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[2015] ZALCJHB 71
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Classic Number Trading 80 (Pty) Ltd t/a Nashua Tshwane v Shaik-Ahmed and Others (JR838/13) [2015] ZALCJHB 71 (5 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR
COURTOF SOUTH AFRICA, JOHANNESBURG
JOHANNESBURG
Case no: JR838/13
DATE: 05 MARCH
2015
Not Reportable
In the matter
between:
CLASSIC
NUMBER TRADING 80 (PTY) LTD
T/A
NASHUA
TSHWANE
........................................................................................................
Applicant
And
EBRAHIM
SHAIK-AHMED
.....................................................................................
First
Respondents
KD
MATJI
N.O
.........................................................................................................
Second
Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
MEDIATION
.............................................................................
Third
Respondent
Heard:
19 December 2014
Delivered:
5 March 2015
Summary:
Application to review arbitration award. Dismissal, absence without
authorisation and desertion and abscondment.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
This is an application to review and set
aside the arbitration award made by the second respondent (the
Commissioner) under case
number GATW 15351-12 dated 15 April 20113,
in terms which the dismissal of the first respondent (the employee)
was found to have
been unfair. It was for that reason that the
applicant was ordered to pay him compensation.
Background facts
[2]
The employee who was at the time of his
dismissal employed as a warehouse supervisor was dismissed for
desertion and being absent
without authorisation. It is common cause
that the employee was absent from work from 26 November 2012 to 17
December 2012. He
was dismissed during his absence on 04 December
2012.
[3]
The employee was informed on 18 December
2012, that he was dismissed in absentia. The employee was unhappy
with the decision and,
accordingly, referred the unfair dismissal
dispute to the third respondent (the CCMA), alleging that his
dismissal was both substantively
and procedurally unfair.
[4]
The matter remained unresolved after
attempt at conciliation. The employee then referred the matter to
arbitration. The outcome
of the arbitration, as indicated earlier,
was that the dismissal was found to be unfair and the applicant was
ordered to compensate
the employee in the amount of R190 450.00 which
is an equivalent of 10 months remuneration.
[5]
The applicant, being unhappy with the
outcome of the arbitration award, instituted the current proceedings.
The employee has opposed
the review application.
[6]
The case of the applicant, in contending
that the dismissal of the employee was for a fair reason, is based on
the testimony of
four witnesses. The evidence of those witnesses
appears on the record and is summarised by the Commissioner in his
arbitration
award. I, therefore, do not deem it necessary to repeat
the same in any detail in this judgment. I only deal with the
testimony
of those witnesses whose evidence I regard as being
material in the determination of whether the arbitration award is
reviewable.
[7]
The first witness of the applicant was Ms
Schultz, who testified that she received information about the
absence of the employee
from work on 26 November 2012. She also
received information that morning that the employee was hospitalised
and had brain damage.
In attempting to establish the whereabouts of
the employee, the applicant telephoned and visited him at his house
to no avail.
In this respect, a day or so the applicant sent two of
its employees to the house of the employee where they were told by
his domestic
worker that he had gone to America.
[8]
In further investigating the whereabouts of
the employee, Ms Schultz contacted the medical aid to find out if
they had any record
indicating that he was admitted at any hospital.
The response from the medical aid broker indicated that there was no
record of
admission of the employee at any of the hospital in the
country.
[9]
Ms Schultz further testified that she, on 3
December 2012, issued notice to the employee to attend a disciplinary
hearing on advice
of the financial manager. Having not heard from the
employee, the disciplinary hearing proceeded in his absence the
following day,
4 December 2012.
[10]
The next time Ms Schultz heard about the
employee was on 18 December 2012, when she received a call from
warehouse informing her
that the employee has reported for work. Soon
thereafter, the employee reported at her office where she enquired
from him where
he had been. He refused to respond to her question and
apparently insisted, as he had earlier told the chairperson of the
disciplinary
hearing that he wanted to see either Mr Mr Patel or Mr
Chan.
[11]
During cross examination, Ms Schultz
testified that the applicant was informed that the employee was ill.
She also testified that
the employee had a clean disciplinary record
over the 16 years that he had with the applicant.
[12]
The second witness of the applicant was Mr
Rathoto, who largely confirmed the testimony of Ms Schultz regarding
attempts at locating
the whereabouts of the employee including going
to his house. He also testified that he had received a call on 26
November 2012,
from a person who said he was a doctor and informed
him that the employee was in the hospital having suffered brain
damage.
[13]
Mr Rathoto further testified during cross
examination that, prior to his absence from work, the employee used
to leave work earlier
to receive medical attention.
[14]
The case of the employee is that he did not
go to work from 26 November 2012 until he returned on 18 December
2012, because he was
ill. He went to India to consult a spiritual
healer because he had problems with stress, depression and nervous
breakdown. He was
aware of the rule that he needed to contact the
applicant in case that he was ill and could not report for work. He
encountered
a problem with his cell phone and was so sick just before
he left for India that he could not phone the applicant. According to
him, although he does not know what his brother said to the
applicant, he did phone and inform them that he (the employee) was
ill and that he would not be able to report for work. He conceded
having received a massage from the applicant’s director
when he
opened his phone on 12 December 2012.
[15]
Mr Goolman testified on behalf of the
employee. He testified that on the morning of 26 November 2012, he
contacted the applicant
telephonically wanting to speak to Mr Wally
but was referred to Mr Rathoto. He told him that the employee needed
to go for a brain
surgery. Although he was not told by any doctor
that the employee had to go for surgery, he assumed that to be the
case from his
condition. The employee, according to him, was sweating
and could not speak properly.
[16]
According to the employee, his plans were
to leave for India during December but his plans changed when he
suddenly became seriously
ill in November.
Grounds of review
[17]
The applicant has raised several grounds of
review in its challenge of the arbitration award. In summary, the
complaints of the
applicant in this regard is that the Commissioner:
a)
failed to into account properly the
evidence placed before him and consequently his decision is
unreasonable.
b)
ignored the fact that the employee failed
to produce proof of his illness and that he flew to India to receive
medical treatment.
c)
committed a number of gross irregularity
thus rendering the arbitration award reviewable.
d)
ignored the fact that the applicant made
every effort to determine the whereabouts of the employee.
e)
ignored the facts that the law permits that
in certain circumstance disciplinary hearing can be held in the
absence of an employee
as was the case in the present instance.
The arbitration
award
[18]
In dealing with the issue of procedural
fairness, the Commissioner found that it was common cause that the
disciplinary hearing
was conducted in the absence of the employee. He
further also found that failure to attend the hearing on the part of
the employee
was not wilful and that the chairperson of the
disciplinary hearing should have enquired about the whereabouts of
the employee
before he proceeded with the hearing.
[19]
The Commissioner further found that even if
the employee was available, the procedure would have been unfair
because he would have
received the notice on the 4 December 2012, the
same day that the disciplinary hearing was conducted. In this
respect, the employee
would not have had sufficient time to prepare
for the hearing.
[20]
As concerning substantive fairness, the
Commissioner found that:
a)
the applicant failed to discharge its duty
of showing on the balance of probabilities that the employee was
guilty of absence without
authorisation.
b)
even if the employee was guilty of
unauthorised absence, the dismissal would still have been unfair when
regard is had to the clean
disciplinary record that he had over the
period of 16 years, as the employee of the applicant.
The legal
principles
[21]
It
is generally accepted that desertion like absence without
authorisation is a form of misconduct which entitles the employer to
take disciplinary action against an employee accused of such
misconduct.
[1]
The authorities
regard desertion as repudiation or breach of contract by an
employee.
[2]
In terms of our
industrial relations desertion like any other misconduct on the part
of the employee, the employer is required
to act in a fair manner and
has to investigate the reasons and the circumstances of that
misconduct. The employer has to also weigh
whether in the
circumstances, it would be fair to impose the dismissal sanction.
Failure to do so would result in the dismissal
being regarded as
being unfair.
[22]
In
dealing with the issue of desertion, the Court in
Khulani
Fidelity Services Group v Commission for Conciliation Mediation and
Arbitration and Others
,
[3]
held that:
‘
[15]
Desertion consists of absence without authorization by the employee,
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.
[16]
In general, a short period of absence may not be sufficient to
establish evidence of the intention not to continue with the
employment contract. In other words a short period of absence without
authorization may not, depending on the circumstance of the
case,
constitute repudiation of the contract by the employee. However, and
again depending on the circumstances of a given case,
prolonged
absence may serve as evidence of desertion particularly where the
employee willfully terminates communication with the
employer during
the period of absence.’
[23]
In
South
African Broadcasting Corporation v Commission for Conciliation,
Mediation and Arbitration and Others,
[4]
the Court held that:
‘
[13]
The real problem arises from circumstances of unexplained absence.
Mere absence is no more conclusive evidence of desertion
(which is
absence plus an intention not to return), than it is evidence of
willful absence without leave (which axiomatically includes
an
intention to return, albeit at a time of the employee's choosing).
The means by which the employer established the existence
or absence
of the intention to return is the critical point of the debate. What
constitutes desertion is of course a matter of
fact. In some
instances an unexplained absence for a reasonable period, that is to
say, reasonable in relation to the employer's
operational
requirements, will establish the fact of desertion.’
[24]
The
same approach was adopted in
SACWU
v Dyasi,
[5]
where the Court held that desertion amounts to repudiation of the
contract of employment which the employer is entitled to accept
or
reject. The acceptance of repudiation amounts to dismissal if
employee once again tenders his/her service.
[25]
The
Labour Apeal Court made it clear that even in the case of desertion
or abscondment the employer still has to ensure that a fair
procedure
is followed and that there is a fair valid reason for a dismissal.
[6]
[26]
In
the
SABC
v CCMA and Others
,
[7]
(LAC decision) the LAC in dealing with the issue of procedural
fairness held that the issue of whether the employer should hold
a
disciplinary hearing before dismissing an employee who had deserted
his employ depends on the circumstances and the practicality
of doing
so. On the facts, the Court found that the employee was in breach of
his obligation to tender his services from 27 November
1997. The
employer had placed him on terms to report for work by the 4 December
1997. The Court further held that the employer
should have called on
the employee after he failed to report for work on 4 December 1997 to
show cause why he should not be dismissed.
[27]
In
Impact
(Mondi
Packaging SA (Pty) Ltd)
v
National Bargaining Council for The Woods and Paper Sector
,
[8]
the Court held that:
‘
[22]
...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…
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.’
Evaluation
[28]
In making the finding that the dismissal
was procedurally unfair, the Commissioner reasoned that the employee
was dismissed in his
absence and thus he was not given the
opportunity to be heard. He also noted that on his return to work on
18 December 2012, the
employee was not afforded an opportunity to
explain where he was. The Commissioner made this finding in the
context where the case
of the applicant is that the employee failed
to respond to Ms Schultz when she enquired from him where he had
been.
[29]
According to Mrs Schultz, when she enquired
from the employee where he had been, he simply shrugged his shoulders
and said that
he was no well. At the arbitration hearing, the
employee conceded that he was asked by Mrs Shultz where he had been.
He stated
that he felt that there was no need for him to respond and
that is why he shrugged his shoulders.
[30]
In my view, the above facts reveal that the
applicant conducted an investigation into the prolonged absence of
the employee. The
outcome of the investigation indicates very clearly
that there was a need to convene a hearing so as afford the employee
an opportunity
to be heard. Put in another way, the applicant should
have called the employee to show cause why his dismissal on the 4
December
2012, should not be confirmed. In this respect, I do not
fault the Commissioner in finding that the dismissal of the employee
was
procedurally unfair.
[31]
Turning to the issue of substantive
fairness, it is common cause that the employee was dismissed for
desertion and unauthorised
absence from work. The issue that arose in
the determination of whether the dismissal was fair or otherwise
centred on the question
of whether the employee had provided a
satisfactory justification for his absence.
[32]
In
Impact
Ltd (Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for
the Wood and Paper Sector and Others
,
[9]
the Court held that the real issue underlying substantive fairness,
in cases of this nature was whether the employee had offered
satisfactory justification for his extended unauthorised absence. The
issue of the intention to desert is a secondary issue
.
[33]
The applicant, in contending that the
dismissal was for a fair reason, emphasised the allegation that the
employee did not comply
with its sick leave policy which provides
amongst others that:
‘
If
any Employee is sick, (he/she obviously cannot know in advance) ,
he/she must, by nine o’clock (09h00), either telephone
his/her
manager or get an urgent message to his/her manager so that we know
he/she is, and how long he/she may be off work. If
we do not hear
from an employee after two (2) days, the employer will deem this as
absconding.’
[34]
In my view, the Commissioner in considering
the substantive fairness of the dismissal failed to take into account
the totality of
the facts and circumstances of this case, in
particular the provisions of the above policy. It is clear from the
above extract
of the policy that the employee was expected to report
his absence from work every other second day of his absence from
work. As
indicated earlier, he was aware of this rule. Except for
reporting his absence from 26 November 2006 through his
brother-in-law,
the employee did not provide any satisfactory
justification as to his very prolonged absence without authorisation.
Calculating
his absence on a five working day week, he was absent
from work for about 16 days.
[35]
In my view, the period of absence from work
is excessive and thus required frank and proper justification. The
employee was a supervisor
and thus the above policy would apply even
more to him as he had to set an example of good conduct and
compliance with policies
to his juniors. He received a cell phone
massage on 12 December 2012 and did nothing about it. He was totally
indifferent to the
interests of his employer.
[36]
Although the employee says that he had
planned to leave for India later in December 2012, he had to change
because of his ill-health;
he does not explain why he did not contact
the applicant in terms of the sick policy during that period. If it
was to be accepted
that on the day of his departure to India, he was
so sick that he could not contact the applicant, then the question is
why did
he not do that subsequent to his arrival there and more,
particularly, on 12 December 2012 when he saw a message from his
phone
which indicated that the applicant was looking for him.
[37]
The employee has, in seeking to justify his
absence for the period of 16 days without authorisation, submitted a
note from the Pretoria
Islamic Education Centre, (Islamic Centre) an
affidavit from Mr Ebrahim of the Quadiriya Sufi Order and a medical
note from Psycologist,
Mrs Jordan.
[38]
The note from the lslamic Centre states
that as a religious organisation, they certify that the employee
attended spiritual assistance
in India from 25 November 2012. The
note does not state why he had to leave on that date and for how long
he was to stay there
to receive the assistance.
[39]
The affidavit from Mr Ebrahim states that
he, as a spiritual leader based in South Africa and that assisted the
employee spiritually
after the passing of his mother, brother and
father. As his condition did not improve, it was recommended that he
should visit
a specialist in India. There is no indication in the
affidavit as to why he had to leave without making the necessary
arrangement
with his employer.
[40]
The note from the Psychologist indicates
that the employee was not feeling well since 23 November 2012 and as
a result did not attend
work. It does not say that he was booked off
since then. The note indicates that the Psychologist, saw the
employee on 14 December
2012 and booked him of for that day. This
does not account for all the other days that the employee was absent
from work.
[41]
In my view, having regard to the above
analysis, it is clear that it is unreasonable to expect the applicant
to keep the employee
in its employ when he has little regard to its
operational interest. This, together with failure to show remorse
when confronted
about the incident, cancels-off consideration of the
length of service which he had with the applicant.
[42]
In
light of the above analysis, I find that the decision of the
Commissioner is not one which a reasonable decision maker could
have
reached when regard is had to the evidence and the material which was
presented during the arbitration hearing.
[10]
Order
[43]
In the premises, the following order is
made:
1.
The arbitration award made under case
number GATW 15351-12 dated 15 April 20113, is reviewed and set aside.
2.
The arbitration award is substituted with
the following:
‘
(i)
The dismissal of the Applicant (First Respondent in the present
mater) was procedurally unfair.
(ii) The Respondent
should compensate the Applicant for the procedural unfairness in the
amount equivalent to 2 months’ salary
calculated at the salary
he received at time of his dismissal.
(iii) The dismissal
of the Applicant was substantively fair and thus his claim for unfair
dismissal is dismissed.’
3.
There is no order as to costs.
Molahlehi, J
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: Mr H Wissing of Wissing Henk Inc
For
the First Applicant: Advocate Z. Marx.
Instructed
by:
DP Du Plessis Inc Attorneys.
[1]
See
SACWU
v Dyasi
(2001) 7 BLLR 731 (LAC).
[2]
See
SABC
v CCMA and Others
(2001) 22
ILJ
487 (LC) at para 16 and
SACWU
v Dyasi
(
supra
)
at paras 19-20.
[3]
[2009] 7 BLLR 664 (LC).
[4]
SABC
v CCMA and Others
(
supra
)
at para 13.
[5]
SACWU
v Dyasi
(
supra
).
[6]
Ibid
at paras 20-21.
[7]
[2002]
8 BLLR 693
(LAC) at para 15.
[8]
(2013)
34
ILJ
2266 (LC) at para 22.
[9]
Ibid
at
para 21.
[10]
See
Goldfields
Mining South Africa (Pty) Ltd) (Kloof Gold Mine)
(2014) 35
ILJ
943 (LAC) and
Herholdt
v Nedbank Ltd (
Congress
of South African Trade Unions
Amicus
Curiae)
[2013] 11 BLLR 1074
(SCA).