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[2016] ZALCJHB 230
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Sasol Mining (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1848/13) [2016] ZALCJHB 230 (1 March 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
CASE
NO: JR1848/13
In the
matter between
SASOL
MINING (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
WILFRED
NOKO NKGOENG
N.O
Second Respondent
NUM
on behalf of ELVIS SONGO
Third
Respondent
Date
Heard: 01 March 2016
Date
Delivered: 01 March 2016
Date
Edited: 19 May 2016
EX
TEMPORE-JUDGMENT
CELE
J:
[1] The
application before me is one that has been brought in terms of
Section 145(2) of the Labour Relations Act to review and
set aside
the arbitration award dated 2 July 2013 issued by the second
respondent in this matter. The commissioner found the dismissal
of a
member of the third respondent to have been substantively unfair and
ordered the applicant to reinstate him. The third respondent
did not
oppose this application; the services of the Rule 7A(8) notice
notwithstanding.
[2] Mr
Elvis Songo – initially represented in these proceedings by the
third respondent; that is the union that he was a member
of –
commenced his employment with the applicant on 16 August 2006 as an
operator. During the period 27 August 2012 up to
7 September 2012, Mr
Songo was absent from work. On 27 August he went to a bus stop to
meet his work colleague; a Mr Frank Maloka.
He reported to Mr Maloka
that he was unable to report for duty. Mr Maloka conveyed that
message to Mr Songo’s supervisor
a Mr Joel Zunguza. There is a
dispute relating to whether Mr Songo indicated when he would report
back. There was a version that
he had said he would be back on 29
August 2012. What is clear though is that he did not come back.
Instead, during this period
of absence he went back to Port
Elizabeth, which is his home, where he had been when he arrived back
on 27 August 2012. He seemed
to have heard a story that his mother
was sickly.
[3] The
applicant has a disciplinary code and procedure in terms of which an
employee, who absents him or herself for a period longer
than four
days without a valid reason, exposes him or herself to being
dismissed by the respondent or by the employer, in fact.
The
applicant decided to charge Mr Songo with misconduct of being absent
from work without leave for 10 days. At the time Mr Songo
had a
verbal warning of 5 June 2012 issued to him after he had been absent
from work for two days. That warning was still valid,
therefore, at
the time. Mr Songo was then referred to a rehabilitation programme to
mend his ways about absenteeism. The company
was, at the time, very
much concerned about the escalation of absenteeism by its employees.
There were meetings held by supervisors
with employees to try and
urge them not to absent themselves without any prior authorisation.
[4] At
the internal disciplinary hearing held the reason given for his
absent by Mr Songo was that he had no money to get transport
to work.
He also said that his mother in Port Elizabeth was not well. He was
found guilty of absenteeism and was dismissed. He
referred an unfair
dismissal dispute for conciliation and for arbitration. At
arbitration it remained common cause that Mr Songo
was absent for the
stated period of time of 10 days. He said again that he had no money
to present himself and he had reported
to the supervisor. He said
that he had indicated to a previous supervisor that his mother had
been sickly and he claimed that he
had told the current supervisor as
well.
[5] The
second respondent issued an award by finding that Mr Songo was guilty
of misconduct, but that a sanction of dismissal was
unfair, rendering
the dismissal substantively unfair. He ordered the applicant to
reinstate Mr Songo with limited retrospectivity.
The applicant
initiated the present review proceedings, holding that the
commissioner failed to apply his mind appropriately to
the evidential
material that was before him on the basis that in terms of the
disciplinary code, an employer was entitled to dismiss
once there was
an absent of 10 or more days. And also the applicant contended that
the commissioner contradicted himself in the
award that he issued by
firstly finding that the dismissal was substantively fair, and then
turned around when it comes to the
sanction to say the dismissal was
substantively unfair.
[6] I
must agree with the applicant that the phraseology in the award does
tend to create some confusion in paragraph 26 of the
award, which
reads thus:
“
[26]
Given the above, it is safe to conclude that there were no compelling
reasons or a situation
and/or a situation beyond the control of the
applicant. The applicant was in breach of the rule which was known to
him or could
reasonably be aware of the rule. If the applicant was
not aware of the rule, he could not have asked his colleague to
relate the
message to the supervisor. It follows that the dismissal
of the applicant by the respondent was substantively fair.”
That
latter part of fair is the one that tended to create some confusion.
Paragraph 27 of the award then reads:
“
[27]
I am now turning to the appropriateness of the dismissal sanction. In
my view, taking into
account the evidence and circumstances of the
matter in totality, the prejudice of not reinstating the applicant
outweighs the
prejudice if he is reinstated. The number of days
absent was not too excessive, and also that the applicant conceded
that he was
mistaken by not following the correct channels. In view
of the above, it is safe to conclude that the applicant has shown
remorse
of which weight in favour of reinstatement. It does follow
that the dismissal sanction meted out by the respondent against the
applicant was not appropriate.”
[28]
However, since the applicant was to a certain extent the architect of
his own misfortune,
I am prepared to reinstate him not from the date
of dismissal, which I believe would be just and equitable in the
circumstances
of the matter. According to the information on file, it
appears this matter had been postponed on numerous occasions. The
first
postponement was due to unavailability of both parties on 28
November 2012. The second postponement was at the discretion of the
commissioner due to the time constraint on 4 February 2013, followed
by another request due to the absence of the employer’s
representative on 2 May 2012.
[29]
Given the above, I make the following award.
[30]
The dismissal of Mr Songo, the applicant, by Sasol Mining, the
respondent, was substantively
unfair in regard to the dismissal
sanction. The respondent is ordered to reinstate the applicant on
same terms and conditions existing
prior to the dismissal, effective
from 1 July 2013. The applicant was to report on duty on the 14
th
of July 2013.”
[7] The
court has therefore to be guided by the review test. The question is
whether or not the decision reached by the commissioner
in this
matter is one that a reasonable decision-maker could not reach in the
circumstances. See in this respect
Sidumo and Another v Rustenburg
Platinum Mines
(2007) 28 ILJ 2405 (CC). I also have to consider
the applicability of this principle in various cases, but including
Gold Field Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
and Others
(2014) 35 ILJ 943 (LAC). This judgment does tend to
explain the principles applicable in Sidumo when it comes to the
review test.
Particular reference is made to paragraph 13, going
through to paragraph 21. Of particular importance; I will read
paragraph 18
and I will then go to one of the paragraphs, which I
will soon identify. Paragraph 18 reads: ‘In short...’
Sorry, it
is paragraph 16.
“
[16]
In
short: A court must ascertain whether the arbitrator considered the
principle issue before him or her; evaluate the facts presented
at
the hearing and came to a conclusion which was reasonable to justify
the decision he or she arrived at.
……
..
[18] In a
review conducted under Section 145(2)(a)(c)(ii) of the LRA, the
review court is not required to take into account every
factor
individually or consider how the arbitrator treated and dealt with
each of those factors, and then determine whether a failure
by the
arbitrator to deal with one or some of the factors amounts to
process-related irregularities sufficient to set aside the
award.
This piecemeal approach of dealing with arbitrator’s award is
improper as a review court must necessarily consider
the totality of
the evidence and then decide whether the decision made by the
commissioner is one that a reasonable decision-maker
could make.”
[8]
I have looked at the submissions of the applicant and I have
considered the issue whether or not progressive discipline was
also
not called for in this matter. The exchange that I had with the
representative of the applicant, Mr Hinds, was mainly about
this
issue. It would seem to me that progressive discipline may not have
been considered by the commissioner. It could have been
considered,
but I do not see any harm done by the commissioner in that he did
order reinstatement. I am of the view that there
is a good prospect
of other commissioners concluding that reinstatement was called for
and also suggesting that progressive discipline
was called for here.
[9] This
is a situation where this employee had been absent for two days and
was given a verbal warning. He then absented himself
for 10 days, but
during that period he did make an attempt to report. And it seems to
be a case where his mother was unwell. He
obviously was guilty of
absenteeism, but he obviously acted stupidly in the way he went about
conducting his affairs. Instead of
going back home, he should have
come back to report for duty earn money and possibly send it back
home. This is a case of an employee
who can still be rehabilitated.
There is a programme that he had been put into.
[10]
Clearly, therefore, I am of the view that it is a case where
progressive discipline could be exercised. And I am therefore
of the
view that the decision reached by this commissioner cannot be
described as a decision that no reasonable commissioner could
have
arrived at.
[11] I
accordingly make the following order:
1.
The application to review this arbitration
award is dismissed.
2.
No costs order is made.
____________
Cele J
Judge of the Labour
Court of South Africa
Appearances
Counsel
for Applicant: Mr. A
Hinds of Anthony Hinds Attorneys
Counsel
for Respondent: Unopposed