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[2011] ZALCD 28
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Toyota SA Motors (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (D 739/10) [2011] ZALCD 28 (9 September 2011)
REDDY AJ
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Not Reportable
CASE NO. D 739/10
In
the matter between:
TOYOTA
SA MOTORS (PTY) LTD
........................................................................
Applicant
and
CCMA
........................................................................................................
First
Respondent
L
PILLAY N.O
.......................................................................................
Second
Respondent
SHERBON
SAUNDERS
...........................................................................
Third
Respondent
Date Heard: 23 AUGUST 2011
Date of Judgment: 9 SEPTEMBER 2011
______________________________________________________________________
JUDGMENT
REDDY AJ
Introduction
[1] This is an application in terms of
section 145 of the Labour Relations Act (the LRA)
1
to review and set aside or correct an
arbitration award dated 16 June 2010 under case number KNDB 12896-09
handed down under the
auspices of the Commission for Conciliation
Mediation and Arbitration (the first respondent).
[2] The Applicant seeks to have the
award set aside and substituted with an award that the dismissal of
the third respondent was
substantively fair.
Factual background
[3] The salient aspects of the matter
are that the third respondent was employed as a team member in the
production line fitting
airbags. He was employed from 10 November
2005 until his dismissal on 23 July 2009. At the time of his
dismissal, he earned a salary
of R 8 330.40 per month.
[4] On 6 July 2009, the third
respondent was suspended and charged with misconduct for “Being
absent from work (AWOL) without
authority / leave for four days or
longer without advising the company of your whereabouts and failing
to provide acceptable reasons
to management from 29 -06-09 to
03-07-09.”
[5] The third respondent was married
on 27 June 2009. He was absent from work on 25 and 26 June 2009. On
26 June 2009, the third
respondent called his direct supervisor, Mr
Sabapathy (Sabapathy), and informed him that he was to be married the
next day, and
required leave from 26 June to 3 July 2009.
[6] Sabapathy informed the third
respondent that he did not have authority to grant leave and
instructed that he return to work
on Monday, 29 June 2009.
[7] The third respondent did not
report for work from 26 June to 3 July 2009. He returned to work on 6
July 2009.
[8] An internal disciplinary and an
appeal hearing were held. The third respondent was found guilty and
dismissed.
[9] At the arbitration hearing, two
witnesses, on behalf of the applicant, testified that an employee had
to inform the team or
group leader on the first day of any absence.
The third respondent was aware of the rule.
[10] The third respondent did not
contact the applicant between 29 June and 3 July 2009. On his return
to work, the team leader
enquired of the third respondent as to the
reasons for this absence. The third respondent’s response was
that he was on honeymoon.
He was informed of the wrongfulness of his
actions and he responded that the employer can “do what the
fuck they want to
do”.
[11] Policy dictates that leave had to
be requested more than seven days in advance.
[12] A telegram was sent by human
resources on 1 July 2009 but it was unknown whether the third
respondent received it. The telegram
required the third respondent to
contact the applicant within 24 hours or face disciplinary action.
The telegram was sent because
the third respondent’s
whereabouts were unknown to the applicant.
[13] The third respondent testified
that he did not remember the applicant’s policies on leave. He
understood that if an employee
did not report for work for three days
he would face a charge of being absent without leave.
[14] He understood that once he had
requested leave from the team leader, he, the team leader, would go
to the group leader and
to the manager for the leave to be
authorised.
[15] He requested leave from the team
leader who requested that he returns to work on Monday with his
marriage certificate. He believed
it to be Monday 6 July and not
Monday 29 June 2009. He presented his marriage certificate on his
return on 6 July 2009.
[16] He denied receiving the telegram
from the applicant as he only received post at his physical address.
The telegram was sent
to his box address. Had he known about the
telegram he would have contacted the applicant immediately.
[17] He conceded that it was
unacceptable to stay away from work without informing the applicant.
[18] The second respondent found that
the third respondent was aware of the leave policy that it was an
offence to be absent for
four days or longer without advising the
applicant of his whereabouts and failing to provide acceptable
reasons to management.
The offence attracted a sanction of dismissal.
[19] He also found that the third
respondent was untruthful in stating that he believed that he could
return to work on 6 July and
not on 29 June 2009.
[20] He held that in charging the
third respondent with “being absent from work without authority
(AWOL) without advising
the Company” of his whereabouts and
“failing to provide acceptable reasons to management”,
the applicant was
suggesting that it had no idea why the third
respondent was absent. This was not true as the applicant was aware
that the third
respondent’s request for leave pertained to his
getting married.
[21] The second respondent found that
the factual circumstances of the absence did not fall into the scope
of desertion as alleged
by the applicant. There was no evidence that
the third respondent had abandoned his employment and the applicant
could not reasonably
believe this to have occurred. The second
respondent reasonably found that the previous offences of poor time
keeping were not
relevant to the charge in question. He accepted that
the third respondent had a clean disciplinary record. He found that
if the
principle of progressive discipline is applied, the sanction
of dismissal was not appropriate. He reinstated the third respondent
with limited retrospective backpay.
Grounds of review
[22] The applicant submitted that the
second respondent handed down an award that is not an award of a
reasonable and objective
decision maker, failed to apply his mind,
misconducted himself, committed a gross irregularity and exceeded his
powers by acting
unreasonably or unjustifiably by finding the
sanction of dismissal to be too harsh.
Evaluation
[23] The applicant bore the onus of
proving that the dismissal was the appropriate sanction.
[24] The analysis of the evidence by
the second respondent commenced at paragraph 17 and ends at paragraph
32 of the award. It is
detailed and careful.
[25] The second respondent in weighing
the evidence before him considered the probabilities of the versions
of each side.
[26] The second respondent found the
third respondent’s version, that he was unaware of the leave
policy and that he was return
to work on 6 July and not 29 June 2009,
unbelievable. He therefore found that the third respondent was aware
of the leave policy
and that he had to return to work on 29 June
2009. Once this finding was made, it then followed that the third
respondent was insubordinate
in not returning to work on 29 June
2009.
[27] The second respondent however
thereafter found that the applicant’s version, that it was
unaware of the third respondent’s
whereabouts, was unbelievable
as it knew that he was on honeymoon. Being on honeymoon was an
acceptable reason for being absent
from work for the days in
question. He also found that the third respondent had not deserted
his job.
[28] These findings are unreasonable
for the following reasons:
The third respondent had conceded
that it was unacceptable to stay away from work without informing
the applicant;
The third respondent knew that he had
to return to work on 29 June 2009. In staying away from work from 29
June to 3 July he was
absent without leave – this supports the
first portion of the charge that he was absent for four days or
longer without
authority [and] without advising the company of his
whereabouts;
The third respondent was
insubordinate in not returning to work on 29 June 2009 as instructed
to do so;
The reason that third respondent was
on honeymoon was not borne out by his evidence. He testified that he
was busy with “chores”
after his wedding during the week
29 June to 3 July 2009 – this is not a honeymoon. The second
respondent’s finding
that being on honeymoon was an acceptable
reason for the absence was not a reasonable finding;
When he returned to work he furnished
being on honeymoon as the reason for his absence – this was
dishonest;
He was insolent when he uttered that
the applicant can “do what the fuck they want to do”;
During the hearings he perpetuated
the lie that he was on honeymoon.
[29] It is evident from the above that
the third respondent’s conduct was dishonest, insolent and
insubordinate. This is hardly
the conduct of an employee who should
objectively be reinstated into his job.
[30] Whilst the charge he faced does
not necessarily imply dishonesty on the part of the third respondent,
his conduct in defending
his actions should have been considered by
the second respondent when he determined the appropriateness of the
sanction.
[31] Even though the third respondent
had a clean disciplinary record, the charge he faced attracted the
sanction of dismissal as
a first offence. Aggravating this is his
conduct and the fact that this Court, in other cases, has not
condoned dishonesty.
[32] It was also submitted that the
third respondent’s lack of remorse for his conduct does not
support a reinstatement.
[33] I am inclined to agree with the
applicant. It is understandable if the dishonesty relating to the
absence and the vulgar and
disrespectful utterance referred to above
were knee–jerk reactions and the third respondent apologised
for them. It is also
understandable that an employee is not inclined
to return to the dour responsibilities of one’s job immediately
after the
celebration of his marriage. Even if this were so, the
third respondent had responsibilities toward the applicant and he
should,
at some stage in the various proceedings, have recorded that
he valued his job and the tasks assigned to him.
[34] This would have in some way given
the third respondent some credence and could have supported an award
of reinstatement. Unfortunately
for the third respondent, this was
not his evidence.
[35] From the above, it is clear to me
that the second respondent in finding that dismissal was
substantively unfair and reinstating
the third respondent did not
reach a decision that a reasonable decision maker would have reached.
[36] In the premises, after having
considered the law and fairness in respect of the costs order, the
following order is issued:
The review application is upheld;
The award is reviewed and set aside;
The award is replaced with an award
that the dismissal of the third respondent is substantively fair;
There is no order in respect of
costs.
_______________
Reddy AJ
Appearances:
For the applicant: Mr B MacGregor of
MacGregor Erasmus Attorneys
For the respondent: Mr Motane of
NUMSA
1
66
of 1995.