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[2010] ZALCCT 27
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Seardel Group Trading (Pty) Ltd T/A Romatex Home Textiles v Petersen and Others (C502/2009) [2010] ZALCCT 27 (2 September 2010)
(NOT REPORTABLE)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C502/2009
In
the matter between:
SEARDEL
GROUP TRADING (PTY) LTD
t/A
ROMATEX HOME
TEXTILES
Applicant
and
SHANE
PETERSEN
First
respondent
SACTWU
Second
respondent
COMMISSIONER
L MARTIN
N.O.
Third
respondent
CCMA
Fourth
respondent
JUDGMENT
STEENKAMP
J:
Introduction
[1]
This is an unopposed application for the
review of an award by the commissioner (the third respondent) of the
CCMA (the fourth respondent)
made on 2 July 2009.
[2]
The crux of the review application is that
the commissioner misdirected himself in equating “annual leave”
as contemplated
in the Basic Conditions of Employment Act 75 of 1997
(“the BCEA”) and in the Main Collective Agreement for
the
National Textile bargaining Council (“the Main
Agreement”) with the applicant’s annual shutdown period.
Absence of opposition
[3]
I was concerned that this matter was
unopposed, given the effect of a successful review on Mr Petersen,
the first respondent. He
had been represented at arbitration by
SACTWU, the second respondent.
[4]
I am satisfied that the review application,
the record of the CCMA proceedings and the applicant’s notice
in terms of rule
7A(8) have been served on SACTWU. This appears from
the service affidavit filed by Mr Cronjé, the applicant’s
attorney,
and from SACTWU’s own stamp acknowledging receipt by
its head office on 22 September 2009. Furhermore, the registrar
notified
SACTWU of today’s hearing by telefax on 26 August
2010. The union has not entered an appearance. Mr Petersen was at
court
for the hearing but did not oppose the application.
Background
[5]
The applicant dismissed Petersen for
refusing to obey a lawful instruction. The dismissal became final
after an internal appeal.
The parties were in agreement at
arbitration that the dismissal was procedurally fair. The only issue
in dispute was its substantive
fairness.
[6]
The reason for the dismissal was that
Petersen, a maintenance fitter, refused to perform maintenance duties
at his normal rate during
the applicant’s annual shutdown
period in December 2008 and January 2009. Petersen was prepared to
work at a higher rate,
but not at his normal rate.
[7]
It is common cause that most of the
applicant’s employees take their annual leave during the
shutdown period. However, this
is not the case for maintenance
workers, as they have to perform maintenance work during the shutdown
period while production is
not ongoing. Those employees who do not
take annual leave during the shutdown period can, of course, do so
during other times of
the year.
The award
[8]
The commissioner accepted the common cause
evidence that Petersen normally worked during the shutdown period.
However, in December
2008 he was only prepared to do so if he was
paid at a higher rate.
[9]
The commissioner came to the conclusion
that “Petersen’s willingness to work at a different rate
constitutes a refusal
to work…”
[10]
However, the commissioner than found that
work during the shutdown period was “illegal” in terms of
the BCEA and the
Main Agreement. On that basis, he found the
dismissal to be substantively unfair and ordered the applicant to
reinstate him retrospectively
to the date of dismissal.
Review
[11]
Section 20(9) of the BCEA provides: “An
employer may not require or permit an employee to work for the
employer during any
period of
annual
leave
” (my underlining). Clause
21.9 of the Main Agreement repeats this section
verbatim
.
The Main Agreement is silent on the interplay, if any, between the
annual shutdown and the time when employees may or should take
annual
leave.
[12]
Petersen’s contract of employment
states that he is entitled to 20 working days’ annual leave
after the completion of
five years’ service. (He had ten years’
service at the time of dismissal). There is no provision that annual
leave
must be taken at the time of the annual shutdown or that the
two overlap.
[13]
This court has held that:
“
The
commissioner’s exercise of discretion will be upset on review
if the applicant shows, inter alia, that the commissioner
committed a
misdirection or irregularity, or that he/she acted capriciously, or
on wrong principle, or in bad faith, or unfairly,
or that in
exercising the discretion the commissioner reached a decision that a
reasonable decision-maker could not reach.”
[1]
[14]
In this case, the commissioner has misdirected himself in equating
the applicant’s annual shutdown period with the period
of
annual leave.
[15]
The prohibition on an employer requiring an employee to work during
“any period of annual leave” contained in the
BCEA and
the Main Agreement is wholly irrelevant to the period of the
applicant’s annual shutdown. There was no evidence
before the
commissioner to suggest that employees are required to take their
annual leave during the period of the annual shutdown,
or that
Petersen had taken his annual leave during that period. In fact, the
evidence was to the contrary, ie that Petersen customarily
performed
maintenance work during the annual shutdown period. And in his
evidence at arbitration, Petersen agreed with the statement
by his
trade union representative that, “[i]n working at the company
[it] has been the norm that there is work for maintenance
during the
shutdown period”.
[16]
The commissioner’s misdirection goes to the heart of his award.
It is so unreasonable that no reasonable commissioner
could have come
to the same conclusion. It must be reviewed and set aside.
[17]
That brings me to the question of sanction. Mr Cronje submitted that
I should substitute my own finding for that of the commissioner.
Sanction, he said, was not addressed by either party at the
arbitration: The question was simply whether the dismissal was
substantively
fair. If the reason was fair, it followed that the
sanction of dismissal was fair.
[18]
In the absence of any argument to the contrary, it appears to me
that, once it is found that Petersen had committed the offence
complained of, dismissal was indeed a fair sanction.
Costs
[19]
The application was not opposed. I see no reason in law or fairness
to saddle any of the respondents with a costs order.
Conclusion
[20.1]
The arbitration award under case number WE 2710-09 is reviewed
and set aside.
[20.2]
The award is substituted with the following award: “The
dismissal of the employee (Petersen) by the employer
(Romatex Home
Textiles) was fair”.
[20.3]
There is no order as to costs.
_______________________
ANTON
STEENKAMP
Judge
of the Labour Court
Date
of hearing:
1 September 2010
Date
of judgment:
2 September 2010
For
the applicants:
Mr
F Cronjé, Cronjé’s Inc
[1]
Cowley
v Anglo Platinum
(unreported,
JR 2219/2007, dated 18/11/2008, per Musi AJ), coted with approval by
Van Niekerk J in
George
v National Bargaining Council for the Chemical Industry
(unreported, Petersen 97/2010, 25 August 2010).