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[2015] ZALCJHB 435
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Ntambo v Tokiso Dispute Resolution and Others (JR510/14) [2015] ZALCJHB 435 (17 December 2015)
IN THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case Number: JR510/14
In the matter between:
MZWANDILE
NTAMBO
Applicant
and
TOKISO
DISPUTE RESOLUTION
First Respondent
TSHEPHO MASHIGO
N.O.
Second Respondent
TRANSNET FREIGHT
RAIL
Third Respondent
Date heard: 5
August 2015
Delivered:
17 December 2015
JUDGMENT
RABKIN-NAICKER J
[1]
This is an opposed application to review an arbitration award under
case number TOKISO 2742. The second
respondent (the arbitrator) found
that the dismissal of the applicant was fair.
[2]
The applicant was employed in the capacity of Train Driver Specialist
based at Sishen Depot. His employment
was terminated as of 30 August
2013, purportedly in terms of clause 5.9 of the ‘Transnet
Termination of Employment Policy’.
This reads in relevant part
as follows:
“
5.9
Desertion or abscondment by employee
5.9.1 On desertion or
abscondment by the employee, the employee will be deemed to have
resigned without notice.
5.9.2 Transnet will assume an
intention of not returning to the workplace if the employee fails to
render services, fails to provide
an explanation for his/her absence
and fails to contact Transnet within seven (7) days’ of having
abandoned his or her work
and Transnet’s reasonable efforts to
contact the employee are unsuccessful.
5.9.3 Unless good cause is
subsequently demonstrated, by the employee for the apparent desertion
or abscondment, Transnet will accept
the above desertion or
abscondment as a repudiation of the contract by thee employee and the
employment contract will terminate
on the basis of the employee’s
repudiation, Transnet’s acceptance of the repudiation by the
employee will be backdated
to the date of the employee’s last
day of service with Transnet.”
[3] At the
arbitration proceedings, Ms J Mani (Mani), the company’s chief
shedman testified that her duties included monitoring
train crew
personnel and compiling the roster for the crew. Applicant called her
on Thursday 22 August 2013 to inquire about his
next shift. She
told him that his next shift was on Friday 23 August from 6 a.m.
until 14:48. He asked her whether this was
the 848 shift and she
confirmed it was. He then requested her to get his supervisor to call
him as he was not going to work that
shift. His supervisor, the
section manager Mr Matido (Matido), did call him. In his evidence
Matido explained that when he spoke
to applicant and confirmed it was
the 848 shift on August 23 and not a 12 hour shift which applicant
normally worked. The applicant
said he would ‘never come to
work for this…” The 848 shift is one in which employees
do not benefit from getting
any overtime.
[4] Under
cross-examination, Matido was taken through documents comprising the
roster. He confirmed that on the 18 and 19 August
the applicant was
on 2 days rest time. He worked on 20, 21 and 22 August. On 23 August
he didn’t come to work. He was not
on the roster for the 24
th
and 25
th
August because that was his weekend off. It was
put to him that applicant could not have been off for 7 consecutive
days given
that the 25
th
and 26
th
of August
were his rest days. The transcript records two explanations proffered
by Mr Matido as follows:
“
Mr
Mcdonald Matitho: No I don’t agree with you due to the fact of
the moment when you absenteeism started, when you are absent
for that
day, you, you, you break down all the argument that you must not
claim that rest day because you are not worked for that
rest day. You
have to, to worked uhm for to, to gain the rest days, but he didn’t
fully worked for his rest day, he was aware
before he went to his
rest day…..
No according to the policy even
you are, even though you, you work on that day but you booked off
sick that day, they regard it
as off sick and at the moment when he
booked off, he was away from work not reported on duty by that time
where he was supposed
to reported on duty, have broken the whole,
whole procedure and rules and then that’s why I say he can’t
claim his
rest day whereby he didn’t work for it.”
[5] In terms
of the company’s disciplinary code one of the examples of
misconduct of a serious nature is “serious forms
of absences
from work without authorisation”. In terms of the code:
“The employer may issue a written warning
or must convene a
disciplinary hearing for misconduct of a serious nature if the
commission of a misconduct of a serious nature
could lead to a final
written warning or dismissal”. Mr Matido confirmed that no
written warning was issued or disciplinary
hearing held in respect of
applicants’ absence.
[6] It was
common cause that there was contact between Mani and the applicant on
25 August 2013 when she called him to inform
him he was
scheduled to work on the morning of Monday 26 August 2013. Applicant
was in Beaufort West attending the funeral of his
niece and said he
would be unable to do the shift. It was also common cause that on 29
August 2013, applicant telefaxed a copy
of his niece’s death
certificate to the company. His relative had died on the 15 December
2013.
[7] The
Arbitrator found that on the evidence before him:
“
The
Applicant had failed to report for duty when he was instructed to do.
His open defiance of instructions to report for duty left
the
Respondent with no option but to terminate his services. Such an
offence is described as serious in the Respondent’s
disciplinary code. It was not possible for the Respondent to hold a
disciplinary hearing as he did not report for duty. They therefore
invoked clause 5.9.2 of the disciplinary code.”
[8] It
was submitted on behalf of the applicant
inter
alia
that in accepting that the
company correctly invoked clause 5.9.2 of the termination code, the
Arbitrator failed to construe
the very provisions of that Code.
Further, that in finding that it was impossible for the company to
hold a disciplinary enquiry,
he failed to apply his mind to the fact
that the company dismissed the applicant with undue haste relying on
a policy that was
not applicable.
Evaluation
[9] The
clause relied on by the company providing for ‘desertion and
abscondment’ qualifies the acceptance of an alleged
repudiation
of the contract of employment by an employee, by including the words
“unless good cause is subsequently demonstrated.”
In my
view, this has to be read to afford a right to be heard to an
employee in such circumstances. This clause is not the type
of
deeming provision in which a termination takes place by operation of
law. It is a clause which deems an absence of 7 days
as a
resignation unless good cause is subsequently shown by an employee.
That a disciplinary course of action was the correct path
for the
company to follow was reflected in a letter written to applicant on
28 August 2013 from Madito reading as follows:
“
You
have been absent from duty without authority since 23 August 2013.
You are hereby reminded that, in
terms of company policies, such behaviour is regarded as serious
misconduct and may lead to disciplinary
action being taken against
you, which could include dismissal.
You are therefore urged, in your
own interest, to report for duty at your depot as soon as possible,
but no later than 29 August
2013 at 09:00.”
[10] On the
30 August 2013, however, the company appears to have taken a
different approach in that a follow up letter from Madito
reads:
“
Our
previous letter on this matter, dated 28 August has reference.
You have failed to report for
duty since 29 August and have to date failed to explain your
unauthorised absence to your Manager/Supervisor
as you are required
to do. Our various attempts to contact you have also failed.
Your continued unauthorised
absence from work is now regarded as desertion and represents a
breach of your employment contract.
Your employment is therefore
terminated on this basis, with effect from 30 August 2013.
You are required to contact the
Human Resources Department if you have any queries.”
[12] Given
the proper meaning of Clause 5.9 of the company’s termination
code, I cannot find that a reasonable decision maker
could pronounce
the dismissal procedurally fair. In addition, the finding that the
applicant had ‘absconded’ when on
the facts of this
matter the employer knew where the employee was, had communicated
telephonically with him on the 25
th
of August, and had
been provided with the death certificate before the termination of
the seven day period, is not a finding that
a reasonable
decision-maker could make. I must also agree with the
submissions for the applicant that the award does not
reflect an
enquiry into the issue of whether dismissal was a fair sanction in
all the circumstances, or whether any account was
taken by the
arbitrator of the employees 8 years’ service and disciplinary
record. The arbitrator therefore misconstrued
the nature of the
enquiry before him and reached an unreasonable result.
[13] In view
of the above, the award stands to be set aside. I do not see that any
purpose would be served in remitting it for re-hearing.
It should be
substituted. In so doing, I am mindful of the fact that the applicant
displayed an insubordinate attitude towards
his superiors and himself
conceded that his absence for at least 4 of the days in question was
unauthorised. He is a young man
with scarce skills but should
nevertheless be made aware that he has obligations to respect the
lawful instructions of his superiors.
With this in mind, I do not
believe that the remedy of full retrospective reinstatement is
apposite. I therefore make the following
order:
Order
1. The award under case number TOKISO
2742 is hereby reviewed, set aside and substituted as follows:
“
1.1
The dismissal of MW Ntambo was procedurally and substantively unfair;
1.2 The third respondent is ordered to
reinstate MW Ntambo;
1.3 The reinstatement is operative from the 1
September 2014.”
2. There is no order as to costs.
________________
H. Rabkin-Naicker
Judge of the Labour Court of South Africa
Appearances:
Applicant:
Adv XD Matyolo
Instructed by:
Matholoe Attorneys
Third Respondent: Cliffe Dekker Hofmeyr Inc