Impact Ltd (Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for the Wood and Paper Sector and Others (JR 182/11) [2013] ZALCJHB 81; (2013) 34 ILJ 2266 (LC) (12 April 2013)

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[2013] ZALCJHB 81
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Impact Ltd (Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for the Wood and Paper Sector and Others (JR 182/11) [2013] ZALCJHB 81; (2013) 34 ILJ 2266 (LC) (12 April 2013)

REPUBLIC OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 182/11
In the matter between:
IMPACT LTD (MONDI PACKAGING SA
(PTY) LTD)
..............................................
Applicant
and
NATIONAL BARGAINING COUNCIL
FOR THE WOOD AND PAPER SECTOR
...................................................
First
Respondent
COMMISSIONER KHABO MAMBA N O
...............................................
Second
Respondent
DANIEL SIPHELELE MALINGA
................................................................
Third
Respondent
Heard: 10 January 2013
Delivered: 12 April 2013
Summary: Review – dismissal
for deemed desertion following employee taking unauthorized leave in
excess of 5 days - provision
in Code for dismissal after five days of
unauthorized absence – commissioner’s decision that
dismissal substantively
unfair reviewed and set aside for various
irregularities, including commissioner `s failure to determine issue
of justification
for absence and instead focusing on intention to
desert – award reviewed and set aside.
______________________________________________________________
JUDGMENT
______________________________________________________________
MARCUS, AJ
Introduction
This is an application in terms of
section 145
(1) and (2) of the
Labour Relations Act 66 of 1995
to
review and set aside the award dated 18 November 2010 issued by the
Second Respondent under the auspices of First Respondent
under case
reference WPS-GP-10-10-027, in terms of which Third Respondent’s
dismissal by the Applicant was found to be
procedurally fair but
substantively unfair. Inasmuch as Third Respondent sought
compensation for his unfair dismissal and not
reinstatement, he was
awarded compensation of ten months wages in the sum of R224, 720.
Background
Third Respondent (“the
employee”) was employed by the Applicant (“the
employer”) as a fitter and turner
with six years service and a
clean disciplinary record to his credit, prior to his dismissal for
deemed desertion in terms of
a phonogram despatched to him on 13
September 2010, following the employee’s unreported absence
from work from 6 September
2010 when employee was due to report for
work following his leave. In terms of the dismissal letter, he was
advised of his right
to appeal against his dismissal which in terms
of the company’s policy, followed upon his unreported absence
for more than
five days. Whilst the company’s disciplinary
guidelines provide for a graded system of penalties for lesser
periods of
absence without leave, in respect of a period of
unreported and unauthorised absence exceeding five days, the
recommended penalty
is immediate dismissal for a first infringement.
In his answering papers, employee
avers that he received the dismissal notice on 15 September 2010
when he returned to Springs
from his homeland area where he had gone
to attend a traditional family ceremony. Notwithstanding that he was
advised of his
right to appeal the decision to dismiss him, both in
the dismissal letter and verbally by the Transformation officer
Mosala upon
employee’s return to the company on 17 September
2010, it is common cause the employee elected not to appeal his
dismissal.
The third respondent avers that on his return, he
“
explained to Mosala that
I was sick and then he explained to me that I could appeal and I
refused and then he stated that I need
to sign a letter to formalise
the process and to facilitate the payment of my outstanding salaries
and pension fund benefits’.
The termination forms were completed
by the employee to enable the release of his pension fund benefits.
He then left his employment
without further discussion and, foregoing
his right to appeal his dismissal as conveyed to him by Mosala, chose
instead to refer
an unfair dismissal claim to the Bargaining Council
in which he sought compensation for his unfair dismissal and not
reinstatement.
Arbitration Award
Inasmuch as the employee was
dismissed for deemed desertion in terms of the phonogram despatched
to him on 13 September 2010,
following his failure to report for
work or explain his absence from 6 September 2010 onwards, the
Commissioner concluded that
for this to be a fair reason for the
dismissal, the Applicant was required to establish that the employee
intimated expressly
or by implication that he had no intention to
return to work.
Finding of substantive unfairness
based on two grounds
The first ground of substantive
unfairness found by the Commissioner derived from her finding that
the Applicant had failed to
establish an intention to desert on the
part of the employee.
The second ground of substantive
unfairness was that even if it could be said that an intention to
desert or abscond from his
employment was established, dismissal
would not be an appropriate sanction in light of employee’s
eight years of service
and clean record and in the absence of the
employer having taken prior corrective measures before dismissing
him for unauthorised
absenteeism.
These findings which led to the
Commissioner concluding that the dismissal was substantively unfair,
together with others such
as the finding that the employee had sent
an sms to his supervisor informing him that he was ill, are attacked
by the Applicant
on review as gross irregularities in terms of
section 145(2)
, not supported by the evidence before the
Commissioner, and further as conclusions to which no reasonable
Commissioner could
have come to,
on
the application of the standard of review enunciated by the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
1
Applicant submits the award is
further replete with misdirections such as the Commissioner’s
focusing on the label for misconduct
in the form of desertion rather
than applying her mind to the established facts that respondent had
offered no justifiable excuse
for his extended absence from 6-16
September 2010; had not proffered any explanation for his absence at
any time prior to the
arbitration proceedings; had declined the
opportunity to make use of the appeal procedure offered to him in
order to do so; had
shown no remorse for his actions on his return
or subsequently; and had failed to produce independent proof of his
alleged illness.
These failures by the Commissioner to have regard
to the salient facts and issues in the dispute are contended to be
gross irregularities
by the Commissioner, as with her failure to
appreciate that, whatever label be given to the misconduct, “the
main grievance
against the employee was that his absence from 6-16
September 2010 was not explained”. Applicant submits that the
outcome
of these material omissions and misdirections was an award
of ten months compensation in circumstances where only two months

had passed since the date of dismissal to conclusion of the
Arbitration, which Applicants says amounts to ‘rewarding the

Third Respondent with a huge sum of money for gross misconduct’,
argued to be a finding that no reasonable Commissioner
could have
arrived at and as such, reviewable in terms of the Sidumo test. I
proceed to deal with some of these arguments.
Commissioner’s finding that
for respondent’s extended absence exceeding five days to be a
fair reason for the dismissal,
the Applicant was required and had
failed to establish an intention to desert on the part of the
employee.
In my view, there are two major flaws
inherent in this finding, both of which are reviewable
irregularities which prevented the
Applicant from having its case
fully and fairly determined.
In the first place, in terms of the
employer’s policy whereby it infers an intention to desert
from the employee’s
unreported unauthorised absence for a
period exceeding five days, the Applicant is not required to prove
an actual intention
to desert by establishing “that the
employee intimated expressly or by implication that he had no
intention to return to
work” as ruled by the Commissioner. In
terms of the employer’s practice, the employee’s
intention to desert
is, at least on a
prima
facie
basis and in the
absence of evidence to the contrary, inferred merely from employee’s
unauthorised uncommunicated absence
for a period exceeding five
days. In
Tubatse Chrome
(Pty)Ltd v MEIBC and Others
,
2
I took the view that this was not an
unreasonable inference to draw from the employee’s extended
unexplained absence, my
view there being that it was not unfair to
dismiss the employee in these circumstances on the assumption that
he did not intend
returning to work, provided the dismissal was not
final and did not close the door to the possibility of the dismissal
being
reversed upon the employee, should he return, being able to
rebut the inference of desertion which dictated the dismissal by

providing a satisfactory explanation for his absence and failure to
inform his employer thereof. Should he return to work, fairness

requires that he be afforded a fair opportunity to do so.
3
Whilst the Applicant does not make
express provision in its code for a dismissal being effected
in
absentia
on these grounds, following third respondent’s
withdrawal of his counter review, procedural fairness of
respondent’s
dismissal was not an issue in the review. The
Commissioner ruled the dismissal to be procedurally fair.
The second major flaw in the
Commissioner’s finding finds expression in Applicant’s
complaint that in her ruling that
for the dismissal to be
substantively fair, Applicant was required to establish an intention
to desert on the part of the employee,
the Commissioner failed to
appreciate that, however the misconduct is labeled, “the
employer’s main grievance against
the employee was that his
absence from 6-16 September 2010 was not explained”.
Inasmuch as the Applicant’s
disciplinary guidelines provide for the dismissal of an employee who
is absent without leave
for more than five days, a dismissal in
these circumstances would be justified in the absence of the
employee being able to justify
his absence. It is self evident that
the employee bears the onus of providing satisfactory justification
for his absence, this
being a matter within the sole knowledge of
the employee. Failing the provision of such justification, the
dismissal is justified.
Whilst the Applicant, in sending him
a notice of dismissal on 13 September 2010, was justified in
inferring from his extended
unreported absence that the respondent
did not intend returning to work and had deserted his employment,
this was not a final
or irrefutable conclusion inasmuch as it was
still capable of being rebutted by the respondent proving able, upon
his return,
to justify his absence. Should he have done so, the
prima facie
inference of desertion underlying the dismissal
notice would have been controverted. On the other hand, if the
employee fails
to return to work or, upon his return, to proffer a
reasonable explanation for his unauthorised absence or failure to
report
same after being afforded a fair opportunity to do so, his
dismissal for unauthorised absence exceeding five days would be
justified,
and there would be no basis for the employer to reverse
the dismissal for presumed desertion effected in the employee’s
absence
.
It is evident from the logic of this
process that upon the Third Respondent’s return on 17
September 2010, he was required
to provide his employer with a
satisfactory explanation for his absence from 6-16 September 2010
and failure to report same,
failing which the dismissal would be
justified. Hence Applicant’s complaint in its replying papers,
that the Commissioner
failed to appreciate that, whatever label be
given to the respondent’s misconduct, “the employer’s
main grievance
against the employee was that his absence from 6-16
September 2010 was not explained”. The logic of the situation
and the
nature of the misconduct complained of required such
explanation from third respondent, failing which his dismissal for
unauthorised
absence for a period exceeding five days would be
justified in terms of Applicant’s disciplinary guidelines.
As in
Tubatse Chrome
, in
determining whether there was a fair reason for the dismissal,
these are the issues to which the Commissioner was required to
apply herself and determine inasmuch as, upon respondent’s

return on 17 September 2010, the issue of ‘intention to
desert” had been overtaken by the issue as to whether the

employee had offered satisfactory justification for his unauthorised
absence. Instead of determining whether Third Respondent
had
justified his absence, the Commissioner focused instead on the issue
as to whether the employer had established “intention
to
desert” when, in terms of its practice, such intention was
justifiably inferred by the employer from the mere fact of
the
employee’s extended uncommunicated absence, and hence was not
an issue requiring determination by the Commissioner.
Her finding that the Applicant had
not established that Respondent had deserted his employment and did
not intend to return also
rested on her further finding that she
“had no reason to disbelieve the employee’s version that
he, on the contrary,
had sent an sms to Stoltz informing him of his
whereabouts”.
4
In coming to such conclusion, the
Commissioner has overlooked the fact that on his own version, the
employee is not contending
that the sms he avers to have sent to his
supervisor stating he was sick, was in fact received by Stoltz. In
his answering papers,
employee rather argues that the fact “that
Stoltz never received the sms, does not mean that I did not send
it”.
Inasmuch as Stoltz’s denial of receiving the sms is
then not disputed by the Respondent, it follows that Applicant’s

assumption of desertion which gave rise to the phonogram dismissing
the employee on that ground, was justified. Although the
Respondent
could have attempted to rebut this assumption in meeting with Mosala
on his return on 17 September 2010, it is common
cause that he made
no mention of the alleged sms to Mosala, nor did he make use of the
opportunity to appeal his dismissal, offered
him by Mosala on his
return, in which process he could have explained,
inter
alia
, that he had sent the
averred sms. The first mention he made of the averred sms was in the
course of his testimony at the Arbitration
hearing.
To complete the issue of the disputed
sms advising Stoltz that he was sick,
which
employee alleges had to be sent by some young boys from another
place when the employee was unable to get a signal on his
phone; the
Applicant argues that respondent’s allegation of sending an
sms was so improbable and devoid of credibility,
that the
Commissioner’s acceptance of this evidence was in itself a
gross reviewable irregularity. There is some force
in this
submission. Whilst Applicant’s arguments in respect of the
differing versions in Respondent’s explanation
on this issue
and the high improbability of Stoltz, who testified that he always
checks for sms’s received on his phone,
having taken the
trouble to send a shop steward to look for the Respondent at his
home when he knew respondent was sick, could
arguably be met by the
employee’s submission referred to earlier that the fact “that
Stoltz never received the sms,
does not mean that I did not send
it”; what the employee overlooks in this submission is his
statement in his answering
papers in the review, that when the young
boys he allegedly sent to an area from which they could send the
sms, returned with
the employee’s phone,
“
I
observed that the sms was sent”.
5
At bundle 179, Respondent confirms
this version, stating that when the young boys went to send the sms
and then “returned
my phone to me, I observed that the sms was
sent”.
6
If his phone indicated the sms was
sent as averred by Respondent, the inevitable conclusion is that the
message would have been
received on Stoltz’s phone which is
disputed by Stoltz. This renders Respondent’s averment that he
sent Stoltz an
sms, highly improbable, a conclusion reinforced by
the employee’s failure to mention the sms in the course of his
conversation
with Mosala on his return, when he was asked by Mosala
for an explanation for his extended absence. If his absence was
genuinely
attributable to illness, which if properly established,
would be a valid excuse even for an extended absence, when employee
returned
to Springs on 15 September 2010 and received the notice of
his dismissal
in absentia
,
one would naturally expect him to have immediately contacted his
supervisor to explain that he had been away sick and had sent
Stoltz
an sms explaining this. Yet the first mention he makes of the
averred sms is in the course of his testimony at the Arbitration.
He
does not claim to have made mention of it on meeting with Mosala on
his return on 17 September 2010, a glaring omission that
on the
probabilities, severely detracts from the credibility of his
assertion that he had sent an sms advising Stoltz he was
ill. Whilst
Respondent does claim in his papers and in his testimony at
Arbitration to have informed Mosala on his return that
he was sick
(although he does not claim to have advised him that he `d consulted
a traditional healer), this was disputed by
Mosala in his
questioning of respondent at the arbitration (bundle 95). At bundle
113 (record 37), when Mosala asked the Respondent
why he had not
told him that he had attended a traditional healer, Respondent
answered he was scared that Mosala ‘would
tell the lawyers’.
When it was then put to him that an employer cannot trust he was
sick if he omits to divulge this, employee’s
response was
contradictory and incoherent. At p115, respondent states “I
did not see the reason why I must tell you because
its not the first
time for me to be sick. That is the reason I told you I would rather
go to CCMA’. When he was again asked
how he can expect the
employer to know he was sick if this is not disclosed to the
employer, respondent answered that ‘there
was no need for
[him] to tell [the employer] [he] was sick because [he] was
dismissed already”.
7
Clearly, there is no credibility in
Respondent’s version that he told Mosala he was sick on his
return. It is obvious that
the employee’s evidence of having
given this explanation to Mosala, should have been rejected by the
Commissioner in the
face of the blatant contradictions in the
employee’s evidence on this issue, and Mosala’s denial
accepted.
In the premises, I am inclined to
Applicant’s view that the Commissioner’s unreasoned
acceptance of Respondent’s
evidence of having sent his
supervisor an sms, was a gross irregularity in terms of
section 145
(2), as was her failure to properly consider and reject Respondent
`s evidence of having advised Mosala that he was sick.
For the above reasons, I have no
doubt that the Commissioner’s ruling that the establishing of
substantive fairness required
the Applicant “to establish that
the employee intimated expressly or by implication that he had no
intention to return
to work” was a gross misdirection of such
a nature as to prevent her from applying herself to and determining
the real
issue underlying substantive fairness, namely, whether the
employee had offered satisfactory justification for his extended
unauthorised
absence. The Commissioner’s failure to consider
and determine the issue of justification for absence in determining
the
dismissal to be substantively unfair, was a gross irregularity
which ultimately precluded a proper and rational determination of

the issue of substantive fairness.
Substantive fairness
I have alluded to the fact that in
terms of Applicant’s disciplinary guidelines, respondent’s
dismissal for unauthorised
absence for a period exceeding five days
was justified. On the expiry of the five day period, Applicant was
justified in inferring
an intention to desert his employment from
the employee’s disappearance from work without reporting his
whereabouts, which
left the employer in ignorance as to his
whereabouts or the reasons for his absence. Thus the employee’s
dismissal
in absentia
was substantively justified at the
time, provided this did not close the door to the possibility of
reversing the decision if
the employee returned and was able to
satisfactorily justify his absence. (I have indicated that
procedural fairness was not
in issue in the review). As mentioned
earlier, if the employee failed to justify his absence on his
return, his dismissal in
terms of the code was justified, the onus
being on the employee to justify his absence.
In casu
,
when Respondent returned on 17 September 2010 and was asked by
Mosala to account for his absence, he failed to do so. His later

testimony at arbitration that he had advised Mosala he was sick,
should have been rejected by the Commissioner as devoid of
credibility, yet she appears not to have made a finding on this
material issue. Employee also made no mention to Mosala of visiting

a traditional healer or of having sent an sms to his supervisor
stating he was ill. Apart from the fact that these material
omissions in his discussion with Mosala on his return, serve to
substantially detract from the credibility of the excuse for absence

proffered at arbitration (i.e that he was ill), the effect of
employee failing to furnish an explanation for his extended absence

on his return on 17 September 2010, meant that his unauthorised
absence from 6-16 September 2010 had not been justified, which
in
turn meant that in terms of the employer’s code, his dismissal
was justified on this ground. This meant there were no
grounds or
justification for overturning the dismissal in terms of the
phonogram of 13 September 2010. On his return, employee
was offered
by Mosala (and in the dismissal letter), a further and proper
opportunity to justify his absence in an appeal process,
in which he
would have been able to put whatever case he had to the employer for
the decision to be overturned. It is common
cause the employee
elected not to make use of this process, on the grounds that he had
already been dismissed and that he lacked
faith in the employer `s
processes. Whatever the merits in this thinking, its effect, as I
have repeatedly pointed out, was to
leave his extended absence from
6-16 September 2010 unjustified, thereby leaving the Applicant with
no cause or basis for reversing
the dismissal. Here again, the
Commissioner was guilty of a further misdirection in considering the
reasons for absence proffered
by Respondent at arbitration as
potential justification for his absence. In my view, it was not open
to Respondent to wait for
the Arbitration to justify his
unauthorised absence. His election not to provide an explanation in
justification of his absence
to his employer when afforded the
opportunity to do so, both on his return on 17 September 2010 when
an explanation accounting
for his absence was sought by Mosala, and
in the course of the proffered Appeal which he elected not to
pursue, meant that his
employer became entitled to dismiss him in
terms of the code, for unjustified absence in excess of five days.
In my view, his
seeking to justify his absence at the subsequent
arbitration was too late and could not affect the validity of his
dismissal
for deemed desertion, which in effect became confirmed by
the employee’s election on his return, not to proffer an
explanation
in justification of his absence. The fact that the first
time for him to proffer justification for his absence in the form of
alleged illness was in the course of his testimony at arbitration,
also serves to substantially detract from the credibility of
this
assertion as a ground of justification, as does employee’s
failure to obtain any form of sick note from the traditional
healer
allegedly visited by him, whether this would be accepted by the
Applicant as a valid sick note or not. When asked by Mosala
at the
arbitration why he had failed to produce a sick note from the
traditional healer in proof of his condition as is commonly
required
for such extended absence, employee claimed his shop steward advised
him such note would not be accepted by the Applicant.
When Mosala
put to him that legislation provides for notes from registered
traditional healers, the employee offered to make
plans to obtain a
sick note, but failed to do so.
8
In his answering papers, employee
contradicts this offer in his statement that ‘the Applicant
continues to suggest that
I must go and obtain a sick note from the
traditional healer when there is clearly no way that the healer
would now provide one
whereas he did not do so at the time”
(bundle 180). In the absence of any form of objective evidence being
tendered by
the employee to support his averment at arbitration that
he was sick, employee had not satisfactorily justified his absence,

even at arbitration.
Had the Commissioner applied her mind
to whether Respondent had satisfactorily justified his absence, she
could not have found
he had done so in the absence of employee
offering any explanation to Mosala in justification of his absence
on his return, despite
Mosala’s request therefor, or in the
course of lodging an appeal against his dismissal as had been
offered to him and which
he rejected, and in the face of all these
omissions, incongruities, inconsistencies, and contradictions in his
testimony.
I might add that I remain unconvinced
by Respondent’s excuses for not pursuing the appeal process.
Whether he was already
dismissed or not, clearly the purpose of an
appeal would be to enable respondent to account for his absence
which he had not
done as yet, and to controvert the inference of
desertion which triggered his dismissal, and to make representations
to overturn
his dismissal on these grounds. Respondent must bear the
consequences of his election not to take advantage of the
opportunity
to do so. Whilst his professed lack of faith in the
employer’s grievance or appeal processes might or might not
have justification,
clearly this was not an ordinary appeal from a
process in which the employee had already submitted his version. His
dismissal
was effected in his absence on grounds of his deemed
desertion. This meant that on his return on 17 September 2010,
Respondent’s
explanation in justification of his absence had
as yet not been disclosed to his employer. Obviously, his invoking
his right
to appeal his dismissal, would have afforded respondent
the opportunity to place his explanation before the employer for the

first time, which suggests the appeal would have been more in the
nature of an original hearing on the issue of justification for
his
absence, than an appeal. In rejecting this opportunity, Respondent
in effect elected not to disclose the reasons for his
extended
absence until the arbitration hearing. This was not an option open
to the employee in my view. He could not, as he did,
wait for the
arbitration to furnish an explanation in justification of his
absence. This is because, as I have alluded to, in
the absence of
his satisfying the employer that his absence was justified, it was
entitled to dismiss him for unauthorised absence
of more than five
days. Thus for employee to seek to provide such justification at an
arbitration after his dismissal was already
final, makes no sense.
Applicant was entitled to dismiss him in the absence of his
providing satisfactory justification for his
absence, which he
elected not to do. He did not have the option of waiting for the
arbitration to do so. The confirmation of
his dismissal following
his failure to satisfactorily account for his extended absence was
justified, both logically and in terms
of Applicant’s Code.
Formal confirmation was not required, in that employee had already
been dismissed for deemed desertion.
The respondent having elected
on his return not to provide the Applicant with an explanation in
justification of his absence,
meant there was no cause or basis for
Applicant to overturn the dismissal for deemed desertion. In effect,
the Respondent can
be said to have dismissed himself by his actions.
Commissioner’s finding that
that even if it could be said that an intention to desert was
established, dismissal would not
be an appropriate sanction in light
of employee’s eight years of service and clean record and in
the absence of the employer
having taken prior corrective measures
before dismissing him for unauthorised absenteeism.
This is clearly an untenable finding
incapable of justification and as such, one no reasonable
Commissioner could arrive at. On
the face of it, the Commissioner
appears to be suggesting that even if the Respondent absented
himself for some ten days for
no justifiable reason and even on the
basis that he had deserted his employment and had no intention of
returning, she was still
justified in awarding him ten months
compensation of R224,720 for unfair dismissal in light of his years
of service and clean
record and the absence of corrective measures
being taken by the employer.
In so finding, it is clear the
Commissioner has failed to discern the nature and gravity of the
employee’s offence and to
appreciate that employee has failed
to justify his extended absence, even at arbitration which in my
view would have been too
late in any event. In coming to this
conclusion, she has failed to take into account that the employer’s
code provides
for dismissal for unauthorised absence in excess of
five days, that employee produced no objective evidence such as a
traditional
healer’s sick note in justification of his
absence, and that employee chose not to provide an explanation to
the employer
in justification of his absence until the arbitration
hearing and has shown no remorse for his actions. Indeed,
Respondent’s
decision not to offer an explanation for his
extended absence on his return,
ipso facto
justifies his
dismissal for unauthorised absence in excess of five days, and
serves to preclude any suggestion that dismissal
was too harsh or an
inappropriate sanction. Where the employee elects not to offer an
explanation in justification of his absence
or make submissions in
mitigation of sanction or as to why dismissal is not appropriate,
which respondent was offered a full
opportunity of doing in the
course of an appeal which opportunity he spurned and elected not to
take advantage of, it hardly
lies in respondent’s mouth to
seek to argue, after his dismissal becomes final, that dismissal is
not an appropriate sanction;
still less can an arbitrator be
justified in finding this to be the case in the face of the
employee’s calculated decision
not to challenge his dismissal
in a properly convened process offered to him for that purpose. The
Commissioner’s finding
that dismissal was over harsh and an
inappropriate sanction is in the circumstances a gross irregularity
justifying the review
of the award.
Applicant’s attack on the
quantum of compensation awarded
Applicant attacks the quantum of
compensation awarded on grounds of the Commissioner’s failure
to give reasons for “rewarding
the Third Respondent with a
huge sum of money for gross misconduct”, and for awarding the
employee 10 months compensation
in circumstances where only two
months had passed since the date of dismissal to conclusion of the
Arbitration, in other words,
where there is no evidence of financial
loss resulting from the dismissal. Employee did not seek
reinstatement. Even if the Commissioner
believed dismissal was too
harsh or inappropriate, surely this would not justify her awarding
this “huge sum of money”
to an employee who absented
himself for an extended period without justification. If she had
grounds for finding dismissal to
be inappropriate (which she did
not), then the rational award would have been reinstatement without
compensation. Of course,
respondent did not seek reinstatement in
this case. Where compensation is justified in unfair dismissal
cases, its primary purpose
is to compensate an employee for
financial loss arising from the dismissal.
9
In these circumstances, I have to
concur with Applicant’s counsel that in the absence of reasons
being furnished by the
Commissioner for awarding the sum in
question, an award of ten months compensation is inexplicable and
liable to be reviewed
as a gross irregularity.
Section 158
application
Third Respondent’s attorney Mr
Goldberg brought a
section 158
application to make the award an
order of court after having obtained
section 143
certification of
the award and a writ of execution which he subsequently agreed not
to execute pending the determination of this
review. Applicant’s
counsel Mr Boda argued that Third Respondent should be ordered to
pay Applicant’s costs incurred
in opposing the
section 158
application inasmuch as it was superfluous and rendered unnecessary
by the fact that Third Respondent had obtained a writ of
execution
which could be executed should the review fail, nor was it necessary
to interrupt prescription of the award in terms
of decided cases on
this issue. However, I understand the effect of certification on
prescription of awards is still controversial
and has as yet not
been finally determined by this Court or the LAC. In these
circumstances, I cannot find that Third Respondent’s
attorney
acted in bad faith in bringing a
section 158
application, such as to
warrant he or his client being mulcted in costs. I decline to make a
costs order, either in regard to
the
section 158
application or the
application for review.
Review of Commissioner’s
award: conclusions
In
Herholdt
v Nedbank Ltd
,
10
the Court stated that a ‘proper
consideration of all the 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.’ The Court went on to state that it
would be sufficient (to warrant a review) 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’.
11
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 her
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 would 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,
nor
is there any need to further delay the finalisation of this matter
by remitting it to First Respondent to be arbitrated afresh
by
another Commissioner. All the relevant facts required in the
determination of this matter are before me.
I make the following order:
The award dated 18 November 2010
issued by the Second Respondent under the auspices of First
Respondent, is reviewed and set aside
and replaced with a finding
that Third Respondent `s dismissal was substantively and
procedurally fair.
Third Respondent `s application in
terms of
section 158
is dismissed, with no order being made as to
costs of that application.
I make no order as to costs in the
review.
_______________
Marcus, AJ
Acting Judge of the Labour Court
Appearances:
For the Applicant: Adv F.A Boda
Instructed by:
Norton Rose
For the Third Respondent: Mr Goldberg
Instructed by:
Goldberg
Attorneys
1
(2007)
28 ILJ 2405 (CC) at para 110.
2
Case
No JR2679/10 (delivered on 08 February 2013 by Marcus AJ, not yet
reported).
3
Ibid
at para 5, page 4.
4
Award,para
6.5.
5
Bundle
at 164.
6
Bundle
at 179.
7
Record
40, bundle 116.
8
At
bundle 96.
9
See
Kemp v Rawlins
[2009] 30 ILJ 2679 (LAC) and
Rawlins
v Kemp t/a central Med
[2011]
1 (BLLR) 9 (SCA).
10
(2012)
33 ILJ 1789 (LAC) at para 36.
11
Ibid
at para 39.