About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 179
|
|
BP Southern Africa (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others (JR2004/12) [2015] ZALCJHB 179 (11 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: JR 2004/12
BP
SOUTHERN AFRICA (PTY)
LTD
Applicant
and
NATIONAL
BARGAINING COUNCIL FOR
THE
CHEMICAL
INDUSTRY
First Respondent
COMMISSIONER
J LE F PIENAAR
Second Respondent
THEO
NTLOTLO
Third Respondent
Delivered:
11 June 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This application came before the Court in terms of section 145 of the
Labour Relations Act
[1]
(The
LRA). The applicant (BP) seeks to review and set aside the award
issued by the second respondent (Commissioner) under case
number
WECCHEM364-11/12 dated 13 July 2012.
[2]
In the award, the Commissioner had found that the dismissal of the
second applicant (Ntlotlo) by BP was procedurally fair but
substantively unfair. The Commissioner had ordered that Ntlotlo be
reinstated with retrospective effect from the date of his dismissal,
coupled with a sanction of a final written warning valid for six
months. This sanction was also to be put into effect on the proviso
that Ntlotlo should not abuse his sick leave, and should he do so,
further disciplinary action would be taken against him, which
may
result in his dismissal. The Arbitrator had further ordered BP to pay
to Ntlotlo, as back pay, an amount equal to R49 000.00.
Background to the
application:
[3]
Ntlotlo was employed with effect from 3 December 1993. At the time of
his dismissal on 2 March 2012, he was employed in the
position of
Bunker Crew Supervisor, with seven ‘Bunker men’ reporting
to him. He was dismissed following a disciplinary
enquiry into the
following allegations;
a)
From
9 to 20 January 2012 he took unauthorised absence from work;
b)
Dishonesty
in that he had during the month of January 2012, submitted fraudulent
medical certificates to the company.
The
arbitration proceedings:
[4]
Following unsuccessful attempts at conciliating the dispute as
referred to the first respondent, the matter came before the
Commissioner for arbitration. The Commissioner recorded in the
arbitration award that during the course of the evidence, indications
surfaced that Ntlotlo was suffering from alcohol abuse, and he
(Commissioner) had
mero motu
, raised the question whether the
core of the dispute was not a matter of incapacity due to alcohol
abuse, and whether Ntlotlo should
not have undergone rehabilitation
treatment.
[5]
Evidence led on behalf of BP by Croxford, its Depot Manager and
initiator of the disciplinary process was to the effect that
in the
light of Ntlotlo’s history of bad work attendance
and
further since he had exhausted his 36 days sick leave over the last 4
cycles during 12 years, he had received counselling on
several
occasions. Although Croxford could not pinpoint the cause of the
problem, he had suspected that Ntlotlo had problems with
alcohol
abuse. According to the company’s policy, if an employee is
absent for whatever reason, he or she must notify a direct
supervisor
by no later than 11h00 on the first day of absence.
[6]
In regards to incidents leading to the dismissal in January 2012,
Ntlotlo had not informed the company about his absence on
9 January
2012 in accordance with company policy, and various attempts were
made to establish his whereabouts. At some point Ntlotlo’s
brother had called in and informed the company that Ntlotlo was
injured, and conflicting messages were also received from his wife.
In between attempts by Croxford to contact him, Ntlotlo also failed
to answer calls to his phone.
[7]
A day or two prior to Ntlotlo returning to work, Croxford had
received information that he (Ntlotlo) had made enquiries about
whether the company would accept medical certificates from
traditional healers in support of his absence. When Ntlotlo was
informed
that these were not acceptable, he had then reported for
duty and presented three copies of medical certificates issued by
three
different practitioners.
[8]
The first medical certificate was issued by a Doctor MV Bikitsha,
which stated that Ntlotlo was examined on 9 January 2012,
and was
diagnosed with cystitis, rendering him unable to report for duty
between 9 to 12 January 2012. When questioned about this
certificate
during the course of the disciplinary enquiry, Ntlotlo had according
to Croxford, stated that he went to consult with
Dr Bikitsha on 9
January 2012 as he had suffered from a headache, had felt dizzy, and
could not concentrate. Croxford had testified
that there was no
connection between Dr Bikitsha’s diagnosis (cystitis, which
relates to an infection of the bladder) and
the symptoms alleged by
Ntlotlo.
[9]
The second medical certificate was issued by a Dr. Matjekane on 12
January 2012, and Ntlotlo was diagnosed as suffering from
migraines
and depression. Sick leave was recommended from 12 to 17 January
2012. Croxford at the arbitration proceedings had testified
that the
alleged diagnosis was disconnected from Ntlotlo’s brother’s
telephone call informing the company that he was
allegedly injured
hence his absence.
[10]
The third medical certificate was issued by a Dr U Adam who had seen
Ntlotlo on 17 January 2012, stating that he suffered from
bronchitis
and being declared unfit for work until 23 January 2012. Croxford had
testified that at no stage had the applicant stated
prior to his
return that he suffered from bronchitis. Furthermore, Croxford had
testified that Ntlotlo could not be reinstated
as he was a supervisor
and had broken the trust relationship. The company’s
disciplinary code and procedure made provision
for a dismissal in
cases of unauthorised absence, fraud and falsification of documents.
[11]
When Ntlotlo returned to work on 23 January 2012, Croxford was
informed that he did not look well. He had then approached the
company’s Wellness Advisor and a Psychiatrist to have
discussions with Ntlotlo, and it was recommended that Ntlotlo should
not be allowed to work.
[12]
Tshayiso, a shift supervisor, had also testified and confirmed that
Ntlotlo had contacted him on 11 January 2012 at about 19h11,
and
informed him that he was not well and would report for duty the next
day. However the following day, Ntlotlo again failed to
report for
duty and his brother called in to say that he was injured and would
not be able to come to work. Tshayiso could not
recall any other days
Ntlotlo or anyone had called on his behalf about his absence.
[13]
Kannemeyer, who was Ntlotlo’s direct shift supervisor,
confirmed the latter’s bad attendance record and history
of
absenteeism. He had held discussions with Ntlotlo about these
problems. Kannemeyer in the light of Ntlotlo’s absence on
9
January 2012 had contacted him and the response was that he would
report for duty the following day as he had a slight problem.
The
nature of the problem was not disclosed.
[14]
Kannemeyer also confirmed having received a phone call from Ntlotlo’s
brother on 16 January 2012 who had stated that
he was not feeling
well and that he would report for duty on 18 January 2012. On the
same date, Kannemeyer had also received a
call from Ntlotlo’s
wife who had informed him that Ntlotlo was seeing a traditional
healer, but could not confirm the nature
of Ntlotlo’s ailment.
[15]
Dr Manjra, who is an Occupational Health Consultant for the company
also testified that he had assessed the copies of medical
certificates submitted by Ntlotlo, and had thereafter contacted the
practitioners that had issued them. Dr Matjekane’s rooms
had no
evidence of Ntlotlo’s attendance at all, whilst Dr Bikitsha
became abusive when contacted. Dr Adam on the other hand
indicated
that Ntlotlo had problems with alcohol abuse. Dr Manjra had concluded
that Ntlotlo had an alcohol problem and that HR
should intervene.
Ntlotlo was then referred to a Psychiatrist who after consultations
on 7 February 2012, concluded that he was
not mentally ill and was
fit to resume work.
[16]
Matshoge is employed as a Wellness Advisor and had confirmed having
held discussions with Ntlotlo as there were concerns about
his
alcohol abuse. Ntlotlo had denied being an alcoholic and stated that
he was a social drinker, hence he was not sent for rehabilitation.
Matshoge recommended that Ntlotlo be removed from duty and that he
should be subjected to psychiatric evaluation. Ntlotlo was seen
by a
Dr George who had concluded that even though he had alcohol abuse
problems, he was fit for duty.
[17]
Matshoge further testified Ntlotlo had not volunteered to get help
and no reports were received from his supervisors that alcohol
had an
impact on him. Thus only in circumstances where an employee
volunteered to get assistance could the company send him for
rehabilitation. Matshoge further testified in regards to the three
medical certificates that Ntlotlo had submitted. When questioned,
Ntlotlo could not recall how he got those copies. Matshoge had
further confirmed having given consent documents to Ntlotlo to sign
in order for him to be referred for counselling for alcohol abuse.
[18]
Ntlotlo, who was then […..] years old, confirmed having had
discussions with Matshoge who had informed him that he should
be sent
for rehabilitation. Before anything could be confirmed with Matshoge,
he was issued with a notice to attend a disciplinary
enquiry and
subsequently dismissed. In response to questions from the
Commissioner, Ntlotlo had testified that he was a heavy drinker.
He
had further confirmed that he did not sign the consent documents to
undergo rehabilitation even though he wanted to do so following
his
discussions with Matshoge
The
award:
[19]
The Commissioner in the light of the above evidence concluded that;
19.1 It
was clear that the three medical certificates submitted by Ntlotlo
did not reflect his true medical condition
and the real reason for
his absence between 9 and 20 January 2012, and accordingly his
absence was unauthorised.
19.2
Ntlotlo presented false medical certificates to BP well knowing that
they were false and therefore did so
with fraudulent intent, causing
potential prejudice to BP.
19.3
The root of Ntlotlo’s problem was alcohol abuse, and the issue
had to be dealt with in consideration
of Item 10 of Schedule 8 to the
Labour Relations Act, which dealt with matters surrounding
Incapacity: Ill health or injury.
19.4 At
the time of his absence from work, Ntlotlo was incapacitated to do
his work due to alcohol abuse, which
problem BP was fully aware of.
19.5 At
the time of the disciplinary hearing Ntlotlo was willing to undergo
rehabilitation, and since BP had a
fully functional Wellness
Department and HR section, Ntlotlo should have been sent to it. BP
had instead taken a convenient route
and instituted disciplinary
proceedings knowing that it would lead to dismissal.
19.6 In
the light of the above, the sanction of dismissal was unfair as it
gave BP an opportunity to get rid of
Ntlotlo instead of following the
more cumbersome route of rehabilitation.
19.7 A
continued employment relationship was not intolerable despite
Croxford’s assertions, more particularly
in the light of
Ntlotlo’s years of service, his clean disciplinary record, and
his conduct, which should be viewed in the
light of his addiction.
The
grounds of review:
[20]
BP raised six grounds of review. The first related to the finding in
respect of the allegations of dishonesty in that Ntotlo
had submitted
copies of fraudulent medical certificates. The second, third and
fourth grounds related to the Commissioner’s
finding that BP
should have treated Ntlotlo’s case as one of medical incapacity
as a result of his alcohol abuse problem.
The fifth ground related to
the Commissioner’s finding in regards to the breakdown of the
employment relationship. The sixth
ground related to the relief
awarded by the Commissioner in the light of the findings made.
[21]
The submissions made on behalf of Ntlotlo were that the
Commissioner’s award was based on a correct understanding of
our dismissal law and the evidence before him. It was contended that
it did not contain any reviewable irregularity and there was
no basis
on which it could be reviewed and set aside.
Th
e
legal framework:
[22]
In considering whether an award is reviewable,
the
reviewing Court is required to enquire whether the decision reached
by the arbitrator is one that a reasonable decision-maker
could not
reach on the material placed before him or her. Where the Court finds
that the decision of the arbitrator does not fall
within the band of
reasonableness, it accordingly should intervene
[2]
.
[23]
Where an irregularity is alleged, a further question to be posed in
line with the
Sidumo
test
is whether the Commissioner misconceived the nature of the enquiry or
arrived at an unreasonable result.
[3]
Flowing from the decisions in
Herholdt
v Nedbank Ltd
and in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
[4]
,
the Labour Appeal Court in
Head
of the Department of Education v Mofokeng and Others
[5]
(per Murphy AJA) further held that whether or not a decision is
unreasonable in its result is an exercise that is necessarily
dependent on variable considerations and circumstantial factors. Thus
flaws in the reasoning of the Commissioner, evidence of a
failure to
apply the mind, reliance by the Commissioner on irrelevant
considerations or the ignoring of material evidence must
be assessed
with the purpose of establishing whether the arbitrator has
undertaken a wrong enquiry, undertaken the enquiry in the
wrong
manner or arrived at an unreasonable result. Ultimately, the enquiry
is whether these lapses and irregularities are of such
a nature as to
result in a misconceived enquiry or a decision to which no reasonable
decision-maker could come on the material
presented.
[24]
The Labour Appeal Court in
Goldfields
[6]
also cautioned against the adoption of a piece-meal approach in
assessing whether the result of an award is unreasonable, and further
held that in assessing the reasonableness of the outcome, it should
be asked whether;
a)
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 a full opportunity to have their say in respect of the
dispute?
b)
Did
the arbitrator identify the dispute he or she was required to
arbitrate? (This may in certain cases only become clear after
both
parties have led their evidence)
c)
Did
the arbitrator understand the nature of the dispute he or she was
required to arbitrate?
d)
(iv)
Did he or she deal with the substantial merits of the dispute?
e)
(v)
Is the arbitrator’s decision one that another decision-maker
could reasonably have arrived at based on the evidence?
[7]
Evaluation:
[25]
Having had regard to the record of the arbitration proceedings, the
evidence led, and analysed, the conclusions arrived at
by the
Commissioner, as well as the submissions made in regards to the
grounds of review, in this judgment, it is concluded
that the
application to review and set aside the award should succeed on the
basis that decision reached by the Commissioner is
clearly one that a
reasonable decision-maker could not reach on the material placed
before him. These conclusions are fortified
by the following;
25.1
Section 188 of the LRA provides that;
(1)
A
dismissal
that is not automatically unfair, is unfair if the
employer fails to prove-
(a) that the reason
for
dismissal
is
a fair reason-
(i)
related to the
employee’s
conduct or capacity; or
(ii)
based on the employer’s
operational requirements
; and
(b)
that the
dismissa
l was effected in accordance with a fair
procedure
(2)
Any person considering whether or not the reason for
dismissal
is a fair reason or whether or not the
dismissal
was effected
in accordance with a fair procedure must take into account any
relevant
code of good practice
issued in terms of this Act.
25.2
Emanating from the above provisions, an arbitrator determining the
fairness of a dismissal is obliged to
assess the
reasons
proffered
by the employer that led to that dismissal. Thus if the reason
pertains to misconduct for instance, the arbitrator is
required to
assess and determine whether that reason relating to misconduct
justified a dismissal on a proper consideration of
the guidelines set
out in Item 7 of Schedule 8: Code of Good Practice as contained in
the LRA.
25.3 In
this case Ntlotlo was dismissed on account of two allegations of
misconduct, viz, unauthorised absence
from work between 9 and 20
January 2012, and dishonesty in relation to the submission of
fraudulent copies of medical certificates.
These two acts of
misconduct were the
real reasons
for the dismissal as
proffered by BP, and the Commissioner in accordance with the
provisions of section 188 of the LRA as indicated
above was obliged
to consider whether based on those reasons, the dismissal was fair.
25.4
It is accepted that in some instances, it may be alleged by the
employer that the reason for a dismissal
was as a result of factor Y.
The evidence however as led by the dismissed employee and as accepted
as being the most probable by
a Commissioner could eventually show
that the real reason was factor X. In these circumstances, Zondo JP
as (As he then was) in
F
idelity
Cash Management Services v Commission for Conciliation, Mediation and
Arbitration and others
[8]
, held that;
“
It is an elementary principle
of not only our labour law in this country, but also of labour law in
many other countries that the
fairness or otherwise of the dismissal
of an employee must be determined on the basis of the reasons for
dismissal which the employer
gave at the time of the dismissal. The
exception to this general rule is where, at the time of the
dismissal, the employer gave
a particular reason as the reason for
the dismissal in order to hide the true reason such as union
membership. In such a case,
the court or tribunal dealing with the
matter can decide the fairness or validity of the dismissal not on
the basis of the reason
that the employer gave for the dismissal but
on the basis of the true reason for the dismissal”
25.5 In
this case, and even if it can be said that the Commissioner was
obliged to deal with the fairness of the
dismissal on the basis of
any other reason, there is no hesitation in concluding that the
Commissioner went on a frolic of his
own, and completely misconstrued
the nature of the enquiry before him based on the reason for the
dismissal and evidence led in
that regard. On his own, he had raised
the issue whether the core of the dispute was not a matter of
incapacity due to alcohol
abuse and whether Ntlotlo should not
undergo rehabilitation treatment for alcohol abuse. This was indeed
irregular, in that;
25.5.1 It was
never BP’s case nor that of Ntlotlo that the dismissal was
related to alcohol abuse and incapacity,
and that BP used the two
charges that led to a dismissal as a smokescreen. Any such
conclusions could only have been reached if
pleaded by Ntlotlo, and
also if ultimately proven on the facts.
25.5.2 There
was no evidence led by Ntlotlo that his alcohol problems had led to
his alleged incapacity, or the reason
for his absence, until probed
and prompted by the Commissioner.
25.5.3 Only
after being prompted by the Commissioner did Ntlotlo indicate that he
was a heavy drinker, which revelation
was not only opportunistic, but
also evidence BP had not been aware of, or which it was afforded an
opportunity to rebut.
25.5.4 There
was evidence that Ntlotlo had been counselled before in regard to his
absenteeism and bad attendance record;
25.5.5 The
copies of fraudulent medical certificates submitted by Ntlotlo, even
if they were to be accepted, had not
indicated that he had alcohol
problems or was incapacitated, and the Commissioner had accepted that
they were fraudulent.
25.5.6 Ntlotlo was not
decisive as to whether he sought assistance or not in relation to his
alleged alcohol abuse problems. On
his version, he had not signed the
consent forms to volunteer for rehabilitation, and even if it had
dawned on him that he should
have volunteered for rehabilitation, BP
had already decided to take steps against him on the basis of his
dishonest conduct.
25.5.7
The Commissioner ultimately during the course of the proceedings had
realised that the details surrounding alcohol
abuse and alleged
incapacity were not placed before him
[9]
,
and he had nevertheless continued to make his ultimate findings on
those issues.
25.5.8
Despite having concluded that copies of the medical certificates were
fraudulent, and thus Ntlotlo was on unauthorised
absence, the
Commissioner nevertheless continued to conclude, and without any
basis, that his absence was due to being incapacitated
to do his work
due to alcohol abuse.
25.6
The Commissioner’s conclusions therefore that Ntlotlo’s
absence was due to his alcohol addiction
which had led to his
incapacity was not based on facts as illustrated above. To the extent
that the Commissioner adopted this approach,
he not only subverted
BP’s case, but he had also dictated to the parties as to what
the nature of their dispute and invariably,
of the enquiry, should
be.
25.7
Once a dismissal had taken place and the dispute was before a
Commissioner, it is not within his powers during
the arbitration
process, without either solicitation or evidence, to give his or her
opinion on what the reasons for the dismissals
are, should have been
or what the employee should have been charged with. This was a matter
that should have been raised by Ntlotlo
in his defence. This
principle was emphasised in
Sidumo
[10]
where the Constitution Court held that i
n
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 the
relevant factors and
circumstances.
25.8 It
is accepted that Commissioners ultimately act as educators within the
context of their functions, and
that their powers within the ambit of
sections 138 and 142 of the LRA are clearly wide enough to allow them
latitude to determine
a matter in any manner that they deem
appropriate. These provisions are however not a license for
Commissioners within the context
of determination of unfair dismissal
disputes, to assist parties in putting forward a case they had never
relied upon in the first
place, or to dictate to parties what their
dispute ought to be.
25.9 As
to what the employer ought to have done in a particular set of
circumstances is a matter that the arbitrator
could probably address
within the context of evaluation of evidence in the award, with the
purpose of educating the employer in
order not to repeat incidents of
unfairness. But this would only be where this is found to be the
case. It is however grossly irregular
for a Commissioner to on his
own, and without evidence, to suggest to parties within the
arbitration process, how a particular
issue should have been dealt
with or argued. There is a fine line between a Commissioner’s
attempt to establish the real
dispute between the parties, and
assisting a party to put up a case.
25.10
In support of the Commissioner’s approach, Mr Van der Riet on
behalf of Ntlotlo placed reliance on the principles
set out in
CUSA
v Tao Ying Metal Industries and Others
[11]
,
for the proposition that the Commissioner was required to look at the
nature of the real dispute between the parties in coming
to his
decision, and thus his reasoning could not be faulted. It was further
submitted that even if Ntlotlo had not admitted that
he was an
alcoholic, or never explicitly articulated at the disciplinary
enquiry that he should have been sent for treatment, this
did not
prevent a finding that it was unfair to discipline and dismiss him in
the circumstances. To this end, it was further submitted
that the
Commissioner could not be limited in determining what issues were
relevant for a proper determination of the dispute.
25.11 It is my view
that the principles set out in
CUSA
in regards to the mandate
of a Commissioner when determining unfair dismissal disputes, needs
to be understood in context. There
is a particular approach in
dealing with different disputes including those pertaining to unfair
dismissals as opposed to other
disputes such as unfair labour
practices, matters of mutual interests or those determined under the
provisions of section 24 of
the LRA, which may not necessarily be
clear unless the arbitrator adopts the approach suggested in
CUSA
.
In circumstances where an employer contends that an employee was
dismissed for a particular reason relating to misconduct, the
provisions of section 188, and 192 (2) of the LRA, read together with
the guidelines in Item 7 of Schedule 8 are clear as to what
the
arbitrator should look for. The Constitutional Court in
CUSA
other than outlining the obligations of the Commissioner when
determining disputes, further added that;
“
It is by now
axiomatic that a Commissioner is required to apply his or her mind to
the issues properly before him or her. Failure
to do so may result in
the ensuing award being reviewed and set aside. Recently, in
Sidumo
,
the matter was put thus:
“
It
is plain from these constitutional and statutory provisions that CCMA
arbitration proceedings should be conducted in a fair manner.
The
parties to a CCMA arbitration must be afforded a fair trial. Parties
to the CCMA arbitrations have a right to have their cases
fully and
fairly determined. Fairness in the conduct of the proceedings
requires a Commissioner to apply his or her mind to the
issues that
are material to the determination of the dispute. One of the duties
of a Commissioner in conducting an arbitration
is to determine the
material facts and then to apply the provisions of the LRA to those
facts in answering the question whether
the dismissal was for a fair
reason. In my judgment, where a Commissioner fails to apply his or
her mind to a matter which is material
to the determination of the
fairness of the sanction, it can hardly be said that there was a fair
trial of issues””
[12]
25.12 It is further
apparent that in adopting the particular approach in this case, and
in treating the case before him as
relating to incapacity when this
was not the reason that led to the dismissal, the Commissioner
miscategorised the charges against Ntlotlo
and misdirected the
nature of the enquiry as evident from his analysis where he stated
that;
“
It is
also clear that the root of the problem is the Applicant’s
alcohol abuse, and it has to be decided how this aspect should
be
dealt with
[13]
25.13 Having stated
the above, the Commissioner then proceeded to determine the matter as
a dismissal for incapacity with
reference to Item 10 of Schedule 8 of
the LRA, when in essence, this was not the nature of the enquiry
before him. The issue was
whether BP had discharged the onus placed
on it as contemplated in section 188 and 192 (2) of the LRA, to prove
that the dismissal
based on the two acts of misconduct as specified
was fair. These were the issues the Commissioner was required to
apply his mind
to as they were properly before him.
25.14 The Commissioner in
his analysis started well and found that the three copies of medical
certificates submitted by Ntlotlo
were fraudulent, and thus his
absence between 9 and 20 January 2012 was unauthorised. Having
started well, and rather than considering
whether the sanction of
dismissal was appropriate in the circumstances, he then inexplicably
took the approach that the problem
was alcohol abuse.
25.15 It is not being
suggested that alcohol abuse may not have been a contributory factor
to all that went wrong for Ntlotlo, as
there was evidence that indeed
this may have been the case. Even if the Commissioner was inclined to
have concluded that alcohol
was indeed an issue, there was no basis
for him to reach the conclusion that the matter should have been
treated as an incapacity
dismissal on the grounds already stated.
25.16
A finding of unfairness cannot be based on inferences and
suppositions. It must be based on facts as assessed and on
a balance
of probabilities. It is further appreciated that at bargaining
councils and the CCMA there is no provision for pleadings,
and the
Commissioner is clearly bound to consider what the real dispute
before him was all about. Thus where the Commissioner had
formed an
opinion that the dismissal could have been as a result of Ntlotlo’s
alcohol abuse problem, at the very least, it
was expected of him to
have
enquired whether Ntlotlo in the light of his belated revelations that
he was a heavy drinker, now sought to rely on that reason
as the
reason for his dismissal, and to accordingly advise the parties to
present evidence in that regard. The Commissioner nevertheless
failed
to afford the parties an opportunity in this regard, and thus failing
to afford BP an opportunity of a fair trial. The Commissioner
came to
a conclusion based on his own
assumptions
and inferences, which were not supported by the facts before him.
25.17 To the extent
that the Commissioner had concluded that the copies of medical
certificates submitted were fraudulent,
and further to the extent
that the absence between 9 and 20 January 2012 was unauthorised, this
should have been the end of the
matter, and the only outstanding
issue was the determination of the fairness of the sanction of
dismissal. The submissions made
on behalf of Ntlotlo that it could
not be contended that the Commissioner had found Ntlotlo guilty on
the charge of dishonesty
are without substance when regard is had to
the Commissioner’s emphatic conclusion that;
“
It is
clear that the three medical certificated submitted by the Applicant
did not reflect the Applicant’s true medical condition
and the
real reason for his absence from 9-20 January 2012. His absence was
unauthorised. It may be that the Applicant’s
family members
played a role in the false information given to the Respondent about
the Applicant’s absence. But the Applicant
presented false
certificates to the respondent well knowing that they were false and
therefore did so with fraudulent intent, causing
at least potential
prejudice to the Respondent. The Applicant thus acted fraudulently in
submitting the three medial certificates.”
(Sic)
25.18
Notwithstanding the above decisive conclusions, what made the
Commissioner’s reasoning even more startling and
contradictory
were the terms of his order of reinstatement. It was never BP’s
case nor that of Ntlotlo that he was dismissed
for sick leave abuse.
In ordering reinstatement with a final written warning on the proviso
that Ntlotlo would not abuse the sick
leave within the six months,
the Commissioner as also correctly pointed out, misconstrued the
nature of the enquiry, and arrived
at a decision, which did not fall
within the range of reasonableness in the light of the material
before him.
[26]
A further ground of review related to whether the relief granted was
reasonable in the light of questions of a trust relationship
and
evidence led in that regard. Submissions made on behalf of Ntlotlo
were to the effect that the Commissioner’s findings
that BP had
not established that the circumstances surrounding the dismissal were
such that continued employment relationship would
be intolerable
within the meaning of section 193 (2) (b) of the LRA could not be
faulted. In this regard, the Commissioner had
taken into account
Ntlotlo’s 19 years of service, a clean disciplinary record, his
bad attendance record and BP’s perception
that alcohol abuse
may have been a factor.
[27]
It is accepted that in considering the fairness of a sanction and any
relief, the Commissioner must also take into account
the provisions
of section 193 of the LRA, the guidelines set out in Item 7 of
Schedule 8, and the factors pointed out in
Sidumo
[14]
.
In this case, and as already pointed out, the Commissioner in coming
to his conclusions was persuaded by his opinion as to what
BP should
have done when there was no evidence before him to support those
conclusions. Having concluded that Ntlotlo had indeed
acted
dishonestly and having found that his absence was unauthorised, the
Commissioner’s sense of fairness would have further
dictated
that the sanction of dismissal was fair having taken account of the
following factors;
27.1
There was a decisive conclusion that Ntlotlo was dishonest in
submitting copies
of fraudulent medical certificates, and therefore
his absence was unauthorised. Evidence led was to the effect that BP
took such
transgressions seriously, and its disciplinary code called
for a dismissal in such cases.
27.2
Ntlotlo was well aware of the policy regarding absenteeism and had
not adhered
to same. He had held a supervisory position, with several
subordinates looking up to him, and his bad attendance record clearly
had an impact on BP’s operations.
24.3
Ntlotlo’s absence was unauthorised, and he had dishonestly
sought to
mislead BP about the reasons for his absence, and in the
course of doing so, unashamedly used his family members to lie on his
behalf. As correctly pointed out on behalf of BP, there is no basis
for any conclusion to be reached that Ntlotlo may have been
delusional in the light of the finding that he had committed the
fraud with intent as found by the Commissioner.
24.4
The dishonesty in question was serious enough to impact on a trust
relationship.
27.5
Ntlotlo’s long service was not an automatic bar to a sanction
of dismissal
in circumstances where he was counselled in regards to
his bad attendance record, and where it was apparent that progressive
discipline
would not have yielded the desired results, moreso in the
light of his dishonest conduct.
27.6
Until prompted by the Commissioner, Ntlotlo never at any stage
acknowledged
that he had any alcohol problems, had not showed any
sense of contrition or willingness to own up to his conduct, and his
concessions
in regards to his alcohol problem were merely a façade.
Conclusions:
[28]
In terms of his duty to deal with the matter with the minimum of
legal formalities, the Commissioner deprived BP in particular,
a full
opportunity to have its say in respect of the dispute and the issues
that had led to the dismissal. The Commissioner by
going on a frolic
of his own therefore failed to identify the dispute he was required
to arbitrate and thus failed to understand
the nature of the dispute
he was required to determine. Consequently, and in the light of these
irregularities and flaws, he had
arrived at an outcome that a
reasonable Commissioner would not have arrived at in the light of the
material before him. Consequently,
the award should be set aside.
[29]
I have further had regard to the record and the evidence that was
before the Commissioner. In the light of the conclusions
reached in
this judgment, and in particular reference to its paragraph [27],I am
of the firm view that no purpose will be served
by remitting the
dispute back to the first respondent. I have further had regard to
the issue of costs, and it is my view that
considerations of law and
fairness militate against such an order. Accordingly, the following
order is made;
Order:
i.
The
award issued by the Second Respondent (Commissioner) under case
number WECCHEM364-11/12 dated 13 July 2012 is reviewed and set
aside.
ii.
The
above award is substituted with an order that;
“
The
dismissal of Theo Ntlotlo by BP Southern Africa (Pty) Ltd was
procedurally and substantively fair.”
iii.
There
is no order as to costs.
______________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv. FA Boda.
Instructed
by:
North Rose South Africa
For the Third
Respondent:
H Van
der Riet SC
Instructed
by:
Cheadle Thompson & Haysom INC
[1]
66 of 1995 as
amended
[2]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) at para 110.
[3]
Herholdt v
Nedbank Ltd
(2013) 34 ILJ 2795 (SCA) at para 25.
[4]
[2014] 1 BLLR 20
(LAC).
[5]
[2015] 1 BLLR 50
(LAC) at paragraphs [30] to [34]
[6]
At para 14
[7]
At para [20]
[8]
[2008] 3 BLLR 197
(LAC) at para
[32].
[9]
See transcribed record at pages 657
to 658
[10]
at para [79]
[11]
[2009] 1 BLLR 1
(CC) paras 62 to 63, where Constitutional Court held that;
Consistent
with the objectives of the LRA, Commissioners are required to “deal
with the substantial merits of the dispute
with the minimum of legal
formalities.”
This
requires Commissioners to deal with the substance of a dispute
between the parties. They must cut through all the claims
and
counter-claims and reach for the real dispute between the parties.
In order to perform this task effectively, Commissioners
must be
allowed a significant measure of latitude in the performance of
their functions. Thus the LRA permits Commissioners to
“conduct
the arbitration in a manner that the Commissioner considers
appropriate”. But in doing so, Commissioners
must be guided by
at least three considerations. The first is that they must resolve
the real dispute between the parties. Second,
they must do so
expeditiously. And, in resolving the labour dispute, they must act
fairly to all the parties as the LRA enjoins
them to do.
A
Commissioner must, as the LRA requires, “deal with the
substantial merits of the dispute”. This can only be done
by
ascertaining the real dispute between the parties. In deciding what
the real dispute between the parties is, a Commissioner
is not
necessarily bound by what the legal representatives say the dispute
is. The labels that parties attach to a dispute cannot
change its
underlying nature. A Commissioner is required to take all the facts
into consideration including the description of
the nature of the
dispute, the outcome requested by the union and the evidence
presented during the arbitration. What must be
borne in mind is that
there is no provision for pleadings in the arbitration process which
helps to define disputes in civil
litigation. Indeed, the material
that a Commissioner will have prior to a hearing will consist of
standard forms which record
the nature of the dispute and the
desired outcome. The informal nature of the arbitration process
permits a Commissioner to determine
what the real dispute between
the parties is on a consideration of all the facts. The dispute
between the parties may only emerge
once all the evidence is in.”
[12]
At para [76].
[13]
At paragraph [58] of the award.
[14]
At
paras [72] to [78] These are:
The
general vulnerability of employees to unfair decision making; The
importance of security of employment; The importance of
the rule
that was breached; The reasons for establishing the rule including
its reasonableness; The harm caused by the employee’s
conduct;
The impact that it had on the trust relationship; The effect of
setting a precedent; The reason why the employer imposed
the
sanction of dismissal; The basis of the employee’s challenge
to the dismissal; Whether additional training and instruction
may
result in the employee not repeating the misconduct; The effect of
dismissal on the employee; The employee’s long service
record;
The generally applicable industrial norms of which Commissioners
will have knowledge through the institutional knowledge
of the CCMA,
(para [183]).