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[2019] ZALCCT 33
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Jacobs v Commission for Conciliation, Mediation and Arbitration and Others (C502/2017) [2019] ZALCCT 33 (16 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case no:
C502/2017
In the matter between:
RODNEY BRUCE
JACOBS Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
ZOLA
MADOTYENI Second
Respondent
SUPERCARE
SERVICES GROUPS (PTY) LTD Third
Respondent
Date
heard: 15 October 2019
Delivered:
16 October 2019
JUDGMENT
CONRADIE, AJ
[1]
In this matter the applicant (the employee) seeks to review the award
of the second respondent (the
arbitrator) handed down on 28 July
2017.
[2]
The third respondent (employer) is Supercare Services Groups (Pty)
Ltd.
[3]
The employee represented himself in this matter which is unopposed.
[4]
Understandably, when an employee represents himself in this court, he
or she is normally
not familiar with the procedures which need to be
followed in order to ensure that their case is ready to be heard and
properly
presented. Bearing this in mind I have given the employee
substantial latitude when he appeared before me to present his case.
[5]
As stated above, the arbitration award in this matter was handed down
on 28 July 2017.
Shortly thereafter, on 11 August 2017, the
employee applied to this court for a case number. The case
number was allocated
the same day.
[6]
Thereafter the employee did not launch his review application until
21 May 2018. Nowhere
in his founding affidavit does the employee
state his grounds of review other than to refer to an attached
handwritten statement
in which he states the following:
“
I,
Rodney Bruce Jacobs, state that I was working on construction and at
Don’t Waste Ltd at the time. At the time I was to
get to the
labour court ant I couldn’t get off days to do eny ting
becourse I hade to work for my family. I really need to
get my name
clear and finelise this matter because it is japodising my other
work. I still have all my documants but I could not
get the CD
recording pleas; understand”
[sic].
[7]
On 29 June 2018 the employee filed the record in terms of Rule 7A(6).
[8]
The matter was then set down to be heard on 28 November 2018. The
employee did not
however arrive and the matter was struck from the
roll by Steenkamp J.
[9]
It appears from the documentary record filed by the employee that the
CCMA lost the
digital recording of the arbitration proceedings. The
CCMA however made the arbitrator available to reconstruct the record
if required.
This invitation has not been taken up by the employee.
[10]
At the hearing of the matter I explained to the employee that he
needed to decide if he was willing
and able to proceed without having
been able to transcribe the digital recording. I indicated to him
that if he needed to reconstruct
the record, he needed to indicate
that to me, alternatively if he wished he could proceed to argue the
review without the record.
The employee elected to proceed
without the record.
[11]
I pointed out to the employee that his review application was
substantially late but that I was prepared
to condone any
non-compliance with the time periods of this court in the interests
of giving him an opportunity to have this matter
heard.
[12]
I also pointed out to the employee that no grounds of review were
advanced in his founding affidavit,
as mentioned above, but that I
would nonetheless allow him to make oral submissions.
[13]
The employee accepted this opportunity and in his oral submissions he
largely repeated the argument
which he put up at the CCMA. This
can be summarised as follows:
13.1
His dismissal was unfair in that he had no idea of the warnings that
he did not sign and which the witnesses
of the employer sought to
ascribe to him.
13.2. He
blamed his late-coming on his dire financial situation which he
argued was caused by the company. As his working
hours were reduced
for a brief period at some point in time, he claimed that the
employer had ruined him to the point that he was
unable to buy a
train ticket because he only had enough money to just cover his
debts. As a result, he boarded trains illegally
and was often
arrested and taken to Bellville police station.
13.3. The
final written warning number 2728, which was issued against him, was
set side by a settlement agreement and
there was therefore no final
written warning against him at the time of his last transgression.
[14]
The above submissions are not grounds of review but rather an
expression of the employee’s
unhappiness with the decision
which the arbitrator reached.
[15]
Even though no basis was laid for the review, I have considered the
award and can find no basis
for setting it aside. What is clear from
the award and the record filed in this matter is the following:
15.1. Soon
after the employee joined the employer, he started arriving late for
work. This was accompanied by the problem
of him also failing to
report his whereabouts or lateness to management.
15.2. While
the employee’s shifts started at 09h00 and ended at 17h00, the
employee would normally arrive between
13h00 and 15h00.
15.3. The
employee was issued with warnings so that the employer could monitor
his persistent lateness and take appropriate
action whenever
necessary.
15.4. The
employee acknowledged receipt of some of the warnings which contained
his signature but rejected those that
he had refused to sign. Where
he refused to sign a warning, the supervisor signed as a witness.
15.5. On 1
April 2017 the employee arrived five hours late for work and the next
day he was three hours late. At this
stage he was already under final
written warning with reference number 2729.
15.6. The
employer noticed that a final written warning under reference number
2725, which was previously issued to
the employee, had disappeared.
This warning was replaced with another final written warning so that
there was a record of
the final written warning (warning 2728). This
warning was subsequently withdrawn by the company as part of a
settlement with the
employee at the CCMA.
15.7. Between
March and April 2017, the employee arrived late for work on more than
12 successive occasions. On these
occasions he was late by between
three and five hours.
15.8. It was
discovered at the employee’s disciplinary hearing that the
employee was in possession of the final
written warning 2725 which
had disappeared.
15.9. In
light of the employee’s long list of warnings, including
various final written warnings issued to him,
it was clear to the
company that the employee’s behaviour would not change. He was
accordingly dismissed.
15.10. The employee did
not dispute the reasons advanced for his dismissal. The
employee rather sought to blame the employer
for his continuous late
coming.
15.11. There is no merit
in the employee’s argument that the employer was to blame for
his tardiness or that the employer
was obliged to transfer the
employee to a site closer to his home.
15.12. The employee’s
persistent late coming disrupted the employer’s operations and
threatened their contract with
their client.
[16]
As stated above, the evidence of the company was not rebutted at the
arbitration. In my
view there is no basis for this court to
interfere with the decision of the arbitrator.
Order
In the circumstances I
make the following order:
1.The employee’s
non-compliance with the rules of this court are condoned.
2. The employee’s
review application is dismissed.
3. As
the application was not opposed, there is no order as to costs.
BN Conradie
____________
Acting
Judge of the Labour Court
Appearances:
Applicant:
In person
Respondent: No appearance