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[2012] ZALCJHB 125
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G4S Security Services SA (Pty) Ltd v Wabile and Others (JR1968/2010) [2012] ZALCJHB 125 (23 October 2012)
Not reportable
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR1968/2010
In the matter between:
G4S SECURITY SERVICES
SA (PTY) LTD
....................................................
Applicant
and
COMMISSIONER KATLHOLO
WABILE
............................................
First
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
.................................................
Second
Respondent
SATAWU
............................................................................................
Third
Respondent
Heard:
24
February 2012
Delivered:
23
October 2012
Summary: Review
application – Employee dismissed in his absence – company
rule on absenteeism and interpretation thereof
– dismissal
substantively and procedurally unfair.
JUDGMENT
CELE J
Introduction
[1]
The arbitration award dated 7 July 2010 issued by the first
respondent in this matter is the subject of this review application
in terms of section 145 (2) of the Act
1
.
The application was opposed by the third respondent, a union acting
on behalf of its member, Mr Mbombo, who was an employee of
the
applicant.
Factual Background
[2] Mr
Mbombo commenced his employment with the applicant, a private
security industry, on 22 December 2006 as a security guard.
In
December 2009,
the
Customer Services Manager of the applicant, hereafter referred to
also as the company, was Mr Samson Ximba. Mr Joel Khuse was
another
Customer Service Manager in charge of an area different from that of
Mr Mbombo. On 17 December 2009,
Mr
Khuse issued a document to staff informing it of a number of medical
doctors which he said the company would no longer recognise,
stating
therefore that no medical certificates purportedly issued by such
doctors would be accepted and recognised by the company.
That
document bore no endorsement by the company’s human resources
(HR).
[3] On
20
December
2009,
Mr
Mbombo worked a day shift and was to change to a night shift on 21
December 2009 but he failed to report for duty. He reported
to the
control operator of the company, who on that day was Mr Robert
Mkhwanazi, that he was unwell. Mr Mkhwanazi made an occurrence
book
(OB) entry of the report with reference number 370. Mr Mbombo only
returned to work on 22 January 2010.
[4]
The evidence of the company is that when the company noticed that Mr
Mbombo was not reporting for duty from 22 December 2009,
for
more than three shifts, he was marked absent without leave and was
subsequently removed from the company system as his whereabouts
was
unknown. The company decided to charge him with misconduct of being
absent from duty without leave or permission. To that end,
two
telegrams were issued by the company to Mr Mbombo. The first was to
inform him that a disciplinary enquiry was to be held against
him on
06 January 2010. The second was to inform him of his dismissal as the
outcome of that hearing which took place in his absence.
He
maintained that he never received the two telegrams.
[5] According to the
company’s policy, an employee who is off sick should telephone
or communicate with the company to report
the number of days he or
she is booked off sick. The position taken by the company was that Mr
Mbombo failed to comply with that
policy. Mr Ximba’s evidence
in this regard, was in the following terms:
‘
Mr Ximba
:
The company rule say you phone six hours before your shift to say you
cannot attend, if you claim to be sick after returning from
the
doctor, a sick note must be submitted. (sic)
Mr Pupuma
: Can you explain to
the commissioner, what you mean by saying he must report after
returning from the doctor?
Mr Ximba
: If an officer visited
the doctor, was booked off sick, he needs to telephonically inform
the company of when he has been booked
off and make arrangements that
the sick note must be submitted.
Mr Pupuma
: Did the applicant
comply with that?
Mr Ximba
: No.’
[6] The version of the
parties differs on what happened on 22 January 2010 when Mr Mbombo
reported for duty. According to the company’s
only witness Mr
Ximba, he told Mr Mbombo that he had been dismissed, that his medical
certificates he had produced were not recognised
by the company, as
the doctor did not exist, and that he was to lodge an appeal which he
did but dismissal was confirmed.
[7] According to Mr
Mbombo, he telephoned Mr Ximba on three occasions to report that he
was unable to report for work. Mr Ximba
told him not to produce
medical certificates from a ‘Sangoma’ on his return to
work. In the last of the occasions,
Mr Ximba told him that he had a
firearm receipt from the police and that when Mr Mbombo returned to
work, he was to report to him
for it. He was confused about the exact
dates when he telephoned Mr Ximba. He said that while he was away
from work he never received
any telegrams sent to him by the company.
He explained that the address used in the telegrams was wrong because
of an incorrect
spelling of the street name and an incorrect postal
code of 1401 was used instead of 1400.
[8] He said that on his
return to work, he gave Mr Ximba the medical reports to account for
his absence. Mr Ximba said he was to
investigate the medical
certificates as well as the doctor who issued them and he then
telephoned and spoke to the doctor. After
that telephone call he told
Mr Mbombo that, in the mean time, he was to go home and return on the
following day as an investigation
on the doctor was to be conducted.
On the following day Mr Mbombo reported at work but was told to
report at the control room which
he continuously did until 1 February
2010 when another Manager verbally informed him that he had been
suspended. He approached
a shop steward for advice and it was
confirmed to him that a suspension had to be in writing. A written
letter of dismissal was
subsequently given to him by Mr Pupuma the HR
officer of the company. He lodged an appeal so as to inform the
company of his side
of the story but dismissal was confirmed. He then
referred an unfair dismissal dispute for conciliation and later for
arbitration.
[9] At arbitration, he
testified on the understanding he had of the company rule on
absenteeism due to sickness. His evidence in
chief was presented in
the following manner:
‘
Mr
Manganyi
:
Is that all? What is the procedure at G4S, when an employee is
supposed to work and cannot report for work?
Interpreter
: The procedure is
for the employee to call the controller, you must call the
controller, the controller will inform the manager
and then the
manager is to organise a spare of someone to replace you.’
Chief findings of the
first respondent
[10] The first respondent
made various chief findings in his arbitration award from paragraph
41 to 52 which for purposes of this
application included:
‘
[42] The
applicant’s understanding of the application of the rule on
absenteeism is that he was expected to notify the respondent
on his
inability to report for duty beforehand and, if booked off on sick
leave, he was expected to provide copies of his medical
certificate/s
to the respondent upon his return from sick leave. The respondent’s
understanding on the other hand, concurred
with the applicant’s
understanding but extended the application of the rule to include the
expectation that the employee
would communicate any extensions of the
sick leave to the respondent, and that the employee would make
arrangements for the provision
of the medical certificates to the
respondent, presumably during the currency of the sick leave. I find
that there is, as such,
a dispute of facts regarding the proper
application of the rule and, I find further that, in such a dispute,
the respondent bears
the greater onus of proof.
..............
[44] I find that, unless an employee
occupies a position of relative authority as a consequence of which
his or her absence from
work might have a bearing on the capacity of
the respondent to carry on its operations, that employee is entitled
to uninterrupted
sick lease as that employee’s responsibilities
can easily be assumed by another employee at his level in the
employer’s
hierarchy of jobs. The applicant worked as a guard
and there was no evidence placed before the proceedings to suggest
that he wielded
any authority. Instead, the applicant’s
testimony that, after he complied with the absenteeism procedure, it
became the responsibility
of the manager to arrange for a spare
guard, was not disputed. I find that, having reported his incapacity,
the applicant was then
at liberty to remain on uninterrupted sick
leave. Despite the applicant’s meddled testimony that he phoned
Mr Ximba on three
separate occasions during his sick leave, I find
that he was not even under an obligation to prove the existence of
these alleged
phone calls as the respondent, in its own turn, failed
to prove that the rule on absenteeism imposed a duty on the applicant
to
make the phone calls.’
Grounds for review
[11] In support of the
review application, the applicant outlined the grounds for review in
the founding and supplementary affidavits
as:
‘
The award of
the first respondent is unreasonable, irrational and one which a
reasonable commissioner could not have arrived at.
The first
respondent failed to apply his mind entirely to the following
considerations:
1.1. The address that the applicant
had on file was the address that the third respondent had furnished
to it. When it was apparent
that the third respondent was not
reporting for duty and not notifying his manager of his absence, it
stood to reason, that the
applicant had to take steps to summon him
to attend a disciplinary enquiry. At all material times, the
applicant acted in good
faith;
1. 2. When the third respondent did
not attend his disciplinary enquiry, the applicant reasonably decided
to proceed with the disciplinary
proceedings in his absence. Despite
his dismissal, the third respondent suffered no prejudice because he
was afforded an opportunity
to appeal. At his appeal hearing, he was
unable to furnish any acceptable excuse for his behavior.
2. The first respondent entirely
misconstrued the rule in question. The applicant operates in the
service industry and provides
a crucial service, namely safeguarding
the property and lives of clients. From an operational point of view,
it is imperative for
the applicant to expect employees at all times
to inform it about whether they will be unable to attend to their
duties. It is
obvious that it is entirely insufficient for an
employee to contact the employer on only the first day of his
absence. In the present
matter, the third respondent was absent for a
period of a month. It would have been impossible for the applicant to
have known
about this state of affairs in advance. The
applicant
could not divine
for how long it was required to obtain the
services of replacement officers.
3. For an employee, the rule is not
difficult to comply with. The third respondent was well enough to
visit his doctor and accordingly,
he would have been well enough to
make contact with the control room. The third respondent was aware
that his conduct was indefensible
and that is why, at the arbitration
proceedings, he was constrained to present false evidence. In this
regard, he attempted to
suggest that he had made contact with Ximba.
To reiterate, it would have been the easiest thing in the world for
him to have contacted
the control room.
4. The falsity of his subsequent
evidence is borne out by the grounds of appeal that he furnished
after his dismissal. If he had
made contact with Ximba during his
absence, he would have alluded to this vitally important fact in his
written statement setting
out his grounds of appeal. That would have
been an important fact to present in mitigation. The third respondent
knew that the
procedure was to contact the control officer to inform
him about his absence. He also knew that it was imperative that he
obtain
an OB number.
5 On the first day of his absence, he
followed the procedure and obtained the relevant OB number.
Thereafter, he decided for reasons
peculiarly within his own
knowledge to ignore the procedure and thereby leave his employer in
the lurch.
6. Taken to its logical conclusion,
the reasoning of the first respondent is absurd, especially if viewed
in a normal standard commercial
context. According to the first
respondent, irrespective of how many times an employee visits his
doctor and irrespective of how
many times his doctor books him off
from work , all the employee has to do is, on the first day of his
illness, inform his employer
about his problem. The rule of the
applicant clearly designed to inform the applicant on a daily basis
about the number of employees
who will not be able to report for
duty. Once this inform has been obtained, contingency plans can be
put into effect in order
not to prejudice the service provided to
clients. If sites and premises are not properly guarded, it stands to
reason that the
applicant may face civil claims from its clients. In
the security industry, this is not an uncommon occurrence.
7. In light of the third respondent`s
lack of remorse, his brazen disregard of the rules and nonchalant
attitude, reinstatement
was wholly impracticable and unreasonable.
8. The commissioner failed to mention
that in addition to the rule on absenteeism the Third respondent was
aware of an existence
of rule relating to the medical certificates to
be furnished to the Applicant upon illness.
9. The Commissioner further erred by
indicating that he rejected any suggestion by Mr Lucas Pupuma that
the Applicant did not recognise
the third Respondent’s illness
even though such suggestion was not made by him.’
Grou
nds
in opposition to the review application
[12] In essence, it was
denied that the first respondent’s award was unreasonable. In
respect of the telegram, the submission
was that a wrong address was
used and Mr Ximba was challenged to produce the file with the address
used but he did not meet the
challenge. It was denied that the first
respondent misconstrued the rule governing the granting of sick
leave. It was denied that
Mr Mbombo presented falsified evidence. It
was submitted that the first respondent properly held that the
dismissal of Mr Mbombo
was unfair and that he was entitled to
reinstatement.
Evaluation
[13]
The applicant’s submission is essentially that t
he
award of the first respondent is unreasonable, irrational and one
which a reasonable commissioner could not have arrived at and
that
the first respondent failed to apply his mind entirely to the
essential considerations of the case. The test for this application
is accordingly whether the decision of the first respondent may be
said to be one that a reasonable decision-maker could have reached,
see
Sidumo
and Another v Rustenburg Platinum Mines Ltd and
Others.
2
Paragraph 109 of the
Sidumo
decision
is informative in matters such as the present and it reads:
‘
Review of
reasonableness, as explained by Professor Hoexter, does threaten the
distinction between review and appeal. The Labour
Court in reviewing
the awards of commissioners inevitably deals with the merits of the
matter. This does tend to blur the distinction
appeal and review. She
points out that it does so in the limited sense that it necessarily
entails scrutiny of the merits of administrative
decisions. She
states that the danger lies, not in careful scrutiny but in “judicial
overzealousness in setting aside administrative
decisions that do not
coincide with the judge’s own opinion. This Court in Bato Star
recognised that danger. A judge’s
task is to ensure that the
decisions taken by administrative agencies fall with the bounds of
reasonableness as required by the
Constitution’
[14] The merits of this
matter will be dealt with but only to a limited sense. It will
necessarily entail scrutiny of the merits
of an administrative
decision taken by the first respondent. As a starting point,
i
t
is important to point out that it falls within the prerogative of an
employer to set disciplinary rules and standards within its
operational requirements and to punish any material deviation there
from.
In
exercising necessary discipline,
the
employer has to act with fairness.
[15]
In accepting that the applicant dismissed Mr Mbombo, the applicant
simultaneously accepted that it had to show that there existed
a fair
reason on the basis of which it acted fairly to carry out the
dismissal
3
.
Procedural fairness
[16]
The dismissal of Mr Mbombo was carried out in his absence. The
explanation by Mr Ximba was that a telegram was issued to him
and
that he failed to attend the hearing. In terms of a fair procedure,
Mr
Mbombo was entitled to be heard before his dismissal in compliance
with the
audi
alteram partem
rule.
It was put to Mr Ximba that the address used for the telegram was
incorrect in that the street name was wrongly spelt and
the postal
code used was 1401 instead of 1400. He insisted that the address used
was the one in the file of Mr Mbombo, which by
implication would have
been supplied by him. Mr Ximba was challenged to produce the file but
failed to do so. The applicant accordingly
failed to produce reliable
evidence on the basis of which the first respondent could make an
informed decision. Mr Mbombo’s
evidence that his postal code
was 1400 therefore stood with not much challenge and had to be
accepted. The usage of an incorrect
postal code lends credence to Mr
Mbombo’s version and it is probable that he did not receive the
two telegrams.
[17] The applicant
expects its employees to use telephone to report if they are sick. In
the same vein the applicant could have
telephoned Mr Mbombo to
confirm that he received the telegrams. It was foreseeable that
holding a disciplinary hearing in his absence
could lead to him
dismissal. Where it is reasonable and fair to do so, a dismissal has
to be avoided.
[18] The appeal system of
the applicant could not cure a right of Mr Mbombo to be heard. The
appeal involved the consideration of
written submission to the
exclusion of
viva voce
evidence which has the advantage of
cross-examination. Mr Mbombo was not even present when the appeal was
considered. He was merely
told of the outcome thereof. It was
accordingly reasonable of the first respondent to hold that his
dismissal was procedurally
unfair. The ground of review attacking
this finding must therefore fail.
Substantive fairness
[19] The evidence of the
applicant on the rule governing the authorisation of taking sick
leave and whether Mr Mbombo breached that
rule must now be
considered. There certainly is no doubt that an employee who is
unable to tender his or her services in the normal
operation of
business and in terms of a contract of employment, has to communicate
such inability to his or her immediate superior
within a reasonable
time. In many instances the employer might have to rearrange its
business where reliance was placed on the
absent employee.
[20] Mr Ximba’s
evidence was not disputed when he said that once an employee has been
to a doctor and has been booked off
for some period, such information
is to be communicated to the company and arrangements for the
submission of the medical certificate
have to be made. All that Mr
Mbombo said in this regard was that the employee has to call the
controller who would then inform
the manager who in turn would
organise a spare of someone to replace the absent employee. Nowhere
in his evidence did he testify
as to when the medical certificate was
to be handed in to the company. The undisputed evidence of Mr Ximba
ought then to have prevailed,
even in the absence of documentary
evidence. The findings of the first respondent made in paragraphs 42
and 43 of the award are
accordingly contrary to the evidence led by
the parties and constitute a misdirection on his part.
[21] In this case, Mr
Mbombo telephoned the control room on 21 December 2009 and an OB
entry number 370 was made. He said that on
22 December 2009 he
consulted Dr Victor who booked him off. It does not appear anywhere
in his evidence that he disclosed to the
company how long he would be
absent for.
[22] According to the
medical report filed he well knew that he had been booked off from
21/12/2009 up to and including 23/12/2009.
He did not make
arrangements to submit his medical certificate while he was on sick
leave. He said that he again visited Dr Victor
on 26/12/2009 and was
booked off up to and including 05/01/2010. According to him, he
telephoned the company to report that he
was still unwell. He never
reported for how long he would be off sick. He said that he visited
Dr Victor again on 06/01/2010 and
was booked off up to and including
21/01/2010. His evidence was that at around this time he again
telephoned Mr Ximba and reported
being still unwell. It was never his
evidence that he disclosed how long he would be off sick for. He
still retained the medical
certificates with him. The failure to
disclose the period of his absence casts doubt that he even
telephoned Mr Ximba at all. Had
he telephoned, it would come
naturally from Mr Ximba to tell him of the disciplinary hearing
already held or in progress against
him on 06 January 2010 and
possibly of the outcome, depending on what time of the day he would
have phoned.
[23]
Mr Mbombo therefore failed to communicate the necessary information
about his absence and the length thereof to the applicant,
in terms
of the company rule. The first respondent exonerated Mr Mbombo by
finding that once the first report of his incapacity
was made, it was
not necessary for him to make any further communication to the
applicant as he was at liberty to remain on uninterrupted
sick leave.
The basis for this finding was that Mr Mbombo did not occupy a
position of relative authority in the company having
a bearing on the
capacity of the company to carry on its operation. He found that Mr
Mbombo was not even under an obligation to
prove the existence of the
alleged telephone calls as the applicant, in its own turn, failed to
prove that the rule on absenteeism
imposed a duty on Mr Mbombo to
make the phone calls
4
.
[24] The finding of the
first respondent in this regard is at odds with undisputed evidence
led on the company rule on absenteeism.
It also stands in sharp
contrast to the duty of an employee to tender his or her services and
to report the inability to do so.
Mr Mbombo was clearly proved by the
applicant to have breached its rule on absenteeism and was therefore
guilty of the misconduct
charged. The contrary finding by the first
respondent was consequently unreasonable, as having been preceded by
an incorrect assessment
of evidence. This finding makes it
unnecessary to pronounce on the validity or otherwise of the medical
certificates submitted
by Mr Mbombo.
[25]
The applicant proved that the sanction for the misconduct in question
was a dismissal. Mr Mbombo challenged the fairness of
the dismissal
on the basis that his erstwhile colleague, Mr Josiah Radebe, also a
grade C guard, was guilty of absenteeism for
three or more
consecutive shifts but was given a final written warning
5
.
Mr Pupuma who represented the applicant attempted but failed to
distinguish the case of Mr Radebe from that of Mr Mbombo. He
questioned Mr Mbombo about the outcome of the hearing for Mr Radebe,
an issue that was clear. He had been found guilty and was sentenced
to a final written warning.
[26]
Once the issue of Mr Radebe was brought up to challenge the fairness
of a dismissal, the applicant bore the
onus
to
prove the difference, if any in the two cases, to show that it acted
fairly in dismissing Mr Mbombo while giving Mr Radebe a
final written
warning. It did not distinguish Mr Radebe’s case from that of
Mr Mbombo
6
.
The
heads of argument of the applicant refer to Mr Mbombo having vanished
for a period of a month. This is obviously incorrect as
the period of
absence for which he was dismissed is from 21 December 2009 to 06
January 2010.
[27] In accordance with
the parity principle, Mr Mbombo ought to have been given a final
written warning. His dismissal was consequently
substantively unfair.
A period longer than two years has elapsed since his dismissal. The
first applicant ordered the applicant
to reinstate Mr Mbombo
retrospectively with no loss of earnings, from the date of his
dismissal. It has now been found that he
was guilty of breaching the
company rule. I understand the requisite of the justice of this case
to still require that re-instatement,
albeit of a limited nature, be
ordered in this matter. Mr Mbombo approached the arbitration hearing
with the assumption that he
was not guilty. He had no chance to show
any remorse. Nor can it reasonably be said that the employment
relationship has irretrievably
broken down. The law and fairness of a
costs order has now been considered.
[28] The dismissal of Mr
Mbombo was procedurally and substantively unfair.
[29] The following order
will then be issued:
The applicant is to
re-instate Mr Lindile Mbombo retrospectively from the date of one
year after the date of his dismissal, that
is, with effect from 06
January 2011, with no loss of benefits that should have accrued to
him. His earnings as on 06 January
2010 shall constitute the basis
for calculation.
The applicant is to pay
him the back pay within 40 days from the date of this order.
No costs order is made.
___________
Cele J
Judge of the Labour
Court.
APPEARANCES:
FOR THE APPLICANT: Mr
Hutchinson
Instructed by Moodie &
Robertson, Braamfontein, Johannesburg.
FOR THE THIRD RESPONDENT:
Mr Mkhawane
Instructed by Mabaso
Attorneys, Marshalltown, Johannesburg.
1
The
Labour Relations Act Number 66 of 1995.
2
[2007]
12 BLLR 1097
(CC).
3
See
section 192 (2) of the Act.
4
See
paragraph 44 of the award.
5
See
pages 140 to 141 of the pleadings.
6
See
pages 78 to 80 of the transcript, in the pleading bundle.