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[2018] ZALCJHB 288
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Hollard (Pty) Ltd v Hlatswayo NO and Others (JR1203/16; J1256/16) [2018] ZALCJHB 288 (11 September 2018)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case
Nos: JR 1203/16
J
1256/16
In
the matter between:
HOLLARD
(PTY) LTD
Applicant
and
THEMBA
HLATSHWAYO (
N.O.
)
First
Respondent
THE
COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION
Second
Respondent
YASSEN
HASSAN EBRAHIM
Third
Respondent
Heard
:
6 September 2018
Delivered
:
11 September 2018
Summary:
(Review- absenteeism – findings of arbitrator on substantive
fairness not unreasonable)
JUDGMENT
LAGRANGE
J
Background
[1]
The third respondent in this matter was dismissed for unauthorised
absenteeism for the period 21 to 24 December 2015.
[2]
Less than a month before that, he had received counselling and a
written warning relating to poor attendance. On 21 December,
it is
common cause that he reported his absence to one Siphokazi Nyetela
(‘Nyetela’), a team leader. Nyetela was not
Ebrahim’s
team leader. His team leader was Serona. It was also not disputed
that he could not attend his doctor who normally
treated him for his
condition, which the applicant was aware of. It was suggested by the
applicant that he could have gone to any
other doctor and the medical
aid would have paid for this, but this was not pertinently raised in
the arbitration with Ebrahim.
In relation to the medical
justification for his absence, the issue for the applicant was that,
Ebrahim did not produce a medical
certificate on his return to work.
Ebrahim had raised the reason for his absence at the disciplinary
enquiry.
The arbitration award
[3]
The arbitrator found that the third respondent’s dismissal was
substantively and procedurally unfair and ordered his reinstatement.
[4]
The arbitrator’s reasoning in relation to the finding of
procedural unfairness appears to be the following:
4.1 Ebrahim was asked to
provide a statement prior to the respondent making out its own case
in disciplinary enquiry which the arbitrator
considered to be a
glaring flaw and was contrary to the disciplinary procedure. It
should have been run according to the
applicant’s own
disciplinary code;
4.2 as a result of the
procedural irregularity his personal situation was not considered,
and
4.3 he was not provided
with minutes of the internal enquiry.
[5]
The arbitrator’s finding of substantive unfairness seems to be
based on the following:
5.1 The applicant’s
own code did not recognise absenteeism as a serious form of
misconduct.
5.2 His failure to see a
doctor was due to shortage of ready cash.
5.3 The applicant was
aware of his condition and had given him time off for it previously.
5.4 The third respondent
had informed Nyetela of his situation. The failure of the applicant
to call Nyetela to shed more light
on whether she was contacted or
not, justified an adverse inference against the applicant.
Grounds of review and
evaluation:
[6]
In essence, the applicant raised the following grounds of review:
First ground
[7]
The arbitrator misconstrued the relevance of the evidence about
whether or not the third respondent spoke to Nyetela, because
it was
common cause that he did. However he only informed her of his absence
on the first day and did not contact anyone during
the remaining
three days and in any event, she was not his team leader who he ought
to have contacted, so it was irrelevant that
he communicated with
her.
[8]
The issue of Nyetela not being Ebrahim’s team leader was never
put to him in the arbitration. His evidence was that,
at the
time, Nyetela was the manager on duty. This was also not
disputed.
[9]
While the arbitrator was wrong in drawing an adverse inference of
some kind on account of the applicant’s failure to call
Nyetela
as a witness, there was no dispute that Nyetela was contacted by SMS
and the applicant did not put up an alternative version
of the
contents of the SMS. Similarly, the applicant did not dispute
Ebrahim’s claim that he also spoke to Nyetela. It also
did not
gainsay his evidence that he advised her that he was ill with
the same symptoms he had previously and would consult
with a doctor
but could not say when he would be back, and that she had responded
that it was ‘fine’ and they would
speak when he returned.
He claimed that he had showed her his bank statements to show he
could not afford to visit a doctor at
the time. At his enquiry, it
was common cause that he said he had self-medicated as he knew what
he had to take for his condition.
[10]
It is unclear what the nature of the adverse inference was that the
arbitrator claimed to draw on the basis of Nyetela’s
absence.
Such an inference might have been warranted if the applicant disputed
Ebrahim’s version of what was communicated
to her by him, but
it did not contest it. In effect, the arbitrator could have accepted
his version without needing to draw an
‘adverse inference’
in the true sense of the term. Consequently, the arbitrator’s
error had no material
impact on the reasonableness of the inference
that could be drawn about Ebrahim’s communication with
Nyetela.
Second ground
[11]
The applicant alleges that, in the absence of any medical records,
there was no evidence to support the third respondent’s
claim
that he was absent due to illness. In terms of company procedures, he
required a medical certificate before his leave would
be treated as
authorised sick leave, given the length of his absence. In this
regard the arbitrator also failed to consider the
‘undisputed’
evidence that the medical aid allowed him access to specific doctors
at no further cost
[12]
The only time it was suggested he could have used his medical aid to
go to another doctor was when the commissioner was questioning
Ms G
Williams, the call centre manager, after she had already been
re-examined by the applicant’s representative. After outlining
various types of leave employees could apply for, she testified that
if no proof of sick leave was presented, then a counselling
session
would be held with the employee and if it happened again then there
would be a session with HR and a warning would be issued
depending on
the scenario and the severity of the case. In Ebrahim’s case,
he had been counselled on one occasion on 25 November
2015 in respect
of days he had been absent during the months of September, October
and November which were all authorised absences.
On 17 December
he had then been issued with a warning following two instances of
unauthorised leave.
[13]
It is true there was no evidence other than Ebrahim’s word that
he was suffering from a recurrence of a condition and
therefore he
had not complied with the rule. The applicant did not dispute that he
was suffering from a particular condition or
that it knew of it. It
also did not dispute his evidence that the doctor who normally
treated him for the condition was on leave.
The evidence on whether
he would not have had to pay for treatment and medication if he had
gone to another doctor was at best
equivocal and was not central to
the applicant’s case. The foundation of its case was that,
without a medical certificate
the leave was unauthorised whatever the
reason for not obtaining one. The applicant also did not attempt to
dispute Ebrahim’s
version that on 21 December he had explained
his absence on account of a recurrence of his illness and that
Nyetela appeared to
accept that he would explain things on his
return, albeit that she might have expected him to have returned with
a certificate.
[14]
In relation to this ground, it does not appear that the arbitrator
concluded that his leave was authorised but rather that
there were
circumstances which mitigated his failure to return with a
certificate. That was not a wholly unreasonable inference
to
draw.
Third ground
[15]
There was no evidence to support a conclusion that he was in any way
prejudiced by the manner in which the disciplinary enquiry
was
conducted and accordingly no basis for concluding it was procedurally
unfair.
[16]
In this respect, the applicant is on stronger ground. The arbitrator
appears to have overlooked that Ebrahim was given an opportunity
to
challenge the company’s opening statement at the enquiry but
chose not to pose any questions arising therefrom. The alleged
failure to provide him with minutes of the enquiry was also not
something which impacted on the procedural fairness of the enquiry
as
such. The procedure of the company making a statement and allowing
the employee to challenge it, is somewhat unusual but in
the absence
of the employee wanting to challenge its contents or question the
author of the statement and being deprived of that
opportunity, any
prejudice he might have suffered was not demonstrated. It is trite
law that mere non-compliance with a disciplinary
code, without any
attendant prejudice arising therefrom, is not sufficient to make out
a case for procedural unfairness.
Fourth ground
[17]
The arbitrator most importantly failed to take account of the fact
that he had been subjected to a system of progressive discipline
for
absenteeism and had received his last warning for it for days before
committing the offence again.
[18]
It is true
that Ebrahim had received counselling in November about absenteeism
but inexplicably none of that absenteeism was unauthorised.
The first
and only instance of counselling followed by a first and only written
warning was on 17 December which was for unauthorised
absenteeism.
This is one of those instances where the court cannot say that his
absence on 21 to 24 December so clearly warranted
dismissal, that it
is incomprehensible how the arbitrator could have come to a different
conclusion. It may be that the arbitrator
neglected to consider an
alternative or lesser sanction such as a final warning, if he thought
the infraction was not serious enough
to warrant dismissal because of
mitigating factors and the absence of prior final warning, but his
finding that the dismissal was
substantively unfair cannot be set
aside using the applicable standard of review.
[1]
The arbitrator’s findings in this respect fall within the ambit
of his power to determine the substantive fairness of the
dismissal
[2]
and are not
findings no reasonable arbitrator could have reached on the evidence
before him.
Relief and costs
[19]
The review is partially successful only on the issue of procedural
fairness, but that does not affect the relief awarded so
it is not
necessary to alter the relief granted. On balance, the more
significant finding of substantive fairness is upheld and
the third
respondent is entitled to his costs in my view.
Order
[1] The arbitration award
of the first respondent dated 16 May 2016 issued under case number
GAJB 2410-16 is reviewed and set aside
only to the extent that the
arbitrator’s finding that the dismissal of the third respondent
was procedurally unfair is replaced
with a finding that the dismissal
was procedurally fair.
[2] Accordingly,
paragraph 6.1 of the award is replaced with the following :
6.1 I find that the
dismissal of the applicant, Yassen Hassan Ebrahim, by the respondent,
Hollard Insurance, was substantively unfair.
[3] The said award, as
amended above, is made an order of court.
[4] The applicant must
pay the third respondent’s costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
A
J Posthuma of Snymans Inc.
THIRD
RESPONDENT:
A
Goldberg of Goldberg Attorneys
[1]
See
Head
of Department of Education v Mofokeng & Others
(2015) 36 ILJ 2802 (LAC) at 2812, para [32].
[2]
See
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
(2007) 28
ILJ
2405 (CC) at 2427-8:
[61]
There is nothing in the constitutional and statutory scheme that
suggests that, in determining the fairness of a dismissal,
a
commissioner must approach the matter from the perspective of the
employer. H All the indications are to the contrary. A plain
reading
of all the relevant provisions compels the conclusion that the
commissioner is to determine the dismissal dispute as
an impartial
adjudicator. Article 8 of the International Labour Organization
Convention on Termination of Employment 158 of 1982
(ILO convention)
requires the same. Any suggestion by the Supreme Court of
Appeal that the deferential approach is rooted
in the prescripts of
the LRA cannot be sustained.