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[2019] ZALCJHB 107
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Medi Logistics (Pty) Ltd v Ntsoane NO and Others (JR725/17) [2019] ZALCJHB 107 (22 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO. JR725/17
In
the matter between
MEDI
LOGISTICS (PTY)
LTD
Applicant
and
DIALE
NTSOANE
N.O
First Respondent
COMMISSION
FOR CONSILIATION MEDIATION
AND
ARBITRATION
Second Respondent
CHRISTIAAN
JOHANNES DE-WET
Third Respondent
Heard:
11 January 2019
Delivered:
22 May 2019
JUDGMENT
NTSHEBE,
AJ
[1]
This
is a review application in terms of Section 145 of the Labour
Relations Act
[1]
(LRA) for an
order reviewing and setting aside the arbitration award issued by the
first respondent in favour of the third respondent
(De-Wet). The
Applicant seeks an order that the award be replaced with an order
that the dismissal of De-Wet was for a fair reason,
alternatively
remitting the matter to the second respondent for a proper
determination before a commissioner other than the first
respondent.
Background
facts
[2]
De-Wet was employed by Medi Logistics as an E-Scripting Roll-Out
consultant
on a fixed-term contract from 1 September 2015 until 29
February 2016. E-Scripting is an electronic system wherein a medical
doctor
can issue and upload medical script for a patient online and
in real time. This is aimed at ensuring that medicine is gathered and
packaged for the patient to be collected or delivered without the
patient having to visit the retail pharmacy. The fixed term contract
was then renewed for a further period of six months.
[3]
The applicant states that it started noticing that De-Wet was not
visiting
as many doctors as he used to before. As a result, the
applicant studied the vehicle tracker reports of De-Wet’s
company
issued vehicle.
[4]
The reports showed that De-Wet was visiting his home at number 827
Vry
Street at times when he was supposed to be working and would
spend excessive periods of time there. He did so without any
authorisation.
[5]
As a result, De-Wet was charged on 27 May 2016 with gross dishonesty
in
that he went home during working hours during 1 February 2016 to
17 May 2016. This resulted in the company paying him a salary for
time spent at home when he did not perform his duties and
responsibilities.
[6]
In the disciplinary hearing, De-Wet pleaded guilty to the charge and
his
employment was summarily terminated on 1 June 2016. He thereafter
referred an unfair dismissal dispute to the second respondent
which
dispute was arbitrated by the first respondent.
[7]
The arbitrator issued an award in which he found that De-Wet’s
dismissal was unfair
and ordered his reinstatement as relief. He
further ordered that De-wet be paid compensation in the amount of
R108, 000.00 (one
hundred and eight thousand rand) which was
compensation from the date of dismissal to date of the hearing.
[8]
Unhappy with the award, the applicant instituted this review
application. The first ground
of review is that the commissioner
failed to resolve material disputes of fact. It is stated that the
arbitrator ignored De-wet’s
evidence which was contradictory to
what he had stated during the disciplinary hearing when he pleaded
guilty. In the disciplinary
hearing he had pleaded guilty for the
fact that he had gone home at number 827 Vry Street. However, during
the arbitration, he
denied that number 827 Vry Street was his home
address. Instead he stated that these were the doctors’
premises.
[9]
In assessing this ground of review, regard must be had to the
evidence that was before the
arbitrator. I am of the view that
whether or not the said address was De Wet’s home address is
immaterial. This is because
De Wet was expected to see between 10 and
15 doctors per day and in terms of his version, he did. There was no
evidence before
the arbitrator that he did not visit the doctors.
Furthermore, the evidence before the arbitrator was that there was no
policy
regulating the times when lunch should be taken. What is clear
is that De Wet almost regulated his time according to his schedule
and daily targets. There was nothing precluding him not to go home
during working hours and how much time he should spend at home
during
the day. Therefore, he could not have been guilty of the charge. As a
result, this ground for review is dismissed.
[10]
Another
ground for review is that the arbitrator refused the applicant’s
application for the matter to stand down for 60 minutes
to allow a
witness to come and testify on a point which it did not anticipate.
The point related to the De-Wet’s defence
that he was at home
during working hours as he needed time to prepare for the following
day’s work. This witness was going
to dispute such evidence.
The arbitrator refused the applicant an opportunity to call the
witness and insisted that the matter
needed to be finalised. However,
the arbitrator in his award found that the third respondent’s
defence regarding the preparation
at home was possible and should
therefore be issued with a warning for time keeping. This constituted
an error in the conduct of
proceedings by the arbitrator. Clearly the
applicant had not anticipated that the De-Wet would change tact at
the CCMA. No prejudice
would have been suffered by De-Wet in standing
the matter down for an hour to allow the witness to come and testify.
For the arbitrator
to refuse a party an opportunity to deal with
something crucial and proceed to find against that party on the
aspect he refused
to allow them an opportunity to lead evidence,
constitutes a reviewable irregularity.
[2]
Therefore, on that basis, the arbitration award falls to be reviewed
and set aside. Ordinarily, this finding would have necessitated
the
matter being remitted back to the CCMA for hearing
de
novo
.
However, I do not believe that such is necessary under the
circumstances. This is so because I have also had regard to another
ground of review dealt with below.
[11]
Another ground for review is that the arbitrator reinstated De-Wet in
circumstances where, as at the dismissal
date, 1 June 2016, his fixed
term contract was about to come to an end. His fixed term contract
had been extended from March 2016
to 31 July 2016. No evidence was
led to indicate that his fixed term contract would have been
extended. The arbitrator on the other
hand reinstated De-Wet and
ordered compensation in the amount of R108,000.00 equivalent to nine
months remuneration.
[12]
In the
circumstances, it is my view that the relief awarded to De-Wet is
neither just nor equitable in that it is in excess of the
period
which remained on his fixed term contract which was two months. He
was earning R12,000.00 as at the date of his dismissal.
In
Tshongweni
v Ekurhuleni Metropolitan Municipality
[3]
the applicant was engaged on
a fixed term, and that as at the date of his dismissal, the contract
had some nine months to run.
The court, per Van Niekerk J, held that
an award of compensation equivalent to what the applicant would have
earned had he remained
employed for the full period of five years was
appropriate.
[13]
There is no legal basis for the arbitrator to have reinstated De Wet.
Under the circumstances, he should
have awarded compensation for the
two remaining months in the contract of employment, i.e June and July
2016.
[14]
In the premises, I make the following orders:
Order
1. The
arbitration award is reviewed and set aside and replaced with an
order that De Wet be compensated for the
two remaining months in the
contract of employment, that is, June and July 2016; and
2.
There is no order as to costs.
__________________________
T. Ntshebe
Acting
Judge of the Labour Court of South Africa
[1]
Act
66 of 1995 as amended.
[2]
See:
Dimbaza
Foundries Ltd vs CCMA and Others
(1999) 20 ILJ 1163 (LC).
[3]
[2010] 10 BLLR 1105
(LC)