About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 378
|
|
UTI Pharma v GIWUSA obo Luvatsha and Others Whitcher (JR993/14) [2017] ZALCJHB 378 (16 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 993/14
In
the matter between:
UTI
PHARMA
Applicant
and
GIWUSA
obo LUVATSHA & 9
OTHERS
First
Respondent
PHALA,
MOTLATSI,
N.O
.
Second
Respondent
NATIONAL
BARGAINING COUNCIL FOR THE
CHEMICAL
INDUSTRY
Third
Respondent
Heard:
10 May 2017
Delivered:
16 October 2017
JUDGMENT
WHITCHER,
J:
Introduction:
[1]
The
applicant seeks an order reviewing and setting aside the arbitration
award issued on 4 April 2014 by second respondent
under
case number GPCHEM 525-11/12, and substituting the award with an
order to the effect that the dismissal of the first
respondents was
substantively fair; alternatively, remitting the matter to the third
respondent for a hearing
de
novo
and determination by a different commissioner (with costs).
The
evidence at the arbitration:
[2]
On Monday,
23 April 2012 at about 7.45am a senior supervisor, Jeff
Nkonyane, noticed that the first respondents had not
reported for
work. He testified that he had to call in temps because the workplace
could not function with 10 employees absent.
[3]
Later that
morning, he ascertained that two of the first respondents, Nokuthula
Dlamini and Lindiwe Luvatsha, had called and told
their supervisors
that they were at the Commission for Conciliation Mediation and
Arbitration (CCMA) for a conciliation hearing
and will return to work
after the hearing. Dlamini had called at about 9am and Luvatsha had
called the previous evening. The first
respondents reported for work
at 12 noon.
[4]
The
conciliation hearing concerned final written warnings the first
respondents had received a few weeks back.
[5]
The first
respondents were charged in the following terms:
On
23 April 2012 you failed to communicate your intended
absence to your supervisor at least 2 hours after the commencement
of
your shift.
Furthermore
you did not get
permission
from
your supervisor about your absence. Furthermore because of your
unauthorised
absence the company was inconvenienced and had to
get temps to assist in doing your job and that cost the company as
this was unplanned.
[6]
The charge
made reference to Rule 2 of the Disciplinary Code which stipulates
that employees must inform the company of their absence
and the
nature and duration thereof within two hours of the commencement of
their shift.
[7]
Madukane, a
supervisor, testified that there were two sets of rules applicable to
absence from work.
[8]
Rule 2
provided for unforeseen and unplanned absences, where the employee
would need to contact his or her line manager within two
hours of the
commencement of his or her shift.
[9]
However,
there existed another rule, which, although unwritten, was known by
the first respondents. This rule applied to foreseen
absences and an
employee needed to obtain permission from his or her supervisor and
complete a leave form prior to the event.
[10]
He pointed
out that the first respondents had completed leave forms before they
attended the arbitration of the matter of 23 April 2012.
[11]
Nkonyane
gave similar evidence but when asked whether the first respondents
had complied with the rules, he said yes, but only Dlamini
and
Luvatsha.
[12]
The
applicant submitted that the first respondents had known well in
advance that on 23 April they would be absent from work
for a
substantial period of time and would have appreciated the effect of
this on the functioning of the company. It is common
cause that the
company was forced to employ temps at short notice and at a huge
expense.
[13]
The
Commissioner agreed with the first respondents’ submissions
that their dismissals were substantively unfair because, when
one
considers the contents of the charge, they were only charged with
contravening Rule 2 and they did comply with the rule. In
this
regard, Dlamini and Luvatsha had notified the company of the first
respondents’ absence in the two hour period.
[14]
The
Commissioner also accepted their claim that Rule 2 was the only rule
they were aware of.
[15]
It was also
the first respondents’ case that they completed leave forms to
attend the arbitration because the forms were brought
to them by
their supervisors.
The
review:
[16]
In my view,
the Commissioner took a very technical approach to the charge and
failed to appreciate that the allegations in the charge,
read fully
and sensibly, raised the following case for the first respondents to
meet: not simply whether they had called their
supervisor within the
two hour period but also whether their failure to warn the applicant
in advance about their intended absence
constituted misconduct,
particularly given the fact that 10 employees would be absent.
[17]
It does not
matter whether such a rule existed in writing or not. Given that a
collective absence was planned, common sense and
fairness would have
dictated that the first respondents provide the applicant with a fair
warning about their intended absence.
They could have, but chose not
to. As a result, the applicant had to employ temps in their place.
[18]
In all
these circumstances, the actions of the first respondents constituted
misconduct. This case is not about their right to attend
the
conciliation. It is about the fact that the particular circumstances
of this case placed a duty on the first respondents to
warn your
employer about a planned collective absence.
[19]
The
Commissioner failed to appreciate this and chose to take a rather
technical approach to the matter, which served to avoid the
real
issue before him.
[20]
It is
significant that, even on the Commissioner’s technical
approach, eight of the first respondent’s did not technically
comply with the written rule. They did not call their supervisors
within the two hour period.
[21]
The next
issue is whether the dismissal of the first respondents was fair.
[22]
The
applicant submitted that the first respondents were on final written
warnings at the time of the offence. It however failed
to establish
with reference to the record of evidence that the warnings were for a
similar offence. The warnings thus have no bearing
on whether the
dismissal was fair.
[23]
In my view,
considering the first respondents did attempt to comply with a
written rule, it is arguable that they should have received
a severe
sanction short of dismissal.
[24]
This brings
the court to the issue of relief. I note that two years had already
passed by the time arbitration was held and there
is no evidence on
record of the parties having addressed the Commissioner on the
appropriate relief in the event that the dismissals
are found to be
unfair.
[25]
In light of
the above, it would be appropriate for the matter to be remitted to
the first respondent for a commissioner to determine
whether the
first respondents should be reinstated or awarded compensation.
Order:
[26]
In the
circumstances, the following order is made:
1.
The
arbitration award issued by Arbitrator Motlatsi Phala on
31 March 2014 under case number GPCHEM 525-11/12 issued
under the auspices of the National Bargaining Council for Chemical
Industry is reviewed and set aside and is substituted with an
award
that:
i.
“
The employees were
guilty of the misconduct in issue, but their dismissal was
substantively unfair.”
2.
The third
respondent is directed to appoint an arbitrator to determine the
appropriate relief to be granted taking into consideration
section
193
of the
Labour Relations Act 66 of 1995
.
3.
There is no
order as to costs.
_______________________
B
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: A J Nel,
Instructed
by: Lee and McAdam Attorneys.
For
the First Respondents: Mr M. Bayi of Bayi Attorneys