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[2017] ZALCJHB 245
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Msibi and Others v CCMA and Others (JR1365/13) [2017] ZALCJHB 245 (22 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: JR 1365/13
In
the matter between:
Caiphus
Msibi and 12 Others
Applicant
and
CCMA
First Respondent
ELSABE
MAREE N.O.
Second Respondent
LE
SEL RESEARCH (PYY) LTD
Third Respondent
Heard:
2 June 2017
Delivered:
22 June 2017
JUDGMENT
WHITCHER
J
[1]
In 2013 the applicants made application to review and set aside a
ruling handed down by Commissioner W Koekemoer, who issued
the
following ruling:
This
matter was already dealt with in an arbitration award under case
number CHEM 526-08-09132009. The commissioner found that the
applicants did not establish dismissal and their case was dismissed.
The case of the applicants is herewith dismissed due to this
Commission lacking jurisdiction.
[2]
On review, Wilken AJ found that the evidence before the Commissioner
indicated that the applicants had in fact been dismissed
because the
company was of the view that the applicants had absconded. He
found that the Commissioner had obviously failed
to investigate these
facts and deal with the real issue before him, namely a dismissal for
misconduct and whether it had been a
fair dismissal.
[3]
In
SABC
v CCMA and Others
[1]
it
was
held
that
desertion necessarily entails the employee’s intention no
longer to return to work and that the employer would have to
establish this intention in a fair process. I would add
that
mere absence and unexplained absence is not conclusive proof of an
unequivocal intention not to return. Employees must be called
upon to
show cause why the employer should not treat their absence as an
intention not to return to work. Up to the point when
the intention
not to return is established – the absent employees are simply
absent without leave.
[4]
When Wilken AJ stated that the
Commissioner had failed to properly investigate the matter, he
obviously had the aforementioned principles
in mind.
[5]
Wilken AJ set the ruling aside and referred the matter back to the
CCMA for arbitration before another commissioner. The court
pertinently directed that the new arbitrator must address the matter
as a dismissal dispute and deal with the merits of that dispute.
[6]
The award
itself
clearly indicates that the new arbitrator, the second respondent,
ignored the Court’s directive and did not determine the
real
dispute, which is whether the applicants did in fact abscond and
whether the employer engaged in a fair process to establish
this.
[7]
The record would not have taken the matter further so the failure by
the applicants to file a clear record and on time is condoned.
Their
explanatory affidavit also indicates that they had difficulty
securing a proper record from the CCMA.
[8]
This case is important - the applicants were deprived of their UIF
benefits because the company had noted abscondment on their
UIF
cards.
Order
[9] The award by
the second respondent dated 18 May 2013 under case number GATW1050-10
is reviewed and set aside.
[10] The matter
is remitted to another arbitrator who must accept that the applicants
were dismissed and must accordingly deal the
merits of the dismissal.
[11] There is no
order as to costs.
________________________________
Whitcher J
Judge of the Labour Court
of South Africa
APPEARANCES:
For the
Applicants: Self represented.
For the Third
Respondent: Yusuf Nagdee Attorneys
[1]
(2002) 8 BLLR 693
(LAC).