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[2013] ZALCJHB 16
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Tubatse Chrome (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others (JR 2679/10) [2013] ZALCJHB 16; (2013) 34 ILJ 2333 (LC) (8 February 2013)
REPUBLIC OF SOUTH AFRICA
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable
Case Number: JR 2679/10
In the matter between,
Tubatse Chrome (Pty) Ltd
.......................................................................................
Applicant
and
Metal and Engineering Industries
Bargaining Council
....................................................................................
First
Respondent
Raymond Dibden N O
...........................................................................
Second
Respondent
National Union of Mineworkers
...............................................................
Third
Respondent
Sandra Mahlaela
.....................................................................................
Fourth
Respondent
Heard: 08 January 2013
Delivered: 08 February 2013
Summary: Review – dismissal
for taking unauthorized leave in excess of 5 days - provision in Code
for dismissal in absentia
after 5 days not unfair provided procedure
exists to allow employee to justify absence on return to work –
irregularity in
focusing on intention to desert rather than issue of
justification for absence in determining substantive fairness –
irregularity
in finding the absence justified or reasonable on the
evidence – award reviewed and set aside.
______________________________________________________________
JUDGMENT
______________________________________________________________
MARCUS AJ
Introduction
[1] This is an
application
in
terms of
section
145
(1) and (2) of the
Labour Relations Act 1995
to review and set
aside the award dated 5 October 2010 issued by the Second Respondent
under the auspices of First Respondent under
case reference MEGA
29227, finding that Fourth Respondent `s dismissal by the Applicant
was not for a fair and valid reason and
ordering the Applicant to
re-employ the Fourth Respondent on the same benefits as were
applicable as at date of dismissal.
Background
[2] Fourth Respondent (“the
employee”) was employed by the Applicant (“the employer”)
in May 2008 as an
operator prior to the latter terminating her
services by letter on 14 April 2010 on grounds of desertion of her
employment.
[3] The termination
resulted from the employee absenting herself from work from 7 April
2010 until 14 April 2010 without advising
her employer of her
intended absence over this period or obtaining prior permission from
her employer.
On
7 April 2010, the first day of absence, the employee sent her
supervisor
an
sms
stating that she was “still in Joburg from Mafikeng due to
personal problems with (her boyfriend).I thought I was going
to
arrive early.” It seems her supervisor understood the sms to
mean the employee would arrive at work later that day (7
April 2010)
whereas the employee avers that she intended to convey she was on
route to Mafikeng and might be back later that day
(7 April 2010) or
at latest the following day. However the employee did not return to
work until 14 April 2010. She had no further
communications with her
supervisor to inform him she would be away from work after 7 April
2010 or for this extended period.
[4] On 12 April 2010 ( the sixth day
of absence), the employee was contacted by an official from human
resources department and
reminded of the Applicant `s policy and
procedure applicable on desertion, namely, that unauthorised
unexplained absence exceeding
five days would result in the employee
`s dismissal. Employee intimated she would report for duty which she
did two days later
on 14 April 2010 when she was advised by the
official that in terms of Applicant `s Code and procedure, after the
fifth day of
absence, her services had been terminated on grounds of
deemed desertion by letter dated 14 April 2010. In terms of the Code,
unauthorised
absence exceeding five days is also listed as a serious
offence for which the employee can be dismissed.
Reasons for absence from 7 April
2010 until 14 April 2010
[5] The explanation for her absence
tendered by the employee was that she had been experiencing ongoing
problems in her relationship
with her boyfriend since 2009, leading
to her experiencing emotional disturbance and “mental
pressures” which led to
her being booked off work on occasion
by doctors. On 6 April 2010, the day before she was due to report for
her shift, her mother
put her in touch with one Mahlakoane, a
sangoma, since, according to her mother, the only way to resolve her
problems was for the
employee to be trained as a sangoma. Without
obtaining prior permission from her employer, the employee met with
Mahlakoane in
Mafikeng on 7 April 2010 to undergo such training,
after sending aforementioned sms to her supervisor. Whilst she had
believed
the “initiation process” would be completed on 7
April, enabling her to return to work that day or at latest the
following
day, the employee claims she was informed by Mahlakoane
that her initiation would take eight continuous days to complete, an
averment
at odds with the note from Mahlakoane submitted by the
employee upon her return to work on 14 April 2010, stating that she
performed
the initiation from 12-14 April 2010.
Leaving aside for the present this
apparent contradiction in their versions, employee avers that she
“tried to call (her supervisor)
and hear whether he would allow
me to spend the days up to the 13
th
but he did not answer
the call”. Having failed to get in touch with her employer to
obtain authorisation to take off time
to complete the initiation
course, the employee decided to take the leave anyway, resulting in
her extended period of uncommunicated
and unauthorised absence which,
after the fifth continuous day, entitled the applicant, in terms of
its code, to terminate her
services on grounds of deemed desertion as
it did on 14 April 2010.
The employer `s code provides for
termination in these circumstances at the end of the fifth day of
absence. I can find nothing
unfair in such a procedure, which seems
to represent a rational response by an employer to an extended period
of unexplained unauthorised
absence by an employee, provided the
employer provides the employee with a fair opportunity to explain her
unauthorised absence
should she return to work, enabling the
dismissal to be reversed where an acceptable explanation for absence
is provided, as the
employer did in this instance in implementing its
undertaking in the termination letter of 14 April 2010 to hold a
post-dismissal
enquiry to enquire into the reasons for her
unauthorised absence should she return to work. Two enquiries and an
appeal ensued
which resulted in the Applicant confirming her
dismissal. Second Respondent (the Commissioner) concluded the
dismissal was not
effected for a fair and valid reason and was
substantively unfair, resulting in his award of re employment which
is challenged
by the Applicant as being subject to review on various
grounds.
Basis of Second Respondent `s
conclusion of substantive unfairness
[6] Whilst I agree with the submission
by applicant`s counsel that the Commissioner`s conclusion of
substantive unfairness was not
motivated by any satisfactory or
coherent reasons for such conclusion and was not preceded by any
process of reasoning as might
evidence that the Commissioner had
properly considered and applied his mind in determining this issue,
it would appear that his
conclusion of substantive unfairness rests
on two findings, the first being his finding that there is no
evidence to show that
the employee ever intended not to resume work,
and the second that her absence was “ involuntary as it was a
result of other
circumstances, namely, (employee`s) poor
interpersonal relationship with her boyfriend ”. Both findings
are challenged by
the applicant as subject to being reviewed as gross
irregularities in the conduct of the arbitration in terms of
section
145
(2), and, substantively, as findings which no reasonable
Commissioner could have reached on the evidence before him (the
latter
ground referring to the standard of review enunciated by the
Constitutional Court in
Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others
(2007) 28 ILJ 2405 (CC) at para 2439F).
Commissioner `s finding that
employee had no intention to desert
[7] In my view, the Commissioner`s
focusing on this issue in the course of his determination that the
dismissal was substantively
unfair, is in itself a misdirection and
gross irregularity within the meaning of
section 145
(2) of the Act.
In so doing, I believe he misconceived and hence failed to properly
consider and apply himself to the true issue
before him in regard to
the question of substantive fairness, namely, whether the employee
had furnished sufficient and reasonable
justification for her
extended absence beyond 7 April 2010 (it was clear she would not have
been dismissed had she returned to
work that day or even the
following day as she had indicated in her sms to be her intention).
In my view, it was not required in
the determination of substantive
fairness for the Commissioner to rule on the existence or otherwise
of an intention to desert,
inasmuch as, when an enquiry into the
justification for her unauthorised absence was held upon the
employee`s return to work, the
existence of such intention was no
longer significant or of particular relevance to the issue inasmuch
as the employee had now
returned to work. At this stage, the issue of
substantive fairness translated chiefly into an enquiry into the
justification for
her extended unauthorized absence. This was the
substantive issue to which the Commissioner was primarily required to
apply himself
in determining the issue of substantive fairness at the
Arbitration.
In my view, the
Commissioner`s approach in focusing on whether the employee intended
to desert was flawed and the undue emphasis
placed by him on this
issue in the determination of substantive fairness, amounted to a
gross irregularity within the meaning of
section 145
(2) which
prevented the applicant from having its case fully and fairly
determined. This serves to render such approach reviewable
in terms
of
section 145
(1). See
(
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others (
2009)
11 BLLR 1128
(LC) and
Herholdt
v Nedbank Ltd.
1
[8]
Commissioner`s finding that
employee`s absence was ‘involuntary as it was a result of other
circumstances, namely, (employee`s)
poor interpersonal relationship
with her boyfriend’
.
Applicant challenges this finding as
one not supported by the facts or evidence before the Commissioner
and hence not one that a
reasonable Commissioner could have arrived
at, which renders it liable to be set aside on review on application
of the Sidumo test.
[9] I agree. On a proper analysis of
the facts, the employee`s absence was not in direct consequence of
her “poor interpersonal
relationship with her boyfriend”.
On her own version, these problems had existed since 2009 and her
supervisor was allegedly
aware of them. This distinguishes her
situation from the circumstances giving rise to the LAC `s finding in
the recent case of
Kiewits Kroon Country Estate (Pty) Ltd v
Mmoledi and Others
(
2012)11 BLLR 1099 (LAC). In the
present case, the notes from the sangoma submitted by the employee in
support of her absence, do
not suggest her mental or emotional
condition at the time made it necessary or compelling for the
employee to undertake the sangoma`s
initiation at the time that she
did, between 7 and 14 April 2010, without prior authorisation from
her employer; that there was
any need or urgency for her to undertake
the initiation at that point in time, particularly considering that
the employee’s
problems which the course was intended to
address had been ongoing since 2009, or that any particular harm or
adverse consequence
would ensue from her not performing the
initiation on 7 April 2010. Indeed, the sangoma’s notes do not
even support the employee
`s averment in her answering papers that
she stayed away after 7 April 2010 in order to complete the
initiation over eight days
as advised by the sangoma. The note from
the sangoma submitted by the employee on her return to work on 14
April 2010 states that
the employee was performing the ritual
initiation for her ancestors from 12-14 April 2010. A second
subsequent note stated that
he had examined the employee on 7 April
2010. Neither note suggests the employee’s mental or physical
condition prevented
her reporting for work at that time or that her
mental or physical health would be adversely affected by her doing
so, as was the
case in
Kiewits
. This places the present facts
in a quite different category from the circumstances prevailing in
Kiewits
where the sangoma had given evidence at the employee
`s enquiry that the employee was very ill when she attended him for
treatment
and “would have died or suffered a serious misfortune
if she would have ignored the ancestors’ calling and continued
to work.”. The Court there accepted the employee `s claim that
she had received a call from the ancestors that she believed
she was
bound to obey on pain of death.
[10] In the present case, neither the
employee or sangoma placed any evidence before the internal enquiry
suggesting any adverse
or harmful consequence to the employee would
result from her not attending or continuing with the initiation
course on 7 April
2010, or that her condition called for her
immediate participation in that course. The evidence before the
Commissioner does not
suggest her absence on the days in question was
the direct or immediate consequence of her emotional problems or
relationship with
her boyfriend as found by the Commissioner. On her
own papers, these problems had been ongoing since the previous year.
Employee,
on her own papers, elected to stay away from 7 April 2010
in order to complete the initiation course at her own convenience and
that of the sangoma, without regard to the convenience of her
employer. She acknowledges she elected to do so without obtaining
prior authorisation from her employer. Her extended absence arose
from the employee’s decision to continue with the course
after
she was unable to contact her supervisor to obtain authorisation for
her absence. The outcome was the confirmation of her
dismissal
following hearings held to enquire into her reasons for absence.
Nowhere in her papers does the employee suggest her
physical or
emotional condition required that she perform the initiation ceremony
for her ancestors there and then, when meeting
with the sangoma on 7
April 2010. She only resorted to this course of action as a means of
addressing her personal problems, at
the suggestion and instigation
of her mother. Nor do the sangoma’s notes submitted by the
employee, suggest that her condition
required her immediate
attendance to perform the initiation. Indeed, as pointed out earlier,
the sangoma’s note rather contradicts
the employee’s
version in her answering papers that she took leave of absence on 7
April 2010 to comply with the sangoma`s
advice that she needed eight
continuous days to perform the initiation. The note from the sangoma
states that she performed the
ritual practice for initiation from
12-14 April 2010.
[11] I must therefore concur with
applicant’s submission that the evidence before the
Commissioner does not suggest the employee`s
unauthorised absence was
involuntary or due to circumstances beyond her control. Her absence
was at best for the employee the result
of her voluntary decision,
without authorization, to take off the eight days she claims she was
advised by the sangoma were required
for the initiation process, an
averment itself at odds with the sangoma `s note proffered by the
employee in justification for
her extended absence, in which the
employee is stated to have performed her ritual practice from 12-14
April 2010.
Even were this contradiction in her
explanation to be overlooked and one were to accept her explanation
that she took the time off
to perform the initiation, the employee
does not suggest in her papers that her condition required her
engagement in the process
there and then without obtaining prior
authorisation from her employer. This is conceded by the employee’s
statement in her
answering papers that when she learned from the
sangoma that her initiation would take eight days to complete, she
‘then
tried to call (her supervisor) to advise him and
hear
whether he would allow me to spend the days, that is, to the 13
th
,
[my underlining], but he did not answer the calls’. Having
properly attempted to contact her employer for the required
authorisation
to take the leave required to perform the initiation
and having failed to do so, her proper course was then to return to
work and
seek the required authorisation. Had she done so, she would
have avoided her dismissal. Instead, at best for the employee, she
elected to remain in Mafikeng to perform the sangoma’s
initiation without obtaining the employer `s permission for her
extended
absence, hence the ensuing confirmation of her dismissal by
the employer following her return to work.
[12] On the
evidence before the Commissioner, the employee has not established
reasonable justification for her unauthorised absence
from 7 April
2010 until 14 April 2010, which is a dismissible offence in terms of
the Code.
For
the reasons stated, I agree with the applicant that the
Commissioner’s conclusion that the dismissal was not for a fair
or valid reason was not one that a reasonable Commissioner could have
arrived at, which renders it liable to be set aside on review
in
terms of the
Sidumo
test
.
I am further of the view that in concluding the dismissal to be
substantively unfair, the Commissioner misconceived the issues
and
committed a gross irregularity by focusing on the question of whether
intention to desert had been established when this issue
had been
overtaken by the employee `s subsequent return to work and her
attempt to justify her unauthorised absence by her decision
to stay
away in order to perform the initiation. A further gross irregularity
arose from the Commissioner’s failure to properly
consider and
address the real issues pertaining to substantive fairness,
pertinently the question as to whether the employee had
justified her
unauthorised absence or proffered an acceptable explanation
therefore, rather than whether she had intended to desert.
In finding
the employee’s absence to be involuntary or due to
circumstances beyond her control, and in view of the absence
of
satisfactory evidence supporting such conclusion and the absence of
reasons given by the Commissioner for this conclusion, the
inevitable
inference is that he has failed to apply his mind to this issue,
thereby preventing the applicant from having its case
fully and
fairly determined. In
Herholdt
,
the court stated
that one of the duties of a commissioner, in answering the question
whether the dismissal was for a fair reason,
is to determine the
material facts and then to apply the provisions of the LRA to those
facts. Commissioners who do not do so do
not fairly adjudicate the
issues.
2
In the
Herholdt
decision, the LAC
confirmed the Labour Court’s view that a failure by the
Commissioner to have regard to material facts will
constitute a gross
irregularity in the conduct of the arbitration as this will preclude
the aggrieved party from having its case
fully and fairly determined.
The Court stated that a ‘proper consideration of all the
relevant and material facts and issues
is indispensable to a
reasonable decision and if a decision maker fails to take account of
a relevant factor… the resulting
decision will not be
reasonable in a dialectic sense. Likewise where a commissioner does
not apply his or her mind to the issues
in a case, the decision will
not be reasonable’.
3
The Court stated it
to be sufficient to warrant a review on this ground ‘that the
Commissioner has failed to apply his mind
to certain of the material
facts or issues before him, with such having potential for prejudice
and the possibility that the result
may have been different’
4
.
[13] In conclusion, I find the
commissioner, in concluding the dismissal to be substantively unfair,
has ignored or discounted relevant
evidence, has taken into account
irrelevant evidence, and has failed to properly apply his mind to
material issues and as a consequence
has committed gross
irregularities in the conduct of the arbitration which have precluded
the Applicant from having its case fully
and fairly determined. The
decision was in my view also one that a reasonable Commissioner could
not have come to. On both these
grounds, I am of the view that the
award is liable to be set aside in terms of
section 145
of the Act.
In light of this conclusion, there is no need for me to have regard
to the further grounds of review raised by the
applicant. I have
decided not to make a costs order. I make the following order:
[14] It is ordered that;
1. The award dated 5 October 2010
issued by the Second Respondent under the auspices of First
Respondent under case reference MEGA
29227, is reviewed and set
aside.
2 The dispute is referred back to the
First Respondent to conduct an arbitration de novo before a
Commissioner other than the Second
Respondent.
3 There is no order as to costs
__________________
Marcus AJ
Acting Judge of the Labour Court
APPEARANCES
FOR THE APPLICANT: Adv Kutumela
FOR THE RESPONDENT: Mr M.E.S Makinta
1
2012
33 ILJ 1789 (LAC), at 1801 ,para 39.
2
Heroldt
at 1801 H.
3
Heroldt
1800 F-H.
4
Heroldt
at 1802 A-C.