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[2015] ZALCJHB 388
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Glencore Operations South Africa (Pty) Ltd (Mototolo) v GIWUSA obo Baloyi and Others (JR2448/14) [2015] ZALCJHB 388 (3 November 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
CASE
NO: JR 2448/14
In
the matter between:
GLENCORE
OPERATIONS SOUTH
AFRICA
(PTY) LTD
(MOTOTOLO)
Applicant
and
GIWUSA
obo PIET BALOYI
First Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second
Respondent
SIPHO
TALANE
N.O.
Third
Respondent
Heard:
03 November 2015
Order:
05 November 2015
Judgment:
10 November 2015
Summary:
Review application. Arbitration award reviewed and set aside. Matter
remitted to the CCMA for a
de novo
determination.
JUDGMENT
BALOYI
AJ.
Introduction
[1]
The Applicant, Glencore Operations South
Africa (Pty) Ltd (Mototolo), seeks an order reviewing and setting
aside the award of the
Third Respondent date 9 October 2014 issued
under CCMA case number LP6018-13 in which the third Respondent (“the
commissioner”)
found that the dismissal of Mr Piet Baloyi (“the
employee”) is unfair and ordered his re-employment with effect
from
1 April 2014. The application is unopposed.
Relevant
Evidence
[2]
The evidence before the commissioner is
that the employee was dismissed from employment in the following
circumstance:
2.1
On 11 July 2014 he did not report for work and did not inform the
Applicant of his absence and the reasons therefore within
24 hours as
required by the Applicant’s sick leave policy. The employee did
not return to work until 28 July 2014.
2.2
On 14 July 2014, the Applicant’s Ms Janet Mondi (“Ms
Mondi”) telephonically enquired from the employee’s
wife
about his absence from work. Mrs Baloyi informed Ms Mondi that the
employee was ill. Ms Mondi requested that Mrs Baloyi
telefax the
employee’s medical certificate to her. The medical
certificate was not telefaxed as requested by Ms Mondi.
2.3
On 21 July 2014 the Applicant’s Ms Busisiwe Mawela (“Ms
Mawela”) spoke with the employee on the phone and
instructed
him to report for work within 24 hours. Ms Mawela testified that the
employee told her that he was ill but agreed that
he would report for
work. Ms Mawela also asked the employee to telefax his medical
certificate. On the same day, the Applicant
sent a letter to the
employee in which it instructed him to report for work within 3 days
of the date of the letter, failing which
his employment would be
terminated. The letter also reminds the employee “that the
company policy with regard to desertion
is that after five (5) days
of absence without permission, you will be dismissed in absentia”.
The employee did not report
for work and did not submit a medical
certificate. He was accordingly deemed to have deserted and was
dismissed from employment
as a result in accordance with the
Applicant’s “desertion policy”.
2.4
The employee reported at the Applicant for work on 28 July 2014
whereupon he was informed that he had been dismissed from employment.
He lodged an appeal against his dismissal and in the appeal, he
informed the Applicant that he did not report for work on 14 July
2014 because he was arrested on 13 July 2014 and remained in police
custody until 21 July 2014. He also alleged that he was ill
upon his
release from custody and as a result did not report for work as
instructed by Ms Mawela. He also stated that he did not
report for
work within the 3 day period as instructed in the Applicant’s
letter of 21 July 2014 because he received the letter
on 23 July 2014
and on his calculation the three days had already expired and he
considered himself as dismissed in accordance
with the letter. The
employee’s appeal against dismissal was unsuccessful - the
minute of the appeal hearing records the
charge as “dismissal
in
absentia (Desertion)”.
Grounds
for Review
[3] The
applicant seeks the review and setting aside of the award on the
grounds that the commissioner:
(i)
misconstrued the issues before him by dealing with irrelevant issues,
in particular, whether the employee breached
the Applicant’s
sick leave policy, as opposed to determining the fairness of the
employee’s dismissal on the basis
that he had deserted.
(ii)
committed misconduct and/or a gross irregularity in that he failed to
consider relevant material evidence, and considered
the evidence
before him in a manner that amounts to a failure to apply his mind;
(iii)
applied the law incorrectly when considering whether dismissal was an
appropriate sanction.
[4] With
respect to the first-mentioned ground for review, the Applicant
contends that the commissioner failed to consider the question
he was
required to answer, namely, whether the employee committed the
misconduct of desertion; and if so, whether dismissal is
an
appropriate sanction.
Is
the award liable to be set aside?
[5]
In
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
[1]
,
the court succinctly restated the test for review in the following
terms
“…
A
reviewing court must ascertain whether the arbitrator considered the
principal issue before him/her, evaluated the facts presented
at the
hearing and came to a conclusion which was reasonable.”
[6]
Applying the review test as set out above, the following can be said
of the decision of the commissioner –
6.1
It is apparent
ex facie
the award that the commissioner
construed that the question he was required to determine was whether
the employee committed the
misconduct of failure to report his
absence from work due to illness within 24 hours of such absence as
required by the Applicant’s
sick leave policy.
6.2
Having determined that the employee was guilty of the misconduct of
failure to report his illness in accordance with the sick
leave
policy, the commissioner found that the sanction of dismissal was
unfair in the circumstances.
[7]
Whilst the record is not of the greatest clarity with respect to the
reasons for dismissal, which confusion is in my view created
by the
following evidence - (i) that the employee was instructed to report
to work on 22 July 2014 and to submit a medical certificate;
(ii) the
employee provided to the Appellant an explanation for his absence
from work, namely that he was ill in the period after
he received the
letter instructing him to return to work and for his failure to
submit a medical certificate; and (iii) the record
of appeal, which
states the charge as “dismissal in absentia (Desertion)”.
[8]
Notwithstanding, it is however clear that the real dispute that the
commissioner was required to decide is whether the dismissal
of the
employee on the ground of desertion was fair. The commissioner
misdirected himself as to the question he was required to
consider
and as a result did not consider whether dismissal for the reasons
stated by the Applicant was fair. This is what he was
required to do.
As a result of the commissioner’s misdirection, the
commissioner’s decision is inevitably and unavoidably
not
reasonable and stands to be set aside on this ground – see
MEC
for Education, Gauteng v Mgijima.
[2]
[9] In
the light of this conclusion I have reached, I do not consider it
necessary to deal with the other grounds for review relied
upon by
the Applicant.
[10] As
primary relief, the Applicant seeks the substitution of the award of
the commissioner with an order that the dismissal of
Baloyi is
substantively fair. In the alternative, the Applicant seeks an order
remitting the matter to the CCMA for a determination
by a
commissioner other than the Third Respondent.
[11]
In considering whether to substitute the decision of the commissioner
as prayed for by the applicant, I must consider whether
there are any
special circumstances that dictate substitute instead of a remittal.
In particular, I must consider whether: (i)
the outcome is a forgone
conclusion and that it would be a waste of time to remit the matter
to the CCMA; (ii) further delay will
cause unjustifiable prejudice to
the parties; (iii) the CCMA has exhibited such bias or incompetence
that it would be unfair to
require the applicant to submit on the
same jurisdiction; and (iv) whether this Court is in as good a
position as the CCMA to decide
the matter – see
Rustenburg
Platinum Mines Ltd v CCMA and others
[3]
.
I am unable to find that all these factors are present in this case.
In the event, it is my view that a substitution as prayed
for by the
applicant is not appropriate in the circumstances.
Order
[12] In
the result, the application succeeds. Accordingly, I make the
following order:
12.1
The award of the First Respondent is set aside.
12.2
The matter is remitted to the First Respondent for determination
afresh by a commissioner other than the Third Respondent.
___________________
S.Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Mr. D Masher
of Edward Nathan Sonnenbergs Incorporated
For the
First Respondent: No appearance
[1]
[2007] ZALC 66
;
[2014] 1
BLLR 20
(LAC) at para 16.
[2]
[2011]
3 BLLR 253 (LC).
[3]
(2007) 28
ILJ 417 (LC) at para 12.