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[2014] ZALCPE 11
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Tom v Commission for Conciliation, Mediation and Arbitration and Others (P15/13) [2014] ZALCPE 11 (6 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
NOT
REPORTABLE
CASE
NO: P15/13
In
the matter between:
SIMPHIWO
TOM Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION First
Respondent
COMMISSIONER THEODORUS
POTGIETER N.O Second
Respondent
NELSON MANDELA
METROPOLITAN UNIVERSITY Third
Respondent
Heard: 10
October 2013
Delivered:
6 June 2014
Summary:
The commissioner’s omission to assist an unrepresented litigant
deal with a material issue
which impacts on the reasonableness of his
or her award may render the award reviewable.
Review in terms of
section 145 of the LRA- dismissal for misconduct.
JUDGMENT
LALLIE,
J
Introduction
[1]
The applicant launched this application in terms of section 145 of
the Labour Relations Act 66 of 1995 (the LRA) for an order
reviewing
and setting aside an arbitration award of the second respondent (the
commissioner). It is opposed by the third
respondent.
Factual
background
[2]
The third respondent employed the applicant as an exam process
administrator. Owing to the applicant’s absence from work
between 9 and 19 July 2012, he was charged with and dismissed for
unauthorised and/or uncommunicated absence from work for a period
of
more than one week (AWOL). Aggrieved by his dismissal, the applicant
referred an unfair dismissal dispute to the first respondent
where
the commissioner issued an arbitration award in which he found the
applicant’s dismissal both substantively and procedurally
fair.
It is that award which forms the subject matter of this application.
The
award
[3]
Giving reasons for his decision, the commissioner found that the
applicant based the attack on the substantive fairness of his
dismissal on phone calls that he made stating that he would be absent
from work. He found that proving the above effort cannot
be
considered as an application for leave as the policies are clear.
They require an application to be made in terms of the rules.
The
applicant was aware of the rules as he had applied for leave on
previous occasions. The commissioner found that the third respondent
had proved on a balance of probabilities that the applicant was
absent from work without authorisation form 9 to 19 July 2012.
He
further found that there was uncontested evidence that the applicant
had a track record of absenteeism. The commissioner accepted
the
third respondent’s uncontested evidence that the applicant
could not be trusted. He found that the misconduct went to
the root
of the employment relationship.
Grounds
for review
[4]
The applicant sought to rely on a myriad of grounds, some of which
are summarised below. He submitted that the commissioner
committed a
gross irregularity by failing to consider relevant and material
evidence in his favour. He failed to attach weight
to his evidence in
respect of the interpretation of the absence policy which favoured
him and ignored the third respondent’s
failure to apply
progressive discipline. The commissioner based his decision partly on
the applicant’s history of unauthorised
absence after
expressing his lack of interest in absence which had occurred in the
past. The commissioner’s approach denied
him of the right to
cross-examine witness on his history of absence from work. He ignored
that it was impossible for the applicant
to apply for leave on line
as he was not at work. He disregarded his evidence that in the past,
he had communicated his intended
absence over the phone and via sms
with impunity. When he followed the same procedure in July 2012, no
one told him that his absence
was authorised.
[5]
The applicant submitted that the commissioner committed a gross
irregularity by ignoring evidence which proved that probabilities
favoured his version. The commissioner incorrectly and unreasonably
stated that Ms Van Heerden (Van Heerden) denied that he phoned
on 19
July 2012 when she had testified that she could not remember the
phone call being made. Had the commissioner applied his
mind to the
evidence, he could have reached a different conclusion on his guilt.
The applicant sought to rely on the commissioner’s
failure to
lend a helping hand to him in his capacity as an unrepresented
litigant.
[6]
The third respondent argued that the record is replete with instance
in which the commissioner assisted the applicant. The applicant
committed the misconduct which led to his dismissal and the applicant
did not raise the inappropriateness of the sanction of dismissal
at
the arbitration. The commissioner reached a reasonable decision based
on the evidence before him and not on the issues which
the applicant
sought to raise for the first time on review, so went the argument.
[7]
In
Gold Fields Mining SA (Pty)
Ltd
(Kloof Gold Mine)
v CCMA and Others
,
[1]
the application of the test for review is stated as follows:
‘
[18]
In a review conducted under section 145 (2) (a)(c)(ii) of the LRA,
the reviewing court is not required
to take into account every factor
individually, consider how the arbitrator treated and dealt with each
of those factors and then
determine whether a failure by the
arbitrator to deal with one or some of the factors amounts to
process-related irregularity sufficient
to set aside the award. This
piecemeal approach of dealing with the arbitrator’s award is
improper as the reviewing court
must necessarily consider the
totality of the evidence and then decide whether the decision made by
the arbitrator is one that
a reasonable decision-maker could make.’
[8]
An assessment of the evidence before the commissioner proves that the
commissioner considered the principal issue before him.
In evaluating
the evidence, he found that the applicant had a track record of
unauthorised absence. When the arbitrator realised
the applicant’s
history of unauthorised absence, there was a duty on him to afford
both parties an opportunity to lead evidence
on the steps taken by
the third respondent in the past to address the misconduct because it
is an issue which had an impact on
the appropriateness of the
dismissal. The applicant was unrepresented, he could not have known
that the third respondent’s
failure to apply progressive
discipline could influence the commissioner’s decision. The
third respondent had condoned the
applicant’s unauthorised
absence in the past. It, therefore, had a duty to warn the applicant
that it would issue the sanction
of dismissal in the event of the
recurrence of the misconduct. By not dealing with the issue of the
third respondent’s reaction
to the applicant’s
unauthorised absence in the past, the commissioner omitted to deal
with an essential part of the substantial
merits of the case before
him. The omission had an impact on his decision. A reasonable
decision maker could not have reached the
decision the commissioner
reached after considering the manner in which the third respondent
dealt with the applicant’s past
unauthorised absence.
[9]
In the premises, the following order is made:
9.1
The arbitration award issued by the second respondent under case
number ECPE4479-12 and
dated 10 December 2012 is reviewed and set
aside.
9.2
The matter is remitted to the first respondent to be arbitrated
de
novo
by a commissioner other than the
second respondent.
____________
Lallie J
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant:
Mrs Van Staden of the Justice Centre
For the Third Respondent:
Advocate Patington
Instructed
by:
Chris Baker and Associates
[1]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).