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[2016] ZALCD 3
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SACCAWU v Zamanyambose and Others (D639/14) [2016] ZALCD 3 (19 February 2016)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
Not
Reportable
Case no: D 639/14
In
the matter between:
SACCAWU
Applicant
And
ZAMANYAMBOSE
GOODNESS
MTHETHWA
First Respondent
CCMA
Second Respondent
COMMISSIONER
ALMEIRO
DEYSEL
Third Respondent
Heard:
18 February 2016
Delivered:
19 February 2016
Summary:
review. Application to review dismissed: Cross review dismissed
JUDGMENT
GUSH
J
Introduction
[1]
The Applicant in this matter applies to review and set aside the
award of the Third Respondent under case number KNDB 2724/12
and
substitute the award with an order “that the termination of
[the First Respondent’s] services was due to abscondment
are
and that the First Respondent is not entitled to any relief”.
[2]
The Third Respondent at the conclusion of the arbitration handed down
the following award:
a.
The
[Applicant] is ordered to reinstate the [First Respondent] in its
employ on the same terms and conditions of employment that
governed
her employment at the time of her dismissal.
b.
The
reinstatement referred to in paragraph (a) is to operate with
retrospective effect from the date 6 months prior to the issuing
of
this award;
c.
At
the time of the issuing of this award the remuneration due to the
Applicant as a consequence of the retrospective effect of the
reinstatement amounts to R63,986.16 minus such amounts as the
Respondent is in terms of the law applied to entitled to deduct;
d.
The
Applicant is to tender her services to the Respondent within 48 hours
of being notified of this award.
[3]
The First Respondent, too, disgruntled with the award seeks to cross
review that portion of the award dealt with in paragraph
(b) thereof
in which the Third Respondent limited the retrospective compensation
for a period of (six) 6 months prior to the issuing
of the award.
Background
[4]
As the background to the matter has been set out in detail by the
Third Respondent I set out below a brief summary thereof.
[5]
The First Respondent was employed by the Applicant in March 2004 as
an Organiser. For a considerable amount of time the Third
Respondent
had frequently been absent from work due to ill-health. She had been
paid a
full
salary during her absence.
[6]
During June 2011 and in response to requests by the First
Respondent’s doctors, the Applicant agreed to redeploy the
First Respondent, relieving her duties as an Organiser and placing
her in the Pinetown offices to perform duties as an Administrator.
It
was felt that this was a less demanding job and that it would allow
the First Respondent the opportunity to consult medical
practitioners
in respect of the ongoing illness.
[7]
The accommodation of the First Respondent by the Applicant and the
First Respondent’s frequent absence led to friction
between the
Applicant and the First Respondent.
[8]
On 10 November 2011 the First Respondent was advised by the Regional
Secretary that the meeting was to be held regarding her
ongoing
duties and for the purposes of assessing the redeployment of the
First Respondent to the Pinetown office.
[9]
It appears from the record that at about the same time the Third
Respondent was hospitalised and was absent from work.
[10]
On 2 February 2011 the Applicant addressed and delivered a letter to
the First Respondent headed “ABSCONTION FROM WORK”
the
letter advised the First Respondent:
(a)
According
to our records you have not been at work since 14 November 2011,
which itself is very serious misconduct, meaning you
have absconded
from duty since then.
(b)
As
you may recall you were supposed to report to the Durban local office
on Monday, 14 November 2011, which you have failed.
(c)
In
the light of the above you are given 7 days from date of receipt of
this letter, failing which, the union will have no option
but to
terminate your service
(sic).
(My emphasis)
(d)
Trusting
your find above to be in order as well looking forward your
co-operation in this regard.
[11]
On 5 February 2012 the 1
st
respondent addressed the
following letter to the applicant in response to its letter:
1.
Your
correspondence dated 1 February 2012 and received on 2 February 2012,
by my son and its content is noted with caution.
2.
However
I would like to register my disappointment and torture I’m
experiencing from you as regional office bearers.
3.
Furthermore
to that I would like to record the following:
3.1
You
as regional secretary wrote this unbecoming letter knowing exactly
the answers to it.
3.2
That
after regional meeting at was held for me on 10 November 2012, where
I was told that my sickness has become a nuisance, yet
I explained
that the person to give an explanation my assessment is the Dr, and
the regional chair was adamant that she had no
need to contact my
doctor. The meeting went out of hand and when the deputy chair
recommended to take over the meeting, regional
chair of fusion court
of the meeting. I was deeply hurt and frustrated at this meeting and
that I had to go for consultation to
Dr Singh same day.
3.3
I
was then admitted by Dr Singh in a medical certificate facts to the
regional office attached with ease of reference, which the
receipt of
same was confirmed, my condition worsen that I was further admitted
by doctors (gynaecologist) on 24 November 2012,
which you will also
notified about and that admission led me to having an operation of
which I’m still recovering from, medical
certificate was also
sent on receipt of same confirmed, also touched for ease of
reference.
3.4
This
act is inhuman and inconsiderate given the circumstances.
3.5
That
there are amicable ways are dealing with an ill-health employee
without discriminating harassing or being harsh to the person.
3.6
I
can see you are paving a way to get rid of me and in that you want to
make sure I do not even get paid by the Department of Labour
ensure
letter states clearly that you will terminate by services on
abscontion yet you know that this is not true.
3.7
In
the light of the above argue this maltreatment is a constructive
dismissal.
[12]
The Applicant’s Regional Secretary after having received this
letter wrote to the First Respondent’s doctor on
16 February
2012 seeking clarity on the First Respondent’s “situation”
requesting an urgent response to enable
the Applicant to “make
a determination around a future with our organisation”.
[13]
The following day, 17 February 2012 the Applicant wrote a letter to
the First Respondent, delivered on 21 February 2012 headed
TERMINATION OF YOUR SERVICE WITH THE UNION. The letter read:
“
Following
our letter dated 1 February 2012 and your subsequent response dated 5
February 2012; this letter serves to advise you
that union has
decided to terminate your service with effect from today. The
decision was communicated years based on the fact
that you have
absconded from work since 26 November 2011 and we expected you to
return back to work on Friday, 10 February 2012
in line with the 7
days it was given to you in our letter dated 1 February 2012, which
failed to do resulting in the union having
to take a decision to
terminate your service.
To
this end you are required to bring back all the union belonging such
as office keys and any other union property that you might
be in
possession of an same has to reach this office by no later than
Wednesday, 22 February 2012.”
[14]
The Third Respondent referred a dispute regarding her dismissal to
the Second Respondent who in turn appointed the Third Respondent
to
arbitrate the dispute.
[15]
It is clear from the record, the Third Respondent’s award and
the relief sought in prayer one of the Applicant’s
notice of
motion that at all times the Applicants have relied on the Respondent
having absconded as the grounds for her dismissal.
[16]
It is common cause that the Applicants did not conduct a disciplinary
enquiry or any investigation as envisaged by
section
10 of Schedule 8 of the Labour Relations Act
[1]
(the
“Act) or follow the guidelines in the cases of dismissal
arising from ill-health as envisaged by section 11
of
Schedule 8 of the Act.
[17]
The Applicant’s grounds of review suggest that the award of the
Third Respondent is reviewable in that whilst at all
times it relied
on the First Respondent having absconded the Third Respondent should
have concluded that it was clear that the
misconduct amounted to
absenteeism and for that reason the Third Respondent should have
found the dismissal to be fair.
[18]
In this regard the applicant relied in the matter of
SABC
v CCMA and others
[2]
and in particular paragraphs 12 to 14. The Applicant concedes that
the dismissal was procedurally unfair in that an enquiry should
have
been held into the First Respondent’s absenteeism.
[19]
Although it was argued that the exchange of correspondence between
the Applicant and the First Respondent should be interpreted
to
demonstrate an unequivocal intention on the part of the First
Respondent not to return to work (abscond) this argument clearly
cannot be sustained on a simple reading of the letters.
[20]
A further ground of review relates to the conclusion reached by the
Third Respondent that a dismissal was not an appropriate
sanction and
that the conduct of the First Respondent did not amount to
misconduct. In this regard there is no evidence to justify
a
dismissal for absenteeism save for a suggestion by the Applicants
witness that the ‘misconduct’ was serious. Serious
misconduct does not automatically result in a dismissal.
[21]
In his award the Third Respondent analyses in detail the meaning of
abscondment and what needed to be established in order
to sustain a
fair dismissal for absconding. The Third Respondent concludes that
the probabilities were overwhelming at the Applicant
did intend to
return to work and that it had not been established that the First
Respondent had absconded. The Third Respondent
concludes that it is
probable that the First Respondent was dismissed for being absent
without leave and for not submitting medical
certificates. Based on
the judgement in the
SABC
case the Third Respondent concludes
that the Applicant should have conducted a disciplinary enquiry but
did not.
[22]
It is so that the Third Respondent concludes that the First
Respondent’s explanation was satisfactory and had not been
proved on a balance of probabilities that the First Respondent’s
absence did not constitute misconduct he continues to find
that “the
sanction of dismissal was in any event unfair as any misconduct that
might have been committed was not so serious
as to warrant the
sanction of dismissal.”
[23]
The Applicant suggested that while it might be so that the dismissal
was procedurally unfair it was not substantively unfair
as, based on
the
SABC
case
[3]
the facts clearly
demonstrated that the First Respondent “had earned her
dismissal”. Apart from some evidence that
the Applicant
regarded the misconduct is serious there was no evidence to justify a
conclusion that the respondent had “earned
her dismissal”
or that dismissal was justified.
[24]
At all times during the arbitration (and in the Applicants pleadings)
the Applicant has relied on the First Respondent having
absconded. In
particular in the prayer the Applicant asks specifically for an order
“that the termination of services was
due to abscondment”.
In paragraph 18 of the Applicants supplementary affidavit the
Applicant pleads the following:
“
It
is the applicants respectful submission that a reasonable
Commissioner applied his or her mind to the evidence before the Third
Respondent would have concluded that, as a matter of law, the First
Respondent’s failure to attend a services to the applicant
in
circumstances in which it was no medical reason for her not to
constitute a repudiation of the First Respondent’s contract
of
employment with the applicant in consequence of which the applicant
was entitled, and its own election, except the First Respondent
repudiation the contract and to cancel the contract which it did.”
[25]
Applying the test on review as set out in the
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
[4]
Herholdt
v Nedbank Limited
[5]
and Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v
CCMA and Others
[6]
matters
I am not persuaded that the award of the Third Respondent is
reviewable. The Third Respondent clearly understood the nature
of the
enquiry and the material placed before him and reached a conclusion
that is clearly one that a reasonable arbitrator would
reach.
[26]
Turning to the cross review the First Respondent sought to persuade
the court that the exercise by the Third Respondent of
his discretion
regarding the extent to which back pay should be awarded committed a
reviewable irregularity. The First Respondent
relied on comments made
by the Third Respondent relating to the delay in the matter being
arbitrated and some speculation as to
whether the First Respondent
should or should not have been paid for the time she was absent.
[27]
The Third Respondent however records that he did take into account
the background to the matter and the Applicant’s contribution
“to the situation that developed by not providing the
respondent with detailed medical reports explaining what was going
on
and explaining for how long she would be away from work”
[28]
A careful reading of the Third Respondent’s award suggests
that, the Third Respondent not only understood the evidence
adduced
but clearly in determining appropriate compensation property
exercised his mind in limiting the compensation as he did.
[29]
I am not satisfied that, that part of the award that the First
Respondent seeks to have set aside is reviewable.
[30]
As far as costs are concerned I am mindful of the fact that the
Applicant and the First Respondent in accordance with the award
of
the Third Respondent will recommence their employment relationship.
Neither the Applicant in the main review nor the First Respondent
in
the cross review have succeeded. I am therefore satisfied that it is
not appropriate in the interests of fairness or lawful
to make a
costs order.
[31]
In the circumstances and for the reasons above I make the following
order:
31.1
the
Applicant’s application to review the award of the Third
Respondent’s is dismissed ;
31.2
the
First Respondent’s application to review portion of the Third
Respondent’s award is dismissed;
31.3
there
is no order as to costs.
D H Gush
Judge of the Labour Court
of South Africa Johannesburg
APPEARANCES:
FOR THE
APPLICANT:
B
Mgaga Garlicke and Bousefield
FOR
THE RESPONDENT:
K Allen instructed by Japhta Inc
[1]
Act 66 of 1995.
[2]
[2002] 8 BLLR 693 (LAC)
[3]
Supra
[4]
(2007) 28 ILJ 2405 (CC)
[5]
(2013) ILJ 34 2795 (SCA)
[6]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).