that
he was required to decide whether:
3.1.
"
The
employee repudiates her employment with the employer or not.
3.2.
To consider and interpret the
provisions of clause 13 (1) (ac) of the main agreement.
3.3.
The meaning of "deemed to have
terminated his contract of service" as set (sic) in the main
agreement.
3.4.
Interpret the provision of clause 14
(3) (c) of the main agreement.
3.5.
Whether the applicant absconded or not
."
4.
It is in dispute that the Applicant, to
which I shall refer as the Employee, was arrested on 28 September
2008 while on leave.
5.
The Employee remained in custody, on her
version, until 24 October 2008 when the charges against her were
withdrawn.
6.
She testified in the arbitration that on 25
October 2008 she visited the premises of the Third Respondent to whom
I shall refer
as the Employer.
7.
The Employer (the date when this occurred
is in issue) issued her with her UIF card reflecting the date of
termination of services
as 25 October 2008.
8.
The Employer testified that the first visit
from the Employee was on 3 December 2008 and not on 25 October 2008
as alleged by the
Employee.
9.
The Employee’s testimony was that
when she had to resume work on 9 October 2008 she was still
incarcerated
and
unable to report for work.
10.
The Employer on 13 October 2008 instructed
a driver to deliver a letter to the Employee stating the following:
“
With
reference to the above, Tortelino D’Oro CC confirms your
absenteeism without leave or valid reason in excess of five
working
days.
Therefore,
in terms of clause 13(1)(ac) of the Bargaining Council’s
Collective Agreement for the restaurant trade, you have
terminated
your contract of service
.”
11.
The relevant part of this provision reads
as follows:
"
...
Any employee who deserts or who is absent without permission from
work for more than five consecutive working days or six working
days
during the preceding six months (such an employee shall be deemed to
have terminated his contract of service
..."
12.
The letter was issued and delivered on the
fifth calendar day from the day when the Employee had to resume duty.
13.
Even assuming that Saturday and Sunday, 11
and 12 October 2008 were “business days”, the letter was
issued prematurely.
14.
This provision in the Collective Agreement
does not call for any notice to the Employee when the Employer relies
upon clause 13(1)(ac).
15.
The Applicant’s attack upon the
arbitration award rests on a number of pillars.
16.
The main attack is the finding of the
Arbitrator rejecting the evidence of the Employee and her witnesses
in favour of that of the
Employer.
17.
One example of such relevant evidence cited
is the conflict between the Employer’s witness’s evidence
that she first
saw the Employee on the 3
rd
of December 2008 when she collected her UIF card and not on 25
October as alleged by the Employee.
18.
In contrast Applicant testified that she
attended on 25 October 2008 and collected her UIF card with the date
of dismissal recorded
thereon as such.
19.
The UIF card presented by the Employee in
the arbitration indeed reflects 25 October 2008 as the termination
date and not 13 October
2008 when the letter was issued, or 3
December 2008 when according to the Employer she visited the
Employer’s premises.
20.
The UIF card corroborates the evidence of
the Employee on this point.
21.
A further attack upon the arbitration award
is that the Arbitrator incorrectly applied the onus of proof when
considering the evidence.
22.
The Employee testified that she was
incarcerated for three weeks and first released on 24 October 2008.
23.
The only witness for the Employer testified
that she sent a driver to deliver the letter of 13 October 2008 to
the Employee.
24.
According to her, the driver reported back
that when he delivered the letter someone accepting the letter had
informed the driver,
who then informed the Employer’s witness
that the Employee was in Zimbabwe.
25.
The Arbitrator held that he was not
satisfied that the Employee discharged enough proof on a balance of
probability that she was
in jail for a period of three weeks.
26.
He also held that the Employee had to prove
a negative, i.e. that she was not out on bail.
27.
She testified that she was incarcerated and
the SAPS official supported that evidence with documents produced to
show she was in
jail for that period.
Analysis
of the evidence and arguments
28.
The only evidence, if it can be so called,
that the Employee was not in jail for three weeks is the hearsay
evidence tendered by
the Employer.
29.
The Arbitrator approached the evidence on
the basis that “The crux or the deciding factor in this case is
whether the Applicant
was granted a (sic) bail or not.”
30.
There was no evidence whatsoever that
Applicant was granted bail. only “evidence” that she
might not have been in jail
was the hearsay evidence (to the third
degree) tendered by the Employer witness relying on what the driver
had heard from a third-party.
31.
The focus on the relevant evidence should
have been, as recorded by the Arbitrator at the commencement of the
arbitration, on an
interpretation of clause 13 of the collective
agreement and a consideration of the evidence pertaining thereto and
not primarily
whether the Employee was out on bail or not.
32.
It is clear from the disputes in this
matter that the Arbitrator, as recorded by the Arbitrator self, had
to determine whether the
Employee terminated her services in terms of
clause 13(1)(ac) of the main agreement, or whether the Employer
dismissed the Employee.
33.
The Arbitrator failed to assess the
interpretation and application of the clause in the collective
agreement and also the relevant
evidence pertaining thereto.
34.
The relevant evidence related to whether:
34.1.
The Agreement applies to the Employee, and
34.2.
More than 5 business days have expired: and
34.3.
The Employee had been absent from work
without permission for more than five business days.
34.4.
The exception that absence due to
incapacity applied in this case (this exception excludes the
operation of this clause).
34.5.
Whether the provision in the collective
agreement dispenses with a hearing when the Employee presented
herself for duty at the Employer.
35.
There is conflicting evidence on whether
the Employee or one of her witnesses in good time approached the
Employer and what exactly
the purpose of such an approach was –
to inform the Employer of the reason for the absence or to obtain
permission for the
absence.
36.
The Arbitrator made a bald statement that
the Employer’s witness was more reliable than the Employee and
the witnesses for
the Employee.
37.
The finding of the Arbitrator does not
specify why and the relevant evidence is not identified to show where
the Employee’s
case fell short and for what specific reasons
the evidence tendered on behalf of the Employer was more reliable
than the evidence
presented by and on behalf of the Employee.
38.
The Arbitrator exceeded his powers by not
addressing the issues presented to him.
39.
The approach of the Arbitrator and the way
he dealt with the evidence and onus resulted in an unfair arbitration
and it cannot be
said to be an award that any reasonable Arbitrator
could have made.
Order
40.
The arbitration award under case number
DSPARB08/12/01 is hereby reviewed and set aside.
41.
The matter is referred to the Bargaining
Council for the Restaurant Catering and Allied Trades for arbitration
before an Arbitrator
other than the Second Respondent.
____________________________
COETZEE
AJ
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
20
DECEMBER 2010
DATE
OF JUDGMENT:
22 December 2010
APPEARANCES:
FOR
APPLICANT:
P S Radebe of SCMAWU
FOR
THE RESPONDENTS:
Unopposed