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[2012] ZALCJHB 8
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Van Wyk v Commission for Conciliation Mediation and Arbitration and Others (JR 2833/09) [2012] ZALCJHB 8 (20 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 2833/09
In the matter between:
CLIVE GREGORY VAN WYK
…...............................................................................
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
…...........................................................
First
Respondent
LUNGILE MTIYA N.O
….........................................................................
Second
Respondent
VALORTRADE (PTY) LTD
t/a KOTZE
CONSTRUCTION
…....................................................................................
Third
Respondent
Heard on: 24 November
2011
Delivered on: 20
January 2012
___________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
This is a review
application in terms of section 145(2) of the Labour Relations Act
1
(‘the LRA’)
to review and set aside the arbitration award made by the second
respondent (‘the commissioner’)
on 08 October 2009 under
case number GAJB28616-09. The commissioner found that the dismissal
of the applicant was substantively
fair and accordingly dismissed
the applicant’s claim of unfair dismissal.
The review application
was preceded by an application for condonation for the late filing
of the answering affidavit. The condonation
application was not
opposed. I granted condonation having been satisfied with the
explanation proffered by the third respondent
and on account of it
not being opposed. Averments and submissions leading to the granting
of the condonation application would
clearly appear on record. I
would therefore not burden this judgment with the condonation aspect
of the proceedings.
Background Facts
The applicant was
employed by the third respondent on 01 October 2008 as a junior
foreman until his dismissal on 27 August 2009.
The applicant had been
charged for:
unauthorised absence
from work from 11 August 2009 to 19 August 2009 at Standard Bank
Computer Center at Samrand;
not notifying the third
respondent of his absence timeously and as instructed previously by
Leon Lamprecht (‘L Lamprecht’)
from 2009-08-11;
Failure to follow
standing orders and procedures by not forwarding any
documentation/sick note to the office in time regarding
his
absenteeism from 2009-08-11;
Incurring unnecessary
loss of income to the third respondent at Samrand due to his
negative behaviour in that regard;
Bringing the third
respondent’s name into disrepute due to his behaviour;
Insubordination in
relation to his superiors by not following instructions given to
him.
On 20 August 2009, the
applicant was given notice to attend the disciplinary hearing that
was scheduled for 25 August 2009. The
disciplinary hearing was
postponed to 27 August 2009. The applicant did not attend the
inquiry. The inquiry accordingly proceeded
in his absence resulting
to the dismissal of the applicant.
The matter proceeded to
arbitration at the first respondent (‘the CCMA’) where
the commissioner found that the applicant’s
dismissal was
fair. At the arbitration hearing the third respondent called two
witnesses, L Lamprecht and Adriaan Lamprecht (‘A
Lamprecht’)
to discharge its case, whilst the applicant called one Belinda van
der Sandt (‘van der Sandt’)
known to be his fiancé.
It was the third respondent’s case at the arbitration that:
The applicant was in
charge of one of the third respondent’s contracts with one of
their main contract Grinaker LTA, (‘Grinaker’).
The
applicant was stationed at Standard Bank Computer Centre.
The third respondent is
a civil works/ constructions company. The applicant liaised with the
main contractors on a daily and hourly
basis. He was responsible to
manage all work on site on the daily basis with the main contractor.
He was in essence the first
line of accountability to manage safety.
On Tuesday 11 August
2009, at 09.00 in the morning, L Lamprecht received a phone call
from one Grinaker Foreman, Kobus Koos (‘Koos’)
asking
for the whereabouts of the applicant on site. At the time, the third
respondent was busy excavating diesel tanks for Samrand,
which is
probably top three of their most dangerous work. The applicant’s
sole responsibility was the inspection of the
diesel tanks on the
ground formation for cracks, for collapsing tanks. L Lamprecht
thought the applicant was on site but was
advised that no one had
seen him that morning. A junior foreman, one Herman Britz was sent
immediately on site to manage the
situation. Koos was upset but A
Lamprecht managed to calm him down.
At around 12.00 of the
same day, A Lamprecht received a telephone call from the applicant’s
mother who notified him that
the applicant was sick and will be back
at work on Wednesday, 12 August 2009. On 12 August 2009, L Lamprecht
decided to call
the applicant on his cell phone at approximately
05.30 AM as he needed to know what was happening on the site. He did
not get
hold of the applicant. At about 06.30 AM, he called A
Lamprecht to make sure that if the applicant does not come to work A
Lamprecht
could manage the situation. The applicant did not arrive
at work.
On Wednesday 12 August
2009 at night, A Lamprecht received an SMS that the applicant will
be at work on Friday 14 August 2009.
The SMS was saying that the
applicant ‘was on a lot of pills and not feeling very well and
the doctor had booked him off
and he will be back at work on Friday,
14 August 2009’.
On Friday 14 August
2009, at 05.50 AM, A Lamprecht received another SMS that said the
applicant is still not feeling well and
will be back on Monday 17
August 2009. On Monday 17 August 2009, the applicant did not come to
work either.
Both A and L Lamprecht
tried to call the applicant on his cell phone numbers daily and on
the cell phone number where the SMS
messages came from, which was
apparently not the number they had on their records for the
applicant. The applicant’s cell
phone numbers continuously
went on voicemail when attempts were made to get hold of him. There
were also no answers from the
cell phone number they received SMS
messages from. This created a problem with a client, Grinaker as A
Lamprecht kept advising
the client that the applicant would be at
work but did not arrive. Grinaker thought A Lamprecht was lying and
that he created
a new story every time. Grinaker also had a problem
that there was no full time foreman on site.
The applicant had
apparently been previously disciplined and warned for unauthorised
absenteeism as he had a habit of not coming
to work particularly on
Mondays. The applicant would never report in person but would always
send his mother or fiancé
to call on his behalf. L Lamprecht
had a meeting with him in April 2009 to discuss this issue.
At that meeting, the
applicant was advised of the procedure that he should follow when
reporting his absence from work. He was
instructed that he should
make a telephone call in person before 06.00 AM directly to L
Lamprecht. This was to give the third
respondent time to reorganise
the whole station at Samrand and to get a person in his place in
time on site to take over while
the applicant was not present. L
Lamprecht thought it important that the applicant reports in person
so that the third respondent
could get more information regarding
work related problems on site which needed attention.
The third respondent
lost work of approximately R500 000.00 due to the applicant’s
actions.
The applicant in his
defence called van der Sandt who testified as follows:
On 11 August 2009 at
05.30, she called A Lamprecht’s cell phone number and left a
message on a voice mail. She phoned very
early in the morning so
that the third respondent could get someone else. A Lamprecht’s
wife later called back and confirmed
that she would relay the
message to A Lamprecht. She left a message that the applicant was
sick and that she was taking him to
the doctor.
She claimed that the
medication that the applicant received from the doctor made him
sleep and so he could not even talk. Van
der Sandt sent an SMS
everyday to A Lamprecht to advise him every time the applicant went
to the doctor. She told A Lamprecht
that the applicant had gone to
the doctor and the doctor had booked him off for a second opinion
after the applicant’s
mother advised her to do so.
On 18 August 2009, the
applicant received a call from L Lamprecht asking for the
applicant’s physical address and further
told the applicant
not to come back to work.
The applicant attempted
to submit the medical certificate on return to work but was not
allowed to come in at work.
Grounds for review
It appears that the
applicant was unrepresented when he filed the Notice of Motion.
Grounds for review are poorly set out in the
Notice of Motion as
follows:
‘
Disregarding
of evidence (proof and facts)
Disregarding of time keeping
Biovest
Violating of my right
Unfairly dismissed (CCMA)
New evidence (Defrauding
documentation)’
The applicant did very
little to amplify his grounds for review in his supplementary
affidavit apart for the averments that the
commissioner failed to
appreciate that the applicant was ill and could not attend work and
that the commissioner committed gross
irregularity in that she
failed to consider the evidence
conceded by
the third respondent that A Lamprecht was told about the illness.
The applicant attempted
some elaboration in his replying affidavit that the commissioner
failed to consider documentary evidence
i.e. medical certificate
that he was sick and therefore could not come to work and that
constituted gross irregularity.
In
his heads of argument, the applicant introduced a new ground for
review relating to procedure proposing that the commissioner
committed gross irregularity in finding that the third respondent
followed a fair procedure in dismissing the applicant, despite
that
no evidence was led regarding procedure. Alternatively, the
commissioner committed a gross irregularity in failing to advise
the
third respondent and applicant as laypersons to lead evidence on
procedure, despite that substantive and procedural fairness
were
issues for her to determine. This ground was neither alleged in the
applicant’s founding nor in his supplementary
affidavits. It
should therefore not be considered any further. In any event, the
onus would have been on the applicant to lead
evidence regarding his
complaints on procedure at the arbitration. If he claimed that there
was procedural unfairness he ought
to have substantiated his
submission by leading evidence in this regard. It does however
appear on record that the third respondent
did lead evidence
relating to procedure.
Evidence
was led to the effect that the applicant was issued with a letter
that he was required to report to work immediately
on 20 August 2009
at 07.00. When he reported for work he was issued with a notice to
attend a disciplinary hearing on 25 August
2009. The hearing did not
take place on 25 August 2009 but was postponed for 48 hours to 27
August 2009 to give the applicant
time to prepare and to go through
new documentation. The applicant was offered transport to and from
home if he attended the
hearing.
It appears that the
applicant had an issue with the disciplinary hearing starting at
17.00. L Lamprecht testified that 17.00 was
the only reasonable time
that a disciplinary hearing could be held due to the third
respondent’s operational circumstances.
He stated that it was
standard practice for the third respondent to have all disciplinary
hearings at 17.00. Apparently all disciplinary
hearings in the three
months prior to the applicant’s disciplinary hearing were held
at 17.00. The applicant was going
to be paid his overtime if the
hearing started at this time to compensate him for the
inconvenience. The applicant however chose
not to attend the hearing
and it was accordingly held in his absence.
Evaluation
The
grounds for review are set out vaguely. In fact, they are simply
listed without any elaboration on them. The gist however
appears to
be that the commissioner failed to take into account that the third
respondent was informed that the applicant was
sick and could not
attend work and he failed to consider the documentary evidence, i.e.
the medical certificate. It appears that
this medical certificate
was not submitted at the disciplinary hearing. A bundle referred to
as Bundle C, ‘doctor’s
notes’ was handed in by the
applicant at the arbitration hearing.
From the reading of the
record it is clear that the third respondent had laid down a rule
that needed to be followed by the applicant
when he was not going to
come to work. This was laid down because of the applicant’s
continuous absenteeism on previous
occasions. The applicant was
instructed to call his manager directly before six and in person if
he was not going to come to
work and that would enable the third
respondent’s management to get more information regarding the
site from the applicant
and to ensure that necessary plans were put
in place and replacements were organised in his absence. It was
accordingly not unreasonable
for the employer to want to know when
the applicant would be back at work.
It can be accepted that
at certain times the applicant may ask his family members to report
on his behalf when he was not able
to call himself on odd occasion.
However those calls should be followed by some attempts from the
applicant himself to contact
his employer personally regarding his
whereabouts and condition. It was crucial for the employer to have
an opportunity to talk
directly to the applicant so that it could be
brought up to speed about the status of his work at the site. This
is especially
because the third respondent’s managers were
constantly calling him and leaving messages for him to call back on
a daily
basis to no avail. It may well be that the applicant was
sick and could not speak at some point. Evidence however suggests
that
the applicant could speak at some point as van der Sandt
confirmed on record. He should then at the earliest opportunity of
his
‘recovery’ contacted his employer as he was the
foreman in charge on the site. It baffles my mind how the applicant
would not think it important to contact the employer personally at
some point in order to bring it up to speed about the situation
on
site and about what may need attention in his absence. The employer
could not get hold of him on his cell numbers after various
attempts
to contact him on a daily basis. This is not the kind of behaviour
that could be expected from a senior employee. The
applicant was in
charge of one of the main contractors, Grinaker who expected the
presence of a full time and competent foreman
on site at all times.
Surely, the applicant
could not have been sleeping for 24 hours for seven days. Van der
Sandt conceded under cross-examination
that she did speak to the
applicant when he was awake. Van der Sandt was inconsistent in her
evidence as she attempted so hard
at times to suggest that the
applicant’s voice was gone for seven days and that he could
not speak but only to concede
later in her evidence that this was
not the case. Van der Sandt also conceded under cross-examination
that the applicant could
have spoken to the third respondent’s
management if he wanted to but she had done that on his behalf. It
is also not disputed
that on the seventh day, 18 August 2009, the
applicant did speak with L Lamprecht when Lamprecht called him. Even
on that day
no attempts were made by him to contact his employer. It
is his employer that contacted him on account of the employer having
been told by Grinaker that half of the assignment would be
terminated, resulting in approximately R500 000 loss. I find
the applicant’s conduct irresponsible to say the least.
It is common cause that
SMS messages were sent reporting that the applicant would be back on
Friday, 14 August 2009 and Monday
17 August 2009 respectively. The
applicant failed to report to work on both occasions. I find the
version by A Lamprecht more
probable that these messages were sent
during the day or well at night not before six as instructed by the
third respondent.
It would not make sense for the third respondent
to risk losing its business from Grinacker by not putting proper
plans in place
if it was notified timeously.
It is also undisputed
that the applicant’s mother phoned well within the day, at
12.00 on Tuesday, 11 August 2009.
In my view, there has
been a clear infringement of a rule by the applicant that he was
aware of. His behaviour was unreasonable
and irresponsible and such
behaviour could not be expected from a foreman in charge of the
site. This is not to say employees
do not fall sick from time to
time. A responsible employee at a senior level such as that of the
applicant would ensure that
an employer is notified about his or her
absence timeously so that plans could be put in place urgently. Such
an employee would
also ensure that he or she is contactable when
required by the employer.
A Lamprecht kept
promising Grinaker that the applicant would be back at work as
advised on the SMS messages but the applicant
would just not pitch
on those days.
Van der Sandt’s
evidence also did not make sense when she suggested that the
applicant was booked off by the doctor on 12
August 2009 to 18
August 2009, but yet she wrote an SMS message to state that the
applicant would be back at work on Friday,
14 August 2009. It does
not help to say that she and the applicant ‘spoke about it’
and the applicant said he will
go to work on 14 August 2009 if he
was feeling better. It makes no sense why the applicant would go to
work if he was booked
off sick and supposedly declared unfit for
that week.
Van der Sandt also
conceded that she did not submit the medical certificate to the
third respondent and her excuse was that the
applicant wanted to
submit the medical certificate to his employer when he returned to
work but was told not to come in at work.
She also claimed that the
third respondent should have known that there was a medical
certificate as she informed the third respondent
that the applicant
‘was going to the doctor and the doctor had booked him off’.
It is clear that the
medical certificate was only issued on 18 August 2009 whereas van
der Sandt had suggested that the applicant
was in possession of the
medical certificate already by 12 August 2009. Van der Sandt’s
evidence was misleading in that
regard. The said medical certificate
states that the applicant would be unfit for work from 11 August
2009 to 18 August 2009.
The third respondent was never informed that
the applicant was booked from 11 August 2009 to 18 August 2009. It
was informed
that the applicant would be at work on Friday 14 August
2009 and 17 August 2009 respectively by van der Sandt. The medical
certificate,
which was clearly not in existence before 18 August
2009, does not help the applicant’s case at all in my view.
The applicant
still infringed a rule that directed him to inform his
manager, L Lamprecht directly and personally before 6.00 AM
regarding
his whereabouts or absence from work so that arrangements
could be made on time. The applicant did not do that. He did not
even
return telephone messages left on his cell phone numbers to
contact his employer.
I accordingly, find no
basis for the commissioner’s arbitration award to be said to
fall within the band of decisions that
are unreasonable. The
commissioner clearly took into account evidence given by van der
Sandt at the arbitration hearing. She
also had regard to the
allegations that the third respondent was notified by van der Sandt
about the cause of the applicant’s
absence. She also took into
account evidence relating to the sick note. She may have not
specifically mentioned the medical certificate
issued on 18 August
2009 in her award. This however does not make her award reviewable
as the alleged medical certificate did
not absolve the applicant of
his responsibility to comply with the rule laid down by his
employer.
I therefore make the
following order:
The review application
is dismissed.
There is no order as to
costs.
__________________
BOQWANA AJ
ACTING JUDGE OF THE
LABOUR COURT
APPEARANCES:
FOR THE APPLICANT: Mr K F
Mphepya, Legal Aid South Africa, Johannesburg
FOR THE THIRD RESPONDENT:
Adv I Posthumus
Instructed by: Muller &
Nolte Inc. c/o Van Gaalen Attorneys, Northcliff
1
Act
No 66 of 1995.