Glencore (Proprietary) Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR1251/2014) [2018] ZALCJHB 289; (2018) 39 ILJ 2536 (LC) (11 September 2018)

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[2018] ZALCJHB 289
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Glencore (Proprietary) Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR1251/2014) [2018] ZALCJHB 289; (2018) 39 ILJ 2536 (LC) (11 September 2018)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 1251/2014
In
the matter between:
GLENCORE
(PROPRIETARY)
LIMITED
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
ELIAS LEKGWATHI
N.O
Second
Respondent
NATIONAL
UNION OF
MINEWORKERS
Third
Respondent
SONNYBOY
MANYONI
Fourth
Respondent
Heard:
17 May 2018
Delivered:
11 September 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The applicant, (Glencore) seeks
an order reviewing and setting aside the arbitration award issued by
the second respondent (Commissioner)
dated 3 April 2014. In
the award, which followed upon a referral of an alleged unfair
dismissal dispute by the third
respondent (NUM) on behalf of its
member and fourth respondent (Manyoni), the Commissioner found that
the dismissal of Manyoni
was unfair, and  ordered his
retrospective reinstatement, coupled with an amount of back-pay
equivalent to three months’
salary. The review application is
opposed by NUM.
[2]
The facts leading to the
dispute are fairly common cause;
2.1
Manyoni was employed as a
Composite Operator with effect from March 1998 and was dismissed
on 29 June 2013 following
upon his absence from duty
between 30 June 2013 and 16 July 2013. Prior to
his absence, he had requested to
take leave for the same period that
he was absent.  His request was declined based on Glencore’s
operational requirements
since another Operator had also requested
and was granted leave for the same period.
2.2
In his absence, Glencore
invoked clause 4.4 of its Disciplinary Policy and Procedure
[1]
,
in terms of which if an employee was absent from the workplace for
more than six consecutive shifts/days and had not reported
the
absence or notified a supervisor of the reasons for absence, he/she
would be deemed as having deserted.
2.3
Upon his return, Manyoni was
afforded an appeal hearing, which sat on 12 September 2013.
At the appeal he had submitted
two medical certificates to justify
his absence for the periods 30 June 2013 to 3 July 2013,
and 8 July 2013
to 11 July 2013. He had further
stated that he had asked his colleague, Mofokeng to pass a message to
his supervisor
that he was unwell, and that he had faxed through
copies of his medical certificates.
2.4
Glencore was not satisfied that
Manyoni was able to show that he had complied with the provisions of
the policy by attempting to
notify his supervisor of his whereabouts.
It was not satisfied with his reasons for his absence, and had
accordingly confirmed
the dismissal.
The
arbitration proceedings and award:
[3]
Attempts at conciliation having
failed, the dispute came before the Commissioner for arbitration. Mr
Bernard Maripe, who was Manyoni’s
supervisor, testified that he
was not informed of the latter’s absence, and the reasons
thereof. In the past, Manyoni had
always complied with the rules
related to absenteeism before, by calling him and informing him that
he was either going to see
a doctor, or that he was from a doctor,
and/or would also send or bring in copies of his medical certificates
to justify his absence.
[4]
Prior to taking unauthorised
leave of absence, Manyoni had informed Maripe that he wanted to take
leave as his son was due to attend
a ‘circumcision school’.
When Maripe informed him that he could not take leave at the time,
Manyoni had nonetheless
insisted that he would. Maripe had also
during his absence, enquired from his colleagues whether anyone had
knowledge of his whereabouts
and none of them had. In accordance with
the policy, once the six continuous days/shift had passed without
Manyoni reporting for
duty, he was then regarded as having deserted
[5]
Manyoni’s testimony was
that he had reported his absence to a fellow employee, and had during
his sick leave, went home. He
had conceded that his initial request
to take leave was declined. During his last shift at work he fell
ill, but contended that
he had made attempts to fax through a copy of
his medical certificate to another employee, Siwe at the premises. He
had consulted
with a medical doctor during his absence and he could
not tell the nature of his ailment. Manyoni denied that he had
informed Maripe
that his son was due to attend a ‘circumcision
school’.
[6]
Manyoni’s colleague,
Kopano Mofokeng had testified that Manyoni had telephonically
informed him that he was unwell and asked
him to pass the message to
the supervisor, which he had done. Manyoni had further informed him
that he would fax through a copy
of his medical certificate.
[7]
The Commissioner having
considered the Commission for Conciliation Mediation and Arbitration
(CCMA) Guidelines and the provisions
of sections 138(1) and 138(6) of
the LRA concluded that;
7.1
Manyoni had submitted copies of
his medical certificate on the date of the appeal hearing that
covered the period of absence, but
was dismissed before Glencore had
made any attempts whether via telephone or telegram, to contact him
to return to work, unlike
in other instances in the past, where
another employee who was absent was contacted.
7.2
There was no evidence to
suggest that Manyoni had abused his sick leave, and Glencore’s
approach that an employer could dismiss
an employee after six days of
absence on the basis of being deemed as having absconded was legally
incorrect, as an employee could
only be deemed to have deserted if it
is proven that he/she had formed an intention not to resume work. In
this case, there was
no evidence that Manyoni had formed an intention
not to return to work.
7.3
Manyoni’s version that he
was not feeling well and had consulted with his doctor should be
accepted. In dismissing Manyoni,
Glencore followed incorrect
principles as contained in its code, and the dismissal was
inappropriate.
7.4
Manyoni was last counselled in
2008 after being absent for more than five days, and had no valid
warnings for the same offence during
the material period. In the
light of his long service and the high unemployment rate, the
dismissal was substantively unfair.
The
grounds of review:
[8]
Glencore seeks to have the
arbitration award reviewed and set aside on the basis that the
Commissioner committed certain material
irregularities in the conduct
of the arbitration proceedings, and reached an outcome that was not
properly founded on the material
placed before him. It was further
submitted that the Commissioner committed an irregularity by;
8.1
Finding that Glencore had not
challenged the veracity of the medical certificates.
8.2
Finding that Glencore’s
desertion policy was wrong and that the company had to show that
Manyoni had intention to desert and
not return to work, and accepting
Manyoni’s version that he had not been feeling well, and that
it was probable that he had
consulted with his doctor when he was not
aware of the nature of his ailment.
8.3
Attaching relevance to how
Glencore had dealt with similar incidents with another employee, when
that issue was not tested with
its witnesses.
8.4
Finding that Glencore failed to
contact Manyoni to establish his whereabouts or the reasons for his
absence prior to his dismissal.
[9]
The submissions made on behalf
of Manyoni and NUM were as follows;
9.1
In terms of the provisions of
section 22 of the Basic Conditions of Employment Act (The BCEA)
[2]
,
an employee is entitled to sick leave. All that was required was for
the employee to produce copies of medical certificates to
justify
absence. Manyoni had complied with these requirements.
9.2
Insofar as compliance with
Glencore’s policies was concerned, Manyoni upon failing to
contact Maripe had made contact with
a fellow employee, Mofokeng, who
had further confirmed having passed a message to Maripe. Despite the
failure to directly contact
Maripe, Manyoni’s efforts to
contact him were sufficient for the purposes of compliance with the
policies.
9.3
Glencore’s reliance on
the decision in
Mgobhozi v
Naidoo
[3]
,
was misplaced in that the
judgment did not state that employers must reject copies of medical
certificates on the basis that such
certificates are available upon a
payment of an appropriate fee. There was further no evidence to
suggest that the legitimacy of
the medical certificates was
challenged, and if there was a concern, there was nothing that
prevented Glencore from having Manyoni
assessed by its own medical
doctors.
9.4
The Commissioner did not commit
any irregularity by accepting Manyoni’s version that he was
sick despite Glencore’s
dissatisfaction with his explanation of
the nature of his ailment;
9.5
The Commissioner’s
conclusions that Glencore had failed to prove that Manyoni had
intentions to desert his post was reasonable.
9.6
The Commissioner’s
findings in regard to inconsistency, and reliance on  a letter
produced by Manyoni (from Ms Makgamatha)
cannot be criticised as
Glencore did not object to its production. This letter demonstrated
that other employees were in the past,
telephonically contacted
during their absence.
Evaluation:
[10]
It is trite that the test on
review is based on reasonableness. The primary question to be asked
by the reviewing court is whether
the decision made by the
commissioner is one that a reasonable decision-maker could not have
made based on the material placed
before him or her. A reviewing
court as stated in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others,
must ascertain whether the
arbitrator considered the principal issue before him/her, evaluated
the facts presented at the hearing
and came to a conclusion which was
reasonable
[4]
.
[11]
Central to the review test as
further explained in
Department
of Education v Mofokeng & others
[5]
,
is that
the
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity, and that before such an irregularity will result in the
setting aside of the award, it must in addition reveal
a
misconception of the true enquiry or result in an unreasonable
outcome
[6]
.
[12]
It further needs to be
re-emphasised as it has repeatedly been done in this Court, that the
starting point for Commissioners when
determining the fairness of a
dismissal for misconduct, is a consideration of the provisions of
Item 7, Schedule 8 of the Code
of Good Practice: Misconduct
[7]
,
which must be read and applied in tandem with those of the CCMA
Guidelines, Misconduct Arbitrations.
[13]
In this case, it was not in
dispute that absenteeism in the workplace was governed by clause 4.4
of Glencore’s Disciplinary
Policy and Procedure. This was the
basis upon which Manyoni’s dismissal was effected. It follows
in determining the dispute
before him, the Commissioner was called
upon to consider whether the requirements of clause 4.4 of Glencore’s
Policy were
met. These were whether Manyoni was absent from his place
of employment; whether he had notified his supervisor of his
whereabouts
during his absence; whether he was away from work for a
continuous period of six shifts/days; whether he should have been
deemed
to have deserted in terms of the Policy; and whether he had
shown good cause for his absenteeism.
[14]
Having had regard to the award,
the conclusions reached therein, the parties’ submissions and
the transcribed record of proceedings,
I have no hesitation in
concluding that the Commissioner clearly misconceived the nature of
the enquiry and/or undertook the enquiry
in an incorrect manner. He
further failed to have regard to or evaluate certain material
evidence before him, and essentially arrived
at an unreasonable
outcome. These irregularities invariably render the award reviewable.
The basis of my conclusions are as below.
[15]
It was common cause that
Manyoni was absent from duty between 30 June and 15 July 2013.
His contention was that he
was sick during his absence. That
contention in my view ought to have been tested and assessed against
the undisputed fact that
he had previously requested leave for the
same period, which request was declined for reasons of Glencore’s
operational requirements.
[16]
Maripe’s contention that
Manyoni had stated that he intended to take leave in order to attend
to his son as he was going to
‘circumcision school’, and
that he would take leave in any event was disputed. It is significant
to note that the Commissioner
completely ignored that evidence
[8]
.
To the extent that there were contrasting versions as to whether
Manyoni had indeed said that he was wanted to take leave, a duty

rested upon the Commissioner to have resolved that dispute by an
assessment of its reliability, probabilities, and the credibility
of
witnesses as required in terms of Clause 56 of the CCMA
Guidelines
[9]
.
The Commissioner despite having made reference to these guidelines
clearly paid lip service to them.  It was important for
the
Commissioner to have resolved that  factual dispute, for the
purposes of determining the probabilities of Manyoni’s
version
that he was sick, and his further version that it was pure
coincidence that he fell sick at the same time or period that
he had
sought and was declined leave. For the Commissioner to therefore have
merely accepted that Manyoni was sick based on his
copies of medical
certificates, when the evidence suggested that he was bent on taking
leave despite it having been declined is
indeed extraordinary.
[17]
The next issue for
consideration is whether Manyoni had informed his supervisor of his
whereabouts in the light of his absence for
a continuous period of
six shifts/days. It was not in dispute that Manyoni was well aware of
this requirement, as on the uncontested
of Maripe, he had in the past
called in to report his absence and given reasons.
[18]
Manyoni had under
cross-examination conceded that he had not indeed contacted Maripe,
and his excuse was that he did not have his
telephone number. It is
inexplicable that Manyoni could suddenly not have had Maripe’s
telephone contact number when there
was a need to call him at that
stage. Sadly, the Commissioner failed to take this factor into
account.
[19]
There was a dispute as to
whether Manyoni’s message that he was not well was conveyed by
Mofokeng to Maripe. This issue was
important in that on Maripe’s
uncontested version, an employee ought to report absence and reasons
thereof before the next
shift commenced. Maripe had not heard from
Manyoni on 30 June 2013. He did not know of his
whereabouts, and had enquired
from his colleagues without success.
During Maripe’s cross-examination, it was never put to him that
it would be Manyoni’s
case that Mofokeng had passed his
messages to him. It is trite that there is an obligation on a party
to put a version to a witness
prior to a conclusion being made on the
veracity of that version
[10]
.
At most, all that Maripe was asked was whether he was sure that he
did not receive ‘
anything’
of the whereabout of Manyoni
[11]
,
and his  answer was that he had not. He had repeatedly stated
that he had asked his colleagues about his whereabouts and
no one
knew, and not once was he challenged on that version. The evidence
that Mofokeng had passed a message only came about when
Manyoni was
cross-examined or when Mofokeng testified to that effect. In fact,
during his examination in chief, Manyoni was asked
whether he had
reported to ‘
someone’
about his whereabouts during the period of absence, and his response
was that he did report to ‘
someone’
[12]
.
He never indicated in his evidence in chief who that ‘
someone’
was, or when that individual was contacted, or whether he had
received feedback from that individual as to whether his message
had
reached Maripe.
[20]
It nonetheless gets worse for
Manyoni in that even if Mofokeng’s version, which was not put
to Maripe in his cross-examination
was to be believed, that version
in any event was vague in the extreme. He had testified that Manyoni
had called him at 06h30 in
the morning and asked him to report that
he was not feeling well. Under cross-examination, Mofokeng could
however not recall the
day or date when Manyoni had called him, but
contended that  they were supposed to be on the morning shift
together.
[21]
The contention therefore that
Maripe was contacted through Mofokeng, and that this was sufficient
for the purposes of notification
for Manyoni’s absence in
compliance with the policy is unsustainable. This is so especially in
circumstances where the requirement
is to contact a supervisor, and
not just an ordinary fellow employee, and further where Manyoni had
in the past contacted Maripe
telephonically.
[22]
Considering that the
Commissioner had accepted that Manyoni had reported his absence in
circumstances where a version was not put
to Maripe that contact was
made through Mofokeng; or when on Manyoni’s own version it was
not clear as to who and when ‘
someone’
was contacted to pass the message, or when Mofokeng himself could not
provide specifics about that contact with Manyoni, it should
be
concluded that the Commissioner committed
a
reviewable irregularity
in
the conduct of proceedings, which had deprived Glencore of a fair
trial of the issues.
[23]
Manyoni had further testified
that he had made attempts to fax through a copy of his medical
certificate. It however turned out
that the individual (Siwe) to whom
the copies were faxed had long been dismissed by Glencore. The
Commissioner nonetheless concluded
that it was sufficient if copies
of the medical certificates were submitted at the appeal hearing.
[24]
The difficulty with the
Commissioner’s complete reliance on the submission of copies of
medical certificates at the appeal
hearing or when an employee
returns after prolonged absence, is that it countenances a view that
it is acceptable to simply stay
away from work for prolonged periods
without informing your employer of your whereabouts, as long as you
can produce a medical
certificate upon your return. This approach is
clearly inimical to the operational requirements of any employer, and
it is irrelevant
whether the authenticity of the medical certificates
is challenged or not. The issue is whether the employer/supervisor
was notified
of the absence on time for the purposes of the deeming
provisions.
[25]
Even if the copies as submitted
by Manyoni were to be accepted as justification for his prolonged
absence, these indicated that
he was seen on 30 June 2013,
and was booked off ill until 03 July 2013. A second
certificate indicates that
he was seen on 08 July 2013 and
was booked off until 11 July 2013. It was common cause that
Manyoni came back
on 16 July 2013. He could not account for
his absence during 4 – 7 and 12 and 15 July 2013
other than
to say that he was taking treatment. In my view, once
Manyoni could not account for the full days he was not at work, there
was
cause to believe that he had not shown good cause for his
absence.
[26]
A further criticism of the
Commissioner’s findings is that he  placed emphasis on the
provisions of the BCEA. This is
in circumstances where Manyoni’s
dismissal followed upon the non-compliance with Glencore’s
Policy. The issue of whether
Manyoni was entitled to sick leave as
per the provisions of the BCEA was irrelevant to the determination of
the primary issue,
which was whether factors existed in terms of the
Policy for Glencore to have deemed Manyoni as having deserted. It
follows that
the Commissioner’s interpretation of the BCEA
relating to sick leave, and his conclusions that employees were
entitled to
be absent for more than two days and thereafter produce a
medical certificate; or that there was no evidence of sick leave
abuse
were issues irrelevant to the primary enquiry.
[27]
As if the above was not enough,
the Commissioner’s went on to criticise Glencore’s own
interpretation of the Policy,
stating that its approach was ‘legally
incorrect’. The Commissioner again failed to appreciate that he
was not called
upon to determine whether Glencore’s
interpretation of its own policy was ‘legally correct’ or
not. What he was
required to determine was whether Manyoni had
complied with the policy, and whether factors existed for him to have
been deemed
as having deserted in accordance with that policy.
[28]
It further follows that to the
extent that the Commissioner had regard to the provisions of the BCEA
and concluded that desertion
was only established if it was proven
that an employee had formed an intention not to resume work, he had
misconceived the nature
of the enquiry, particularly in the light of
the deeming provisions of the Policy, and thus committed a reviewable
irregularity.
Even if for some reason, the Commissioner believed that
he was on the correct path, there is nothing from the transcribed
record
that indicates that any evidence was placed before him,
demonstrating that intention to return or not to return was proved or
disproved.
Again, the parties, or to be precise, Glencore, was
clearly deprived of a fair trial of the issues
[13]
.
[29]
Confronted with similar deeming
provisions in an employer’s policy in regard to absenteeism,
this Court in
Impact Ltd
(Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for the
Wood and Paper Sector and Others
[14]
has since held that;
“
In
the first place, in terms of the employer’s policy whereby it
infers an intention to desert from the employee’s unreported

unauthorised absence for a period exceeding five days, the Applicant
is not required to prove an actual intention to desert by

establishing “that the employee intimated expressly or by
implication that he had no intention to return to work” as

ruled by the Commissioner. In terms of the employer’s practice,
the employee’s intention to desert is, at least on
a
prima
facie
basis and in the absence of evidence to the contrary, inferred merely
from employee’s unauthorised uncommunicated absence
for a
period exceeding five days. In
Tubatse
Chrome (Pty)Ltd v MEIBC and Others
,
I took the view that this was not an unreasonable inference to draw
from the employee’s extended unexplained absence, my
view there
being that it was not unfair to dismiss the employee in these
circumstances on the assumption that he did not intend
returning to
work, provided the dismissal was not final and did not close the door
to the possibility of the dismissal being reversed
upon the employee,
should he return, being able to rebut the inference of desertion
which dictated the dismissal by providing a
satisfactory explanation
for his absence and failure to inform his employer thereof. Should he
return to work, fairness requires
that he be afforded a fair
opportunity to do so”
[15]
(footnotes omitted)
[30]
I align myself with the views
expressed above and agree that in circumstances where an employer in
terms of its own disciplinary
code/policy and procedure is permitted
to deem an employee to have deserted after a certain period of
unexplained absence, there
is no requirement for that employer to
establish an intention to desert on the part of the employee. Upon
the employee’s
return and an appeal process granted in terms of
the policy, the onus is on the employee to provide satisfactory
justification
for the absence. This entails placing factors before
the appeal hearing as required in terms of clause 4.4.3 of Glencore
Disciplinary
Code, to justify why a dismissal on the grounds of
desertion ought not to be confirmed.
[31]
The issue of whether there was
an obligation on Glencore to make attempts to contact Manyoni seems
to have persuaded the Commissioner
in finding that the dismissal was
substantively unfair. This was notwithstanding the fact that in terms
of clause 4.4.3 of the
Policy, the onus was upon Manyoni to justify
his prolonged absence. I appreciate that in
Grootboom
v National Prosecuting Authority and Another
[16]
,
the approach,
albeit
expressed
obiter
,
seems to suggest that there is an obligation on an employer to
provide some evidence that an absentee employee was contacted.
That
approach was long stated in
South
African Broadcasting Authority v CCMA
[17]
,
where
it was held that an employer who has the means of communicating with
the absent employee must do so.
It
is my view that even if there is such a requirement or obligation on
the employer, it does not absolve that employee from his/her

obligations to contact the employer, especially where the company’s
policy explicitly so requires.
[32]
Thus,
where
desertion is regulated by the employer’s disciplinary code as
in this case, or some other statute, the principles set
out in
Grootboom v National
Prosecuting Authority and Another
[18]
by this Court in my view ought to find
application, and the employee must show good cause by providing a
reasonable and satisfactory
explanation for his or her absence
without authority, irrespective of whether the employer is required
to attempt communication
with that employee during his or her absence
or not. The employer in considering whether or not good cause has
been shown must
in addition, take into account considerations of
fairness and justice, and further consider whether or not the
unauthorized absence
was wilful on the part of the employee.
[33]
A consideration of the
requirements of fairness in such circumstances would include whether
the explanation is acceptable, and if
not, whether a confirmation of
a dismissal is appropriate.
In
considering whether  a dismissal was fair, the principles set
out in
Sidumo
[19]
remains paramount.
[34]
In this case, the Commissioner
took into account Manyoni’s employment record, his long service
and the high unemployment rate
in the country. Even then, these
considerations were to be taken into account together with all other
relevant factors in this
case, which were that Manyoni had not shown
good cause for his prolonged absence in that he was absent from work
for prolonged
periods and in circumstances where he was initially
refused leave due to Glencore’s operational requirements. The
invariable
conclusion that his absence in such circumstances was
wilful is inescapable. There was no evidence placed before the
Commissioner
as to the impact of Manyoni’s absence on its
operational requirements, but even then, to reinstate him when he had
scant
regard to the employer’s policies, when he had shown no
contrition, and when the basis of his challenge to his dismissal was

unsustainable, cannot in my view be appropriate.
[35]
To conclude, the Commissioner
misconceived the nature of the enquiry he was called upon to
undertake, completely ignored relevant
evidence, failed to properly
apply his mind to material issues at hand and committed various other
irregularities in the conduct
of proceedings. These irregularities
deprived Glencore of an opportunity of a fair trial of issues. In the
end, the Commissioner
arrived at an outcome that falls outside
the band of reasonableness.
[36]
Further having had regard to
the transcribed record of the arbitration proceedings, and the
conclusions reached in this judgment,
no purpose would be served by
remitting this matter to the CCMA, and the Court is in a position to
substitute the Commissioner’s
award. I have further had regard
to the requirements of law and fairness and it is my view that a cost
order is not warranted in
this case.
[37]
Accordingly the following order
is made;
Order:
1.
The arbitration award issued by
the second respondent under case number MP8917-13 dated 3 April 2014
is reviewed, set aside and
substituted with an order that the
dismissal of Mr Sonnyboy Manyoni was fair.
2.
There is no order as to costs
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant: Mr. B Masuku of Mervyn Tabacks INC
For
the 3
rd
and 4
th
Respondents: Gloria Phajane
Instructed
by: Silas Molebaloa Attorneys
[1]
Which reads:
“
4.4 Procedure for Dealing
with Desertion/Extended abscondment
4.4.1 Should an employee be absent
from his/her place of employment without notification to his/her
supervisor of his/her whereabouts
for a continuous period of six
working days/shifts, he/she will be deemed to have deserted and will
be written off as a deserter
4.4.2 An employee whose services have
been terminated on the grounds of desertion and who seeks to resume
his/her employment may
lodge an appeal for consideration of
reinstatement.
4.4.3 The onus rests on the employee
to show good cause why his actions should be condoned…”
[2]
Act 75 of 1997 (as amended)
[3]
[2006] 3 BLLR 242
(LAC)
[4]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 16
[5]
[2015] 1 BLLR 50 (LAC)
[6]
At paragraph 30.
See also
Herholdt v
Nedbank Limited (Congress of South African Trade Unions as amicus
curiae)
2013 (6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA); (2013) 34 ILJ 2795 (SCA) at
paragraph 25
,
where
it was held that;
“
In summary, the position
regarding the review of CCMA awards is this: For a defect in the
conduct of the proceedings to amount
to a gross irregularity as
contemplated by s 145(2) (a) (ii) …the Arbitrator must have
misconceived the nature of the
inquiry or arrived at an unreasonable
result.  A result will only be unreasonable if it is one that a
reasonable Arbitrator
could not reach on all the material that was
before the Arbitrator.  Material errors of fact, are not in and
of themselves
sufficient for an award to be set aside, but are only
of any consequence if their effect is to render the outcome
unreasonable”
[7]
Which provides:
7.
Guidelines in
cases of dismissal for misconduct
.—Any
person who is determining whether a dismissal for misconduct is
unfair should consider—
a)
whether
or not the employee contravened a rule or standard regulating
conduct in, or of relevance to, the work-place; and
b)
if a
rule or standard was contravened, whether or not—
(i) the rule was a valid or
reasonable rule or standard;
(ii) the employee was aware, or could
reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been
consistently applied by the employer; and
(iv) dismissal with an appropriate
sanction for the contravention of the rule or standard.
[8]
See
Gold
Fields Mining SA Ltd (Kloof Gold Mine) v CCMA and Others
at paragraph 21,
where it was held that;
“
Where the arbitrator fails to
have regard to the material facts it is likely that he or she will
fail to arrive at a reasonable
decision. Where the arbitrator fails
to follow proper process he or she may produce an unreasonable
outcome (see Minister of
Health and Another v New Clicks South
Africa (Pty) Ltd and Others
2006 (2) SA 311
(CC)). But again, this
is considered on the totality of the evidence not on a fragmented,
piecemeal analysis. As soon as it is
done in a piecemeal fashion,
the evaluation of the decision arrived at by the arbitrator assumes
the form of an appeal. A fragmented
analysis rather than a
broad-based evaluation of the totality of the evidence defeats
review as a process.”
[9]
See also
Stellenbosch
Farmers Winery v Martell et cie
2003
(1) SA 11
(SCA) at para 5
[10]
See
SA
Nylon Printers (Pty) Ltd v David
(1998)
2 BLLR 135
(LAC);
ABSA
Brokers (Pty) Ltd v CCMA & others
(JA45/03
of 26 May 2005) at paragraph…., where it was held that;
“
It is an essential part of the
administration of justice that a cross-examiner must put as much of
his case to a witness as concerns
that witness (see Van Tonder v
Killian NO en Ander
(1992) 1 SA 67
(T) at 721). He has not only a
right to cross-examination, but, indeed, also a responsibility to
cross-examine a witness if it
is intended to argue later that the
evidence of the witness should be rejected. The witness’
attention must first be drawn
to a particular point on the basis of
which it is intended to suggest that he is not speaking the truth
and thereafter be afforded
an opportunity of providing an
explanation (see Zwart and Mansell v Snobberie (Cape) (Pty) Ltd 1984
(1) PH F19 (A)). A failure
to cross-examine may, in general, imply
an acceptance of the witness’ testimony...”
[11]
Line 22 at page 86
of the Transcribed record
[12]
Line 15 – 21
of the transcribed record, Page 98 of Index to Record
[13]
See
SABC
v CCMA and Others
(2002) 8
BLLR 693
(LAC) at para 13 where it was held that;
“
It is not desertion when an
employee who is absent from work intends returning to work.
Desertion necessarily entails the employee’s
intention no
longer to return to work. The employer would have to establish this
intention in a fair process.”
[14]
(2013) 34 ILJ 2266 (LC)
[15]
At para 10
[16]
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC); (2014) 35 ILJ 121 (CC) at para 45 where
it was held that;
“
Although one might be tempted
to conclude that, by virtue of having undertaken a scholarship to
the UK, the applicant would, in
all likelihood, have found it
impractical to return to resume his employment if he were recalled,
I find such a conclusion to
be unfounded and speculative in the
absence of any evidence that he was called to take up his duties and
failed to do so. Moreover,
the NPA knew where the applicant was at
all relevant times as it was communicating with him via email. It
made a conscious decision
not to recall but to discharge him. This
fact leads me inexorably to conclude that the finding by both the
Labour Court and the
Labour Appeal Court in this regard is wrong.”
[17]
At para 15, where it was stated that;
“
Where an
employer has an effective means of communicating with an employee
who is absent from work, the employer has an obligation
to give
effect to the
audi
alteram partem
rule before the employer can take the decision to dismiss such an
employee for his absence from work or for his failure to report
for
duty.”
[18]
(2010)
31 ILJ 1875 (LC) ;
[2010] 9 BLLR 949
(LC) at para 56, where
Molahlehi J in dealing with the deeming provisions in section 17 of
the Public Service Act held that;
“
It is clear
in my view that the requirement of good cause in terms of section
17(5(b) of the PSA entails the employee having to
provide a
reasonable explanation for his or her absence without authority. The
duty is thus on the employee to provide the employer
with a
satisfactory explanation as to what were the reasons for being
absent without authorisation. The employer in considering
whether or
not to reinstate the employee has to exercise a discretion given by
section 17(5) (b) of the PSA. In this respect
the decision by the
employer has to be influenced by fairness and justice. In other
words, the employer does not have unfettered
discretion in
determining whether or not to reinstate the employee. The
functionary responsible for considering whether or not
to reinstate
the employee has to apply his or her mind to the submission made by
the employee for the decision to be said to
be reasonable and
lawful. The key factor amongst others, which the employer has to
consider, is whether or not unauthorised absence
was wilful on the
part of the employer.”
[19]
Sidumo and
another v Rustenburg Platinum Mines Ltd & others
(2007)
28 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC) where it was held at
paragraphs 78 - 79 that;
“
In approaching the dismissal
dispute impartially, a commissioner will take into account the
totality of circumstances. He or she
will necessarily take into
account the importance of the rule that had been breached. The
commissioner must of course consider
the reason the employer imposed
the sanction of dismissal, as he or she must take into account the
basis of the employee’s
challenge to the dismissal. There are
other factors that will require consideration. For example, the harm
caused by the employee’s
conduct, whether additional training
and instruction may result in the employee not repeating the
misconduct, the effect of dismissal
on the employee and his or her
long-service record. This is not an exhaustive list.”
And,
“
To sum up. In terms of the
LRA, a commissioner has to determine whether a dismissal is fair or
not. A commissioner is not given
the power to consider afresh what
he or she would do, but simply to decide whether what the employer
did was fair. In arriving
at a decision a commissioner is not
required to defer to the decision of the employer. What is required
is that he or she must
consider all relevant circumstances.”