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[2014] ZALCCT 40
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South African Catering Commercial And Allied Workers Union obo Mzazi v Commission for Conciliation Mediation And Arbitration and Others (C503/2013) [2014] ZALCCT 40 (31 July 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
C503/2013
In
the matter between:
THE
SOUTH AFRICAN CATERING COMMERCIAL
AND
ALLIED WORKERS UNION OBO MZAZI, L
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
S GOLDSCHMIDT,
N.O.
Second
Respondent
PICK
‘n PAY RETAILERS (PTY)
LTD
Third
Respondent
Date
heard: 13 May 2014
Delivered:
31 July 2014
Summary:
Review of an arbitration award iro substantive fairness of a
dismissal.
JUDGMENT
Rabkin-Naicker
J
[1]
This is an opposed application to review and set aside an arbitration
award under case number WECT 2454 – 13 dated 13
May 2013. The
second respondent (the Commissioner) found that Luyanda Mzazi’s
(Mzazi) dismissal was substantively fair, but
procedurally unfair.
The applicant challenged the finding on substantively fairness in
these proceedings.
[2]
Mzazi started working for the company in June 2004. He earned a
salary of R4800 per month. He was transferred to the new Middestad
store from another outlet with his fellow employees as a storeman in
2012. He was dismissed after being charged and found guilty
of
absconding from work. Mzazi claimed that he had authorised leave.
[3]
The applicant union relies on the grounds as set out in section 145
of the LRA and argues that the award was not rationally
justifiable
in terms of the reasons given for it. It submits that the analysis of
evidence contained in the award ignored crucial
evidence presented
during the arbitration regarding the minutes of a meeting which took
place on 1 February 2012. This evidence
according to Mzazi,
established that he did consult with his fellow employees after a
meeting that was held on 1 February 2012,
and proceeded to report the
outcome to his manager in the Groceries Department, Mr Jantjies, and
submit a leave form. His case
was that he was scheduled to take leave
on the 27 December.
[4]
The Commissioner recorded the evidence by the assistant manager of
the store, Mr Yusuf Oyekynie (Oyekynie) who had joined the
company
five months before the events in question as follows:
"…. He
explained the process that is followed when an employee applies for
leave. Once the employee indicates their
intention to take leave, the
needs of the business is looked at to see if the person can be
granted leave. He added that it depends
on the time of year and the
notice period for the leave request. He emphasised that there must be
mutual agreement between management
and the employee.
Oyekynie continued to
explain that a leave form must be completed, signed by the employee
and manager, and this is captured on the
relevant system. Part of the
procedure is to give a copy to the employee. He confirmed that there
was a formal leave policy. He
read the relevant clause into the
record and that confirms that there needs to be mutual agreement
concerning the leave…
Oyekynie stated that the
applicant approached him on 21 December 2012 June to inform him that
he wanted to take leave. His initial
response was that he had not
approached him before, despite having been at the store for the past
five months, adding that it was
the busiest time of the year. The
applicant insisted that he had to take leave. Oyekynie said that the
store manager, who was in
the office at the time, commented that he
was not aware that he had been granted leave. He told the applicant
that he would give
him leave in the first week of January, but had to
ensure that there was someone in his place.
Oyekynie said that the
applicant told him that he always takes leave in January and that
there was a crisis in the family. He responded
that they should treat
the leave as occasional leave, pending approval. (Occasional leave is
granted in cases of death or illness
of a family member). Oyekynie
stated that after the discussion he did not see the applicant again,
although he was waiting for
him to complete the necessary paperwork.
He was adamant that he had not authorised leave for the applicant,
nor had there been
any misunderstanding between the two of them.
Oyekynie noted that the
applicant held a very important position and that it was essential
the proper arrangements were made before
he proceeded on leave. He
said the applicant returned to work in February 2013. Telegrams were
sent to the applicant, but there
was no is no response from him.
Oyekynie stated that the applicant's disciplinary hearing was held in
his absence. Proper permission
was obtained for it to proceed without
his presence.…”
[5]
It was common cause that the telegrams sent to Mzazi were not sent to
the Eastern Cape where he had gone to. The Commissioner
found that
since the company denied that leave for Mzazi was granted: “…
the
onus to prove that he did indeed fill in the leave form lay with the
applicant. He has failed to produce the leave form, and
I thus have
to accept that no leave form was completed
.” (my emphasis)
He went on to find that: "From the applicant’s witnesses
it is clear that while the policy is to give employees copy of their
leave forms, this does not happen in practice. While I understand
that the respondent used this to support their case, and the union
successfully undermined the point, it was still the responsibility
of
the applicant to produce the original form and submit as evidence to
prove that in fact his leave was granted.
Furthermore, if indeed
the leave form was captured on the system, the applicant would have
been paid for the leave he took.”
He then proceeded to find
that the applicant did indeed take unauthorised leave.
[6]
The Commissioner found that an important issue in determining that
the dismissal was substantively fair was that the unauthorised
leave
was for a lengthy period. The Award records that: “If he had
taken just a few days, then it could have been a mitigating
factor in
favour of the applicant. Not only did the applicant take extended
leave, he also took leave during the busiest time in
retail. He held
the key position which aggravated his conduct, especially during that
particular time of the year”.
[7]
It was Mzazi’s evidence at the arbitration that the family
matter that he had to attend was the unveiling of his parents’
tombstones. Although this was only mentioned under cross-examination,
the evidence of the assistant manager Oyekynie was to the
effect that
Mzazi told him there was a family crisis and Oyekynie had told him
that they could treat the leave as occasional leave,
pending
approval.
[8]
It was common cause at arbitration that the days taken as leave were
leave days owing to Mzazi, the issue in dispute being the
authorisation thereof. Mzazi returned to the workplace at the end of
his leave period. On that question, and the charge of absconding
from
the workplace, the Commissioner in considering the question of
procedural fairness found as follows:
"The respondent has
explained their motivation in dismissing the applicant in abstentia.
Under the circumstances at the time, this made sense
. However,
they should have dealt with the situation differently when the
applicant eventually returned to work. They should have
had another
disciplinary hearing in order to give the applicant a proper
opportunity to explain his conduct, and in order for him
to properly
defend himself.
The fact that the
applicant did return to work, and reported for duty, meant that there
was no intention to abscond. This placed
his conduct in a different
light. While the absence of the applicant was lengthy, the applicant
also had a long service history
with the respondent.
The
respondent is a large employer with a sophisticated and
well-resourced HR department. The applicant was entitled to the very
basic principle of fairness and that is the right to state your side
of the matter, and to defend himself against allegations of
misconduct accordingly I find that the applicant's dismissal was
procedurally unfair." (my emphasis)
[9]
The Commissioner’s considerations above relating to the
procedural fairness of the dismissal include issues generally
reserved for the question of whether a dismissal was substantively
fair or not i.e. the long service history of an employee and
in this
case, the finding by the Commissioner that in fact there was no
intention to abscond by the employee, absconding being
the charge for
which he was dismissed. One presumes that the Commissioner had the
case of
Khulani Fidelity Services Group v CCMA & others
[2009]
7 BLLR 664
(LC)
in mind in which Molahlehi J had this to say:
“
'Desertion
consists of absence without authorization by the employee, and with
the intent to remain permanently away from his or
her employment. The
intent can generally be inferred from the circumstances of the
absence of the employee. The period of absence
and the surrounding
circumstances can serve as an indication of the intention not to
continue with the contract of employment.”
[1]
[10]
It was submitted on behalf of the respondent company that the grounds
for review in this matter, amounted to examples of evidence
not
properly considered or not considered at all by the Commissioner.
These grounds did not amount to a basis to review the award.
The
questions that a reviewing court should ask were set out in the
matter of
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine)
[2]
in which the Labour Appeal Court stated as follows:
"the questions to
ask are these (i) in terms of his or her duty to deal with the matter
with the minimum of legal formalities,
did the process that the
arbitrator employed give the parties full opportunity to have their
say in respect of the dispute?(ii)
Did the arbitrator identify the
dispute he was required to arbitrate (this may in certain cases only
become clear after both parties
have given their evidence)? (iii) Did
the arbitrator understand the nature of the dispute he or she was
required to arbitrate?
(iv) Did he or she deal with the substantial
merits of the dispute? And (v) Is the arbitrator's decision is one
that another decision
maker could reasonably have arrived at based on
the evidence?”
[3]
[11]
The Supreme Court of Appeal in the
Herholdt
matter
[4]
summarized
the position regarding the review of CCMA awards as follows:
“
A review of a CCMA
award is permissible if the defect in the proceedings falls within
one of the grounds in s 145(2)(a) of the
LRA. For a defect in
the conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator
must have
misconceived the nature of the enquiry or arrived at an unreasonable
result. A result will only be unreasonable if it
is one that a
reasonable arbitrator could not reach on all the material that was
before the arbitrator. Material errors of fact,
as well as the weight
and relevance to be attached to particular facts, are not in and of
themselves sufficient for an award to
be set aside, but are only of
any consequence if their effect is to render the outcome
unreasonable.”
[12]
The issue that this court has to decide is whether the decision that
Mzazi’s dismissal was substantively fair was one
that a
reasonable decision maker could not make, taking into account the
evidence before the Commissioner. The way that a Commissioner
should
approach this enquiry was set out by the Constitutional Court in
Sidumo
[5]
as follows:
“
[78]
In approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances.
He or she will
necessarily take into account the importance of the rule that had
been breached. The commissioner
must of course
consider the reason the employer imposed the sanction of dismissal,
as he or she must take into account the basis
of the employee's
challenge to the dismissal.
There are other factors
that will require consideration. For example, the harm caused by the
employee's conduct, whether additional
training and instruction may
result in the employee not repeating the misconduct, the effect of
dismissal on the employee and his
or her long-service record. This is
not an exhaustive list.
[79]
To sum up. In terms of the LRA, a commissioner has to determine
whether a dismissal is fair or
not. A commissioner is not given the
power to consider afresh what he or she would do, but simply to
decide whether what the employer
did was fair. In arriving at a
decision a commissioner is not required to defer to the decision of
the employer. What
is required is that he or she must consider all
relevant circumstances.”
Evaluation
[13]
The Commissioner did not find that Mzazi was guilty of the offence he
was charged with, in that Mzazi had no intent to abscond
from his
work, finding that his return to work after the leave period placed
his conduct “in a different light”, and
he should have
been given a proper opportunity to explain his conduct on his return
– one can only presume because this may
have prevented his
dismissal.
[14]
The issue of Mzazi’s clean disciplinary record, the reason for
his need to return to the Eastern Cape to unveil the tombstones
of
his parents and Mazizi’s relatively long employment with the
company were all considerations that should have been addressed
by
the Commissioner in the process of coming to a decision regarding the
substantive fairness of the dismissal. They were not.
Further, the
reasoning that a disciplinary hearing may have put Mzazi’s
absence in a different light, highlights the flaw
in his approach.
The Commissioner’s function is to make a decision about the
fairness of a dismissal based on an objective
conspectus of all the
relevant facts and circumstances having heard the evidence in a
de
novo
hearing. It is not to consider whether an employer’s
decision made sense at the time of the dismissal. There
are other facts and circumstances arising from the record that impact
on the reasonableness of the Commissioner’s decision.
[15]
The record of the proceedings reveals that the Middestad store had
opened up in the middle of the year in question. A lot of
leave
allocations were planned at previous stores which was why the
February 1 meeting was called according to the employer's witness,
Mr
Jantijies, who stated that: "that was the importance to tell the
people about it and bring forward the dates to plan the
leaves
because all their leaves….were in the December, November
period." It also is apparent from the record that the
management
had not filled in any names of employees on the leave planner for the
period July to December 2012. Mr Janties left
the store around June
of 2012 and according to the evidence of Oyekyne when he looked at
the leave planner in June, "there
was nobody's name indicated.”
Poor administration of the leave allocations was evident on the
company’s own evidence.
[16]
In addition, Mazizi’s evidence was that when he came to see the
managers on the 21 December, it was to remind them that
his leave was
due:
"I was there to tell
them that I'm going to leave, I was just said that the date was
coming closer and there was nobody in
fact (indistinct –
interpreter not speaking clearly) to come and work on my place whilst
I am on leave, so I was saying that
the date is coming nearer, nobody
is going to come and replace the storeman, then that is why in fact I
went to tell them to say
look, I'm going to leave on that specific
date."
[17]
I should also make mention of the Commissioner’s error of law
when he found that Mazizi had an ‘onus’ to
discover his
leave form. This error was further compounded by the fact the
Commissioner had acknowledged that employees were not
given copies of
their leave forms despite this being a policy of the company.
[18]
Taking all of the above into account, I find that the decision that
the dismissal was substantively fair is one that a reasonable
decision-maker could not make. Mr Maziza was represented in these
proceedings by his union and a costs order is not apposite. The
award
stands to be reviewed and substituted as set out in my order below:
Order
(1)
The award under case number WDC T2454 – 13 is hereby reviewed
and set aside and substituted as follows:
“
(a)
The dismissal of Mr L .Mzazi was procedurally and substantively
unfair;
(b)
The third respondent is ordered to retrospectively reinstate Mr
Mazizi within 14 days
of this order.”
(2)
There is no order as to costs.
_______________
H. Rabkin-Naicker
Judge of the Labour
Court of South Africa
Appearances:
Applicant:
SACCAWU
First
Respondent: Bowman Gifillan Attorneys
[1]
at para 15
[2]
JA 2/2012 delivered 4 November 2013
[3]
At
paragraph 21
[4]
Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus
Curiae) (2013) 34 ILJ 2795 (SCA) at para 25
[5]
(2007) 28 ILJ 2405 (CC)