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[2013] ZALCJHB 36
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Cullinan Diamond Mine (Pty) Ltd v Molapo and Others (JR 2061/2010) [2013] ZALCJHB 36 (8 February 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Not o
f interest to other judges
case no: J
R 2061/2010
In the matter between:
CULLINAN DIAMOND MINE (PTY) LTD
Applicant
and
S S MOLAPO
First Respondent
CCMA
Second Respondent
JOHN MASONDO
Third Respondent
Heard
:
05
February 201
3
Delivered
:
08
February 201
3
Summary:
Review of an award in instances
where the Arbitrator is alleged to have ignorud material and relevant
evidence and factors.
JUDGMENT
MOSHOANA AJ
Introduction
This
is an application to review and set aside an
award issued by the first respondent under the auspices of the
second respondent.
The
second respondent found that the dismissal of
the third respondent Masondo was procedurally fair and substantively
unfair. Whereafter
he ordered the applicant to reinstate the third
respondent on the same terms and conditions that existed prior to
his dismissal.
On 26 March 2006, he made an order to restore
benefits and to pay the third respondent back pay.
Background facts
The
third respondent was employed as an artisan. He was booked off sick
from 29 October to 4 November 2009. On 5 November 2009,
he was due
to report for duty at 06h00 am. He reported for duty at 10h42. He
testified at the arbitration that he went to a Pharmacy
to collect
his medication. On his return, he completed a form to the effect
that he was there for the full day. His supervisor
allegedly advised
him to change the form on two occasions but to no avail. He disputed
this advice. On 10 November 2009, his
supervisor, Mr Horn advised
payroll to dock from his salary 5 hours pay.
On
23 November 2009, the third respondent received a notification with
allegations of misconduct. He was charged with fraud for
booking the
full shift, absent without permission, alternatively, poor time
keeping in that he entered the mine at 11:20 instead
of 06:00 and
leaving an hour before time. He was found guilty and dismissed.
Aggrieved thereby, he referred a dispute to the
second respondent.
The first respondent arbitrated the dispute and found in his favour.
The applicant was aggrieved and launched
this application.
Evaluation
This being a review application, this court shall
be guided by the test as developed in the
Sidumo
and Another v Rustenburg Platinum Mines Ltd
judgment.
1
The test requires no repetition in this judgment.
It is by now well known in the labour law community. The applicant's
complaint
is essentially that the first respondent made findings not
supported by evidence adduced and failed to apply his mind to the
evidence presented before him. He failed to consider the balance of
probabilities and to apply his mind to the probabilities. He
failed
to consider corrective discipline. He erred in reinstating the third
respondent.
On
the facts properly placed before the second respondent, it appeared
to have been disputed that there exists a norm that when
an employee
attend to collect medication such an employee would be deemed to
have been there for full day. A further dispute
was whether Horn
asked the third respondent to correct the forms. On the evidence
before him, he found that the probabilities
are evenly balanced. On
the strength of that, he found that a party with an onus has failed
to discharge the onus. On the issue
of absence without permission,
he found that since there was a justification the dismissal was
unfair.
In
the light of the above, this court is unable to fault the first
respondent on his finding of fraud. The evidence suggested
that the
norm support the representation made by the third respondent. In the
circumstances, fraud requires an element of intention.
I do not
believe that with the norm in place, it would have been the
intention of the third respondent to misrepresent facts.
However,
with regard to the finding that since the third respondent had a
reasonable explanation that he is not guilty of the
misconduct
alleged. The finding is at odds with the evidence that the third
respondent’s absence was without permission.
The evidence is
overwhelming that the third respondent needed permission. The fact
that he had a justification to be absent does
not detract from the
fact that his absence was without permission. Had he made a finding
that the third respondent was absent
without permission, which he
should have in the light of the evidence, have had regard to the
final written warning in considering
whether a sanction of dismissal
was appropriate or not. By not doing that, he committed an
irregularity which vitiates his award.
In the light of the above, it is my view that the
award of the first respondent is reviewable. Having found that I
believe that
this court is in a better position to substitute the
award. I do not believe that dismissing the third respondent for
being absent
for five hours was appropriate. The fact that he
understood the norm to apply in a particular manner diminishes his
blameworthiness.
Also the fact that his salary was docked suggests
that he was punished for his conduct and to dismiss him also was
harsh. I do
not accept that the relief of reinstatement would have
been out of kilter even in the circumstances where the first
respondent
would have considered that there was no permission.
However, what concerns me is a factor that the first respondent
seems to
have turned a blind eye on. The fact that there was
evidence suggesting bad blood between the third respondent and his
supervisor
Mr Horn is a relevant factor when it comes to a relief.
2
It was a critical factor to have been taken into
account even if not raised by any of the parties.
It
renders, in my view, reinstatement impracticable. It was never
contended that once reinstated, the third respondent would not
work
with Mr Horn anymore. Although the first respondent found that the
better version on the allegation of correction of the
form is that
of the third respondent, it must follow that it will make it
impossible for the two to work together. It will be
difficult it
seems for Horn to place any trust on the third respondent given the
circumstances surrounding the dismissal, which
clearly renders
continued employment intolerable in the light of the operative final
written warning as well.
The LAC recently quoted with approval the
decision of this court in
Southern Sun
Hotel Interest (Pty) Ltd v CCMA
and
Others
3
in the reported judgment of
Herholdt
v Nedbank
Limited
.
4
In essence, the LAC approved the sentiment that
if a commissioner fails to take into account material evidence or
has regard to
irrelevant evidence commits misconduct and or gross
irregularity. I find the second respondent to have done that in
ignoring
a relevant factor when he ordered reinstatement.
Order
In
the results, I make the following order:
The
award issued by the second respondent is hereby reviewed and set
aside and is replaced with the order below.
The
dismissal of the third respondent is procedurally fair but
substantively unfair.
The
applicant is ordered to pay the third respondent compensation in the
amount equivalent to 12 months salary applicable at the
time of
dismissal less the statutory deductions applicable.
Each party to pay its own costs.
_______________________
Moshoana,
AJ
Acting
Judge of the Labour Court of South
Africa
Appearances:
For the Applicant: Advocate C Prinsloo
Instructed by:
Helena
Strijdom Attorneys
, Meyerspark
For the Third Respondent:
Advocate
J Oschman
Instructed by:
GVDB Inc
,
Pretoria
1
(2007)
28 ILJ 2405 (CC).
2
See
Maepa v CCMA and Others
[2008] ZALAC 2
;
[2008] 8 BLLR 723
(LAC)
.
3
[2009]
11 BLLR 1128
(LC).
4
[2012]
9 BLLR 857
(LAC)
at
para 33.