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[2012] ZALCJHB 90
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Jacobs and Others v Levy and Others (JR 1078/09) [2012] ZALCJHB 90 (10 July 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of interest to other Judges
case no: JR 1078/09
In the matter between:
MMARGORY
JACOBS
....................................................................................
First
Applicant
JAFTHA
SONIA
..........................................................................................
Second
Applicant
LINKS
IRENE
..................................................................................................
Third
Applicant
and
DAVID
LEVY
................................................................................................
First
Respondent
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL (MEIBC)
.........................................................
Second
Respondent
BETA
SCAN ELECTRONICS
....................................................................
Third
Respondent
STINGER
ELECTRONICS
.......................................................................
Fourth
Respondent
Heard: 24 April 2012
Delivered
:
10 July 2012
Summary: Review application-dismissal for failing to comply with
the changed policy on the period of leave- insubordination arising
from the applicants failing go to report for work after being told to
do so.
JUDGMENT
Molahlehi J
Introduction
This is an application to review and set aside the arbitration award
by the first respondent (the arbitrator) under case number
MEGA 7135
dated February 2009. In terms of the arbitration award, the
arbitrator found the dismissal of the applicants to have
been fair.
Background facts
The facts of this matter are fairly common cause except those
relating to whether or not the applicants were entitled not to
report for work earlier than they did at the end of their leave
period. The facts are fully summarised by the arbitrator, including
the testimony of the various witnesses that testified during the
arbitration hearing.
The applicants are former employees of the third respondent who were
prior to their dismissal employed by the third respondent
for a
period of about 8 years. The applicants say that during that period
they had clean disciplinary records. The applicants
were charged and
dismissed for, ‘Desertion without leaves and Gross
insubordination
.’
It is common cause that the applicants were prior to the period that
led to this dispute entitled to a four weeks annual leave.
The
annual leave was taken during the December/January shut-down.
The dispute in the current matter arose because of what happened
prior to the shutdown and opening of the factory at the end
of 2004
and the beginning of 2005. The version of the third respondent is
that prior to the shut-down of the business during
December 2004 it
informed all its employees including the applicants that because of
the business imperatives the shut-down would
be for a period of
three weeks and not four weeks as was the case previously.
The applicants disputes that they were told that the period of their
leave period was reduced to three weeks. In applying the
four weeks
leave period, the leave would have ended on the 10 January 2005 and
the three week period would have ended on 4 January
2005.
The deponent to the founding affidavit says that she was surprised
when she received a call from the son of the main member of
the
third respondent, Mr Van Berg, saying that ‘jy moet vereewig
bly.’ She says she was surprised by this comment
and,
accordingly, went to the third applicant to check as to when were;
they expected to report for work. The third applicant
informed the
first applicant that she had received a similar call from Mr Van
Berg.
The applicants reported for work on 10 January 2005 and on arrival
they were informed by the respondent to wait before assuming
their
duties. They were thereafter served with suspension notices.
The respondent’s version at the arbitration hearing was that
two weeks before the December shut-down the employees were
informed
that it was decided that the leave period was three weeks because of
the backlog that had developed. The employees were
also told that
the week taken from their leave would be compensated for during the
year. The employees were told to report for
work on 3 January 2005.
This arrangement was according to the respondent accepted by all the
employees.
The applicants as stated earlier did not unlike other employees
report for work on 3 January 2005 but report on the 10 January
2005.
Mr Van Berg, the managing member contacted the applicants including
another employee who did not report for work on 3 January
2005. That
employee said that she did not know that she was supposed to report
for work earlier than usual but agreed to report
immediately
thereafter. The first applicant’s reply according to the third
respondent, when asked why she did not report
for work, was that she
was not aware but she would in any case not have been able to report
earlier because she was busy arranging
for her child to go back to
school. The third applicant also said that she did not know that she
had to return earlier. She also
said that she was not able to return
earlier because she had a sore knee. The second applicant also said
that she did not know
about the arrangement that they had to report
for work. Unlike the other two, she simply said she was not willing
to return earlier.
Grounds for review
The challenge to the arbitrator’s arbitration award is based
on the following grounds of review:
‘
17.8.1
The Award “makes you whistle” and “shocks a sense”
of fairness.
17.8.2 There is no rational
objective basis justifying the connection made by the First
Respondent between the material properly
available to him and the
conclusion he eventually arrived at.
17.8.3 The evidence presented at
the Arbitration does not support the Award and interference with the
Award is warranted.
17.8.4 Based on evidence and
fats before the First Respondent, a reasonable person would have
concluded that dismissal was unfair.
17.8.5 The conduct of the First
Respondent when endorsing dismissal warrants interference (sic) that
he failed to apply his mind
to relevant issues. In doing so, the
Arbitration proceedings and exceeded his powers.’
The arbitration award
Although the applicants were charged with deserting the work, the
arbitrator found them guilty for absence without leave and
failure
to follow a lawful instruction. In this respect, the arbitrator says
that the respondent incorrectly classified the conduct
of the
applicants but that did not detract from the procedural fairness
during the disciplinary hearing as the applicant understood
the
substance of the charges they had to answer to.
The arbitrator accepted the version of the respondent that it had
informed the applicants and others that the shut down for that
December/January was going to be for only three weeks. The
arbitrator seems to have found that there was no way that the
applicants
would not have known about the shortened period of
closure because, there would have ‘been vigorous discussion
between
the employees in the two weeks prior to the annual shut
down.’ It was for this reason that the arbitrator found that
the
applicants were fully aware of the instruction to return to work
on the 3 January 2005. The conduct of the applicant was according
to
the arbitrator compounded by their failure to comply with the
instruction which was given to them to return to work on 4 January
2005.
It is apparent that the arbitrator accepted the version of the third
respondent and in particular found that its version was
credible as
there was no basis for it (third respondent) wanting to get rid of
the applicants. In this respect, the arbitrator
had the following to
say:
‘
. . .
Lastly, it is most unlikely that the employer would attempt to ‘set
up’ the applicants by secretly informing only
the other
employee to return to work on 3
rd
January. Apart from the fact that this would have been difficult to
achieve as it is common cause that they all worked in close
proximity
to each other there would be an overwhelming risk that such a
strategy would not remain a secret for very long. Furthermore,
the
working relationship between the employer and employees was good and
it (sic) that circumstances, the employer would want to
want to
reopen with only 50% of his workforce being present. . .’
Evaluation
As a general rule, an employer is entitled to dismiss an employee
who absents himself or herself from work without authorisation.
However, even where absenteeism has been proven, the employer still
has the duty of showing that the dismissal was fair. The
period of
absence from work, the number of times that the employee has been
absent from work and the reasons given for being
absent from work
are some of the factors to take into account in considering the
fairness of the dismissal.
In general, it would not be fair to dismiss an employee on the
occurrence of the first absenteeism. However, the employer may
be
entitled to dismiss even on the first occasion of absenteeism
depending on the length of the period of absence and the impact
that
absence from work may have on the operations of the employer.
The offence of absence of work without authorisation is regarded as
more serious when the employee had been instructed to report
for
work. Failure by the employee to provide a satisfactory explanation
for his or her absence from work will, in the absence
of other
factors, such as length of service, ultimately be regarded as being
fair.
In summary, the arbitrator in determining whether the dismissal for
absenteeism was fair has to take into account the misconduct
itself
and the circumstances surrounding that misconduct. In other words,
the arbitrator has a duty in considering the fairness
of the
dismissal to take into account all the surrounding circumstances. In
this respect, the arbitrator has to weigh any important
circumstances that may mitigate the offence committed by an
employee.
It is trite that the responsibility to determine the fairness or
otherwise of a dismissal rests with the arbitrator and no one
else
in our labour law dispensation. In conducting an arbitration
hearing, the arbitrator has to consider all relevant factors
and
circumstances of the case. In this respect, the Constitutional Court
in
Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others,
1
held that:
‘
[78]
In approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or
she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record. This is not an exhaustive list.
[79] To
sum up. In terms of the LRA, a commissioner has to determine whether
a dismissal is fair or not. A commissioner is not given
the power to
consider afresh what he or she would do, but simply to decide whether
what the employer did was fair. In arriving
at a decision a
commissioner is not required to defer to the decision of the
employer. What is required is that he or she must
consider all
relevant circumstances.’
The factors which an arbitrator has to take into account in
assessing the fairness or otherwise of the dismissal was set out
in
Sidumo
and subsequently summarised in
Fidelity Cash
Management Service v CCMA and Others,
2
by the Labour Appeal Court (the LAC) as follows:
‘
(a) take into account the totality of
circumstances;
(b) consider the importance of the rule that had been breached;
(c) consider the reason the employer imposed the sanction of
dismissal, as he or she must take into account the basis of the
employee’s
challenge to the dismissal;
(d) consider the harm caused by the employee’s conduct;
(e) consider whether additional training and instruction may result
in the employee not repeating the misconduct;
(f) consider the effect of dismissal on the employee; and
(g) consider the employee’s service record.
The LAC further held that:
‘
[95]
Once the commissioner has considered all the above factors and others
not mentioned herein, he or she would then have to answer
the
question whether dismissal was, in all of the circumstances, a fair
sanction in such a case. In answering that question, he
or she would
have to use this or her own sense of fairness. That the commissioner
is required to use his or her own sense of justice
or fairness to
decide the fairness or otherwise of dismissal does not mean that he
or she is at liberty to act arbitrarily or capriciously
or to be
mala
fide
.
He or she is required to make a decision or finding that is
reasonable.’
3
In the present case, the arbitrator in arriving at the conclusion
that dismissal of the applicants was fair, failed to take into
account some critical factors in assessing the fairness of such
dismissals. In the first instance, the absence and failure to
comply
with the instruction to report for work on the 3
January
occurred in circumstances where for 8 years the applicants had been
with the third respondent, have always taken leave
during
December/January shut-down.
It is common cause that the employees had a clean disciplinary
record for that period of 8 years. It is important to note that
on
the version of the applicant the parties had a good relationship
with each other during that period. This version has not
been
disputed by the respondent.
The employees placed in dispute the allegation of the respondent
that they were told two weeks before the shut-down that they
would
be taking leave only for three weeks and that they were required to
report on 3 January 2005. Because the respondent had
the duty to
prove that the dismissal was fair, the burden was on it to show that
not only was the announcement in the reduction
of the leave period
made but that it was made in the presence of the applicants.
The key witness for the respondent concerning the announcement that
the employees were informed about the shortened leave period
was the
factory manager, the financial manager and one of the employees.
Mr Berry testified that he informed the employees about the
reduction in the period of leave and that they should all have heard
him because they all they all work in close proximity with each
other in the production line.
The financial manager testified that the decision to shorten the
leave period was taken by Mr Bart, Mr Waiter and her. She also
testified that some employees did approach her to enquire as to why
was the leave period shortened. She says she referred them
to Mr
Bart and someone else.
The fourth witness of the respondent was Ms Nakedi one of the
employee who returned to work on 4 January 2005. It would appear
that the respondent called her as a witness to support a version
that every employee was present when the announcement in question
was made and therefore each one of them knew that they had to return
to work on the 3
January 2005. Her testimony did not
support the version of the respondent in this regard. The pertinent
question asked during
evidence in chief was who told her about the
change in the leave period. She responded by saying that it was Mr
Bart. However,
when asked whether Mr Bart was the one who told them
personally about this arrangement, she responded as follows: ‘No
–I
was not there when Bart told them.’
The witness then says that she was told by the employees about the
announcement of the shortened leave period. As indicated earlier,
she also indicated that she did not report for work on 3 January but
reported for work on 4 January after she was called to do
so by the
third respondent.
Turning to the issue of insubordination, I do not believe that it
was fair to dismiss the employees for failing to comply with
the
instruction to report for work in the circumstances of this case. It
is particularly unfair if regard is had to the point
already made
that the practice of the 4 weeks leave had been in practice for the
last 8 years and the manner in which the reduction
of the period was
introduced is in doubt even on the version of the respondent.
The following factors ought to have been taken into account in
assessing the impact that failure to obey the instruction as alleged
by the respondent may have had on the relationship:
What impact did the incident of failing to obey the instruction to
report for work on 4 January 2005, by the applicants had
on the
credibility of the manager or the supervisor at the respondent’s
workplace.
The prejudice that the alleged incident of refusing or failing to
report earlier for work may have had on the business interest
of
the respondent.
There is no evidence that the incident of failing to report
undermined in any serious manner the overall authority of the
manager or supervisor.
There is no evidence that the alleged conduct of failing to obey
the instruction was of an on-going nature.
There is no evidence that the applicants would not been able to
make up for the damage in the relationship, if at all.
There is no evidence of the likelihood of repeat of the conduct of
refusing to obey lawful instructions.
There is no evidence that the damage caused by failure to obey the
instructions to report for work could not be remedied by
progressive discipline.
In assessing the conduct of the employees in relation to the charge
of insubordination, not only was the arbitrator duty bound
to take
into account that the incident occurred in context where the period
of leave had been shortened, but also there was no
credible evidence
that the applicants were present when the announcement was made
about shortening the leave period.
It is also unfair because in the circumstances of this case, if the
respondent had regarded the failure by the applicants to
report for
work on 3 January as serious enough to warrant a dismissal, it ought
to have warned them when they were phoned, firstly
that their
failure to comply with the changed policy was a serious matter and
further that their failure to report for work the
following day
could be followed by severe punishment. This aspect should have
weighed in favour of the applicant when considering
the
appropriateness of the sanction which the arbitrator was in law
obliged to consider. Had the arbitrator applied his mind
to the
appropriateness of the sanction, he would have found that the
dismissal was too harsh a sanction in respect of both offences.
In light of the above, it is respectfully submitted that the
arbitrator in arriving at the conclusion that the dismissal was
fair, made a decision which a reasonable decision maker could not
have made. If the arbitrator had applied his mind properly
to the
facts and the circumstances of this case, he ought to have found
that the dismissal of the applicants was substantively
unfair.
As concerning the issue of costs, I see no reason why the costs
should not follow the results.
In the premises, the following order is made:
The arbitration award of the first respondent made under case
number MEGA 7135 dated 23 February 2009 is reviewed and set aside.
The arbitration award of the first respondent is substituted with
the following award:
“
1. The dismissal of the applicants was
substantively unfair.
2. The Respondents are ordered to reinstate the applicants
retrospective to the date of their dismissal without loss of any
benefits.”
36.3 The respondents are to pay the costs of the Applicants, the one
paying the other to be absolved.
__________________
Molahlehi J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Retail and Allied Workers Union
For the Respondent: Advocate N du Toit, instructed by Malan Muller
Attorneys
1
[2007] ZACC 22
;
2008
(2) BCLR 158
(CC) at paras 78-79.
2
(2008)
29 ILJ 964 (LAC) at para 94.
3
Id
at para 95.