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[2015] ZALCCT 53
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Gomba v Commission for Conciliation, Mediation and Arbitration and Others (C410/2014) [2015] ZALCCT 53 (20 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
Number C410/2014
In
the matter between:
VUKILE
GOMBA
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
K KLEINOT
NO
Second Respondent
NAMPAK
TISSUE (PTY)
LTD
Third Respondent
Date
heard: 15 April 2015
Delivered:
20 August 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an arbitration award under
case number WECT5100-14 in which the second respondent (the
Commissioner) found the dismissal of the applicant to be
substantively and procedurally fair.
[2]
The applicant was employed as an electrician from the 1 November 2003
until the 6 February 2014. At the time of his dismissal
he was
earning R16,153 84, a provident fund contribution of 1,211 54 and
insurance of R726 92. He was charged with misconduct in
that he was
absent from work without authorisation from 17 December to 3
January 2014. It was common cause that he was not
at work on the days
cited. He had no valid written warnings for a similar offence. His
application for annual leave was submitted
on 2 September 2013 and
again on 6 December 2013. It was also common cause that applicant was
due 39.3 days leave.
[3]
The transcript of the arbitration reflects the events leading up to
the charges against applicant. The applicant’s manager
Mr Essa
(Essa), testified that the applicant applied for leave in September
for the dates 23 December 2013 to the 15
th
of January
2014. This was declined due to operational requirements because the
company could not operate with one electrician.
There was a grievance
hearing and management put forward alternative dates being the 17 of
December until the 2
nd
of January 2014. According to Essa
the applicant was not happy with the dates but accepted them. After
the grievance hearing applicant
came back to Essa later that
afternoon and wanted to extend the dates. Essa told him that
unfortunately the company could not because
applicant was on stand-by
at the weekend and the company only had one electrician at that time.
He then took applicants leave application
form, and put in the dates
the company offered and signed it. He gave it to Kim Charles who does
the time-keeping and asked her
to process it.
[4]
Two days later Essa found another leave application form next to his
computer with the dates applied for now the 17
th
of
December to the 3
rd
of January 2014. Essau took this to
his manager who denied the leave. The evidence in chief of Essau is
recorded as follows:
“
Ms
Rosanna:
Did you inform Mr Gomba of
this?
Mr
Essau
: Yes what I did was I took both
leave forms to him, I made copies of it and I gave it to him.
Ms
Rosanna
: And what did you say?
Mr
Essa:
And I informed him that according
to the leave application forms none of it, one has been cancelled and
the other one has not been
authorised either, so he cannot actually
go on leave……..
I
have told him, I again told him that according to this forms he has
no authorised leave and he cannot go on leave and he responded
on
that and he said will just go.”
[5]
The evidence given by the administrator Ms Charles was that the
applicant came to see her “because, what he told me was
the
dates are incorrect, Essa wrote the wrong dates on the form….I
told him but the form looks really ugly I will advise
you why we
don’t we write out, make out another form….He said okay
fine and then he wrote out another form he did
not put dates on he
just wrote his name and employee number and then he walked out the
door and before he left the office he told
me ‘don’t
forget to cancel the form’. She further testified that “the
second form was brought to me with
a note at the bottom,’ leave
denied’. Mr Essa asked me to make copies of both leave forms so
that we can give it to
Mr Gomba so that he is aware that the one form
was cancelled and the other forms says denied.”
[6]
The evidence of Mr Prince Ngobe (Ngobe), Operations Manager at the
arbitration and chairperson of the disciplinary enquiry is
worth
recording. He stated that: “I found Mr Gomba to be – what
is the word – not have respect for authority
or management
because after all the discussions and proceedings that had taken
place, he still went ahead and changed his leave
form according to
his liking which invalidates the agreement that was made to him with
him to take leave from the 17
th
to the 2
nd
.
Already he is going back to the originally cancelled, sorry not
cancelled, but not approved leave application by putting the date
of
the 3
rd
,
thereby technically he does not have authorised leave”.
[7]
The Commissioner, in analysing the evidence before him stated the
following in the award:
“
24.
The basis for the challenge of the dismissal is the fairness of the
sanction and the fact that Mr Gomba believes that the leave
that he
took had been authorised. The challenge to the fairness of the
sanction is dependent on the merits of the case. The view
that Mr
Gomba’s leave was authorised is patently incorrect. Mr Gomba’s
own evidence was that he rejected the period
Mr Essa had authorised
and regarded it as fraudulent. Further that Ms Charles was then
instructed to remove the authorised leave
from the system. To argue
that this leave was authorised is nonsensical. The second application
reflected an extra day, the 3 January
2014, this was inserted by Mr
Gomba who was aware that this was not was offered or suggested. “
[8]
The Commissioner also records that it was Gomba’s evidence that
he had traditional ceremonies to perform in the Eastern
Cape. This
was the reason he wished to have the leave extended for one day, the
Friday 3nd January. In Gomba’s view
the only unauthorised
leave he took was the 3
rd
of January.
[9]
It is submitted by applicant in his founding papers that the
Commissioner’s failure to consider the issue that the employer
had cancelled all of applicant’s previously authorised leave,
amounted to a gross irregularity. Further that the Commissioners
failure to take due account of the evidence that the period from 17
December to 2
nd
January had been authorised, had led to an
unreasonable result.
[10]
In my view, the Commissioner does not reflect that he gave any
consideration to an essential enquiry i.e. whether the company
issued
a reasonable instruction, in telling the applicant that he could take
no leave at all. The omission was compounded by the
Commissioner’s
apparent acceptance of the company’s proposition that the
applicant cancelled the authorised leave himself,
when he made a new
application which included the previously authorised period, plus the
3
rd
January. This was despite the evidence given by Ms
Charles that she herself had written ‘cancelled’ on the
first leave
form and that this did not mean that the leave was
cancelled as she had no authority to do this. It meant only that the
form was
cancelled. The entire leave became cancelled on decision of
management.
[11]
In
Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus
Curiae) (2013) 34 ILJ 2795 (SCA)
the court held that:
“
[25]
In summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to
amount to a
gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the enquiry
or arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
to particular facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable.”
[12]
The decision to cancel all applicant’s leave by the company and
to order him not to take leave at all, was material evidence
before
the Commissioner. The failure of the Commissioner to accord this
evidence any weight and to accept that the applicant cancelled
his
leave himself, led to an unreasonable result i.e. that applicant’s
dismissal was fair on the basis that he had absconded
for the whole
period in question. I therefore find the award susceptible to
review. There is no purpose in remitting the
award. The substitution
of the award should take into account that the applicant was
insubordinate in taking the additional day’s
leave off without
authorisation. I therefore make the following order:
Order:
1.
The award under case number WECT 5100-14 is reviewed and set aside
and substituted as follows:
“
1.1
The dismissal of the applicant was substantively unfair;
1.2
The third respondent is ordered to reinstate the applicant into the
position he held prior to
his dismissal as from the date of his
dismissal;
1.3
Such reinstatement is subject to a
final written warning in respect of the taking of unauthorised
leave
valid for a period of six months from date of this order;
1.4
The respondent is to pay the costs of this application.
________________________
H. Rabkin-Naicker
Judge of the Labour
Court
Appearances
:
For
the Applicant: Bagraims Attorneys
For
the Third Respondent: MJ Van As instructed by Cliffe Dekker Hofmeyer
Inc