About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2019
>>
[2019] ZALCCT 32
|
|
First Reality (Krugersdorp) (Pty) Ltd v Arendse and Others (C385/2018) [2019] ZALCCT 32 (24 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA HELD AT CAPE TOWN
Not Reportable
Case
Number:
C385/2018
In
the matter between
FIRST
REALITY (KRUGERSDORP) (PTY) LTD
Applicant
and
JEROME
ARENDSE
First
Respondent
COMMISSIONER
ANTHONY VERHOOG
Second Respondent
COMMISSION FOR
CONCILITION, MEDIATION
AND
ARBITRATION
Third
Respondent
Heard
: 15
October 2019
Delivered
: 24
October 2019
JUDGMENT
CONRADIE
AJ
:
Introduction
[1]
This is an unopposed review application in which the applicant (the
company) seeks
to review the arbitration award handed down by the
second respondent (the arbitrator) under case number WECT4553-18,
dated 22 April
2018.
[2]
I am satisfied that the first respondent (the employee) received the
notice of motion
and founding affidavit as well as all other relevant
documents relating to the application. The employee also
presented himself
at court on the day that the matter was heard.
He was invited to make submissions but elected not to.
Background facts
[3]
The employee was absent from 5 February 2018 until 9 February 2018
without a sick certificate.
[4]
Upon his return to work on 12 February 2018, the employee was issued
with a notice to attend
a disciplinary hearing. The allegation
against the employee was desertion, alternatively absence for a
period of 5 days or longer
without leave and/or a valid reason and/or
notice to employer.
[5]
On 14 February 2018 the employee was informed that he was summarily
dismissed as a result
of being absent without leave and for a valid
reason and for not informing his employer for the period 5 to 9
February 2018.
[6]
The employee referred a dispute to the third respondent (the CCMA)
and the matter was arbitrated
by the arbitrator.
[7]
At the arbitration the company, who was represented by Cape Agri
Employers’ Organisation,
called a director, Mr Chris Hamman, as
its witness.
[8]
The employee represented himself and gave evidence on his own behalf.
[9]
The pertinent evidence before the commissioner can be summarised as
follows:
9.1
The procedure when an employee is absent from work is that the
employee must notify the company’s
management at the time of
the absence and a medical certificate is required.
9.2
The employee did not contact the company about his absence for the
duration of the 5 days and
did not produce a medical certificate.
9.3
The company viewed absence for 5 days as serious misconduct.
According to the company its disciplinary
code stipulated that if
found guilty of this offence it could lead to dismissal.
Evidence was further led that the employee
was aware of this as it
was explained to employees on 8 August 2017 and on 30 October 2017.
9.4
The employee’s explanation for not reporting for work during
the week in question was that
on Saturday 3 February 2018, he was
walking home from his brother-in-law with his wife and 8-year-old son
when he was attacked
by two males and was badly injured. His eyes
were closed following repeated kicks to his face and head. The
employee remained in
bed on Sunday 4 February 2018.
[10]
On Monday 5 February 2018 the employee was still badly affected by
his injuries. (It is in dispute whether
or not the employee, on the
Monday morning, phoned a fellow worker at the farm, Mr Willem
Januarie, to explain to him that he was
in bed as a result of the
attack and informed him that he would be absent from work on Monday 5
February 2018). The employee
remained bed-ridden for the rest
of the week.
[11]
On Monday 5 February and Wednesday 7 February 2018, Mr Hamman went to
the employee’s home to find out
why he was not at work.
However, the employee was not at home.
[12]
The employee returned to work on 12 February 2018 and was told that
he would be subjected to a disciplinary
hearing.
[13]
Mr Hamman testified that:
13.1 the work
relationship between himself and the employee was good over the last
6 months. In fact, in 2017 he chose
the employee and another
colleague to join him on a hunting trip as a token of appreciation
for good performance at work up until
June 2017.
13.2 The
relationship between the company and the employee however changed in
October 2017. This followed on a complaint
that was received from
workers on the farm that the employee and another person who lived on
the farm made a fire under a tarred
anchor pole which held up the
wire fence on the farm. The fence had to be replaced twice and the
other workers were unhappy.
Mr Hamman viewed the matter to be
serious and addressed the situation with the employee and the matter
was referred to the police.
13.3 In
addition to the above incident, although the employee was trained as
a fire fighter at the workplace, in January
2018 he refused to assist
in combatting fires that broke out at the farm after his working
hours.
[14]
After considering the evidence the arbitrator found that the employee
was guilty of unauthorised absence
without notifying the company. The
arbitrator then proceeded to consider whether the sanction of
dismissal was appropriate in the
circumstances. In deciding
this question the arbitrator took the following into account:
14.1 The
applicant had a clean disciplinary record.
14.2 He had
not been disciplined for unauthorised absenteeism prior to the
incident in question.
14.3 He was a
farmworker and belonged to a vulnerable group of workers in the
country who remain marginalised in terms
of working conditions,
income, living conditions and general resources.
14.4 He
worked for more than five years which was considered a substantial
amount of time.
14.5 The
employee’s family lived on the farm and were dependent on his
job.
14.6 Hamman
went to the employee’s home on 5 and 7 February 2018 and did
not find him there.
14.7 No other
attempts were made by the company to locate the employee.
14.8 No-one
else was consulted to show that the company made further attempts (to
locate the employee).
[15]
The arbitrator concluded that dismissal was not appropriate in the
circumstances as he was not convinced
that corrective disciplinary
action could not have remedied the situation. He therefore
found the dismissal to be substantively
unfair. He was however
of the view that the employee’s actions could not go unpunished
and that a final written warning
valid for 12 months from 14 February
2018 needed to be recorded.
Grounds
of review
[16]
The company’s grounds of review, set out in the founding
affidavit of Mr Hamman, have not been set
out in the most elegant
manner, making it difficult to neatly deal with the grounds of
review. In the circumstances and given that
the grounds of review are
not that long, I repeat verbatim the contents of the 6 paragraphs
which purport to contain the grounds
of review and deal with them
accordingly.
Ground 1
[17]
“
The
second respondent
accepted in his analysis of the evidence that the first respondent
had attended two meetings convened by the applicant,
in which the
applicant’s disciplinary rules had been discussed. At one of
the meetings attended by the first respondent,
on 30 October 2017,
the rule relating to unauthorized absence was addressed. I testified
that absence for five days was regarded
as serious misconduct, and
the disciplinary rules provided that this could lead to dismissal if
an employee were to be found guilty
in a disciplinary hearing. I also
referred to the requirement that an employee had to personally notify
management at the time
of the absence. The first respondent did not
comply with these rules. This was accepted by the second respondent.
However, the
second respondent incorrectly found that the first
respondent did not inform the applicant of his absence for four days,
whereas
the evidence clearly showed that the first respondent had
been absent for five days. In paragraph 9 of the second
respondent’s
findings, he correctly stated that “Five
days of absence without medical proof is a long time. The
applicant’s
excuse for not making effective contact with the
respondent is not good enough”. Although the first respondent
had claimed
that he had informed a colleague, Willem Januarie, that
he would be absent on 5 February 2018, the second respondent ignored
my
uncontradicted evidence that I had personally been to the first
respondent’s home on 5 February and 7 February to look for
the
first respondent and he was nowhere to be found.”
[18]
The first part of this ground of review seems to be a complaint that
the arbitrator incorrectly found that
the company did not inform the
employee of his absence for
four
days which was contrary to
the evidence that the employee had in fact been absent for five
days. Reference is also made to
Mr Hamman’s
uncontradicted evidence that he personally went to the employee’s
home on 5 and 7 February to look for
the employee but he was nowhere
to be found.
[19]
Even though the company’s rule was that five days absence
without leave was regarded as serious misconduct
that could lead to
dismissal, I do not believe that it is a material error if the
arbitrator accepted that the employee did not
inform the company of
his absence for five days. In any event, reference to 4 days
and 5 days seems to be referring to different
things. The former
referring to the employee not
informing
the company of his
absence for 4 days, and the latter that the employee was absent for
five days. In this regard, in paragraph
29 of his award the
arbitrator states that “
Five days of absence without medical
proof, is a long time.”
As I have indicated, in my view not
much turns on this in deciding whether or not the sanction of
dismissal was appropriate in
the circumstances.
[20]
It is correct that Mr Hammond’s evidence that he visited the
employee’s home on 5 and 7 February
2018 but did not find him
there was unchallenged. This in itself does not necessarily
mean that dismissal was appropriate
in the circumstances.
Ground 2
[21]
“
The second respondent found as a fact that the first
respondent had a clean disciplinary record. However, he ignored my
uncontradicted
evidence to the effect that the first respondent had
been disciplined for his role in setting alight wooden anchor poles
supporting
the applicant’s boundary fence. I also
testified that as recently as January this year the first respondent
had also
been disciplined for failing to assist in extinguishing a
fire on the applicant’s farm, despite the fact that he had been
trained as a fire fighter. One of the applicant’s rules
is that employees may be required to assist in emergency situations
and after work hours but the first respondent had refused to help,
saying that the fire had taken place after hours. I submitted
at the
arbitration before the second respondent that these instances of
first respondent’s conduct in totally disregarding
the
applicant’s rules during the past few months, had contributed
substantially to the deterioration of the relationship
between
employer and employee. The unauthorized absence in February
2018 resulted in the relationship being broken down irretrievably.
This evidence was not contradicted, and the first respondent led no
evidence at all in regard to the state of the relationship
between
employer and employee.”
[22]
The complaint under this ground of review
is that the arbitrator ignored the supposed uncontradicted evidence
by Mr Hamman that
the employee was disciplined for his role in
setting alight wooden anchor poles supporting the company’s
boundary fence.
The employee was also allegedly disciplined for
failing to assist in extinguishing a fire on the farm despite being
trained as
a fire fighter. This argument is not supported by
the record.
[23]
The record reflects that the burning of the
wooden anchor poles was referred to the police. No mention was
made of disciplining
the employee in respect of this incident.
Mr Bosch, who appeared on behalf of the company, correctly conceded
this much.
In respect of the fire on the farm, the evidence was that
Mr Hamman had a discussion with the employee who indicated that he
was
not interested in firefighting any longer and he had burnt his
firefighting books and certificates. Once again, the employee
was not disciplined for this.
[24]
With reference to the rule that employees
may be required to assist in emergency situations and after work
hours, no evidence was
led at the arbitration regarding this.
This much was also conceded by Mr Bosch.
[25]
The arbitrator was therefore correct in
finding that the employee had a clean disciplinary record.
Ground 3
[26]
“
The second respondent
correctly found that on a balance of probabilities, the first
respondent “was guilty of misconduct,
unauthorized absence,
without notifying the respondent. It was clear that the
applicant knew and understood the rule. The
applicant contacted a
fellow employee instead of Hamman. The applicant had Hamman’s
direct number available to him. The applicant
was informed that five
day’s unauthorized absence from work was a dismissable
offence”.
[27]
No further details have been provided with regard to the supposed
grounds of review in respect of Ground
3 and as such I am unable to
deal with it.
Ground
4
[28]
“
In considering the sanction, I have indicated that the
second respondent failed to take certain evidence into account.
In
direct contrast to this omission, the second respondent took
certain alleged “facts” into account, where there was no
evidence thereof at all. I refer to the statement made by the
second respondent in paragraph 29 of his award that: “The
applicant was a farmworker and belonged to a vulnerable group of
workers in this country, who remain marginalised in terms of working
conditions, income, living conditions and general resources”.
No such evidence was led by any witness at the CCMA.”
[29]
In respect of this ground the company takes issue with the fact that
the arbitrator referred to the employee
belonging to a vulnerable
group of workers who remain marginalised in terms of working
conditions, income, living conditions and
general resources in the
absence of evidence to this effect. This was but one of the
considerations which informed the arbitrator’s
decision that
dismissal was not an appropriate sanction. In any event, while an
arbitrator is required to have regard to evidence
placed before him,
it cannot be expected of an arbitrator to act as if he or she is
oblivious to the socio-economic conditions
which prevail in our
country. In any event, what was before the arbitrator was that
the employee was a general worker earning
R673.39 per week.
Assuming the employee worked a five day week this amounts to
approximately R135 per day. This is
in itself a strong
indication that the employee belongs to a vulnerable group of workers
who remain marginalised in terms of working
conditions, income,
living conditions and general resources.
Ground
5
[30]
“
In the circumstances I submit that the second
respondent has failed to pay any regard to the evidence which
demonstrated that the
sanction of dismissal would have been fair.
Without any evidence to support his finding, and in direct opposition
to my own uncontradicted
and fact-based evidence, he concluded that
he was not persuaded that the relationship of trust had broken down
beyond repair.”
[31]
What the
arbitrator was required to do was to weigh up the evidence before him
irrespective of the understandably poor case put
up by the employee,
who represented himself, and to make an appropriate finding in the
circumstances. In this regard, Mr
Bosch, in his heads of
argument, referred to the following paragraphs from
Sidumo
& another v Rustenburg Platinum Mines Ltd & Others
[1]
.
“
The
locus classicus on penalty review is the Constitutional Courts
decision in Sidumo & another v Rustenburg Platinum Mines
Ltd &
others
4 Navsa AJ, writing for the majority, held 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 instructions may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-serviced record. This is not an exhaustive
list.
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”
5
Similarly,
Ngcobo J (in a concurring judgment) held that:
“
the
commissioner … does not start with a blank page and determine
afresh what the appropriate sanction is. The commissioner’s
starting point is the employer’s decision to dismiss. The
commissioner’s task is not to ask what the appropriate sanction
is but whether the employer’s decision not dismiss is fair. In
answering the question, which will not always be easy, the
commissioner must pass a value judgment. However objective the
determination of the fairness of a dismissal might be, it is a
determination based upon a value judgment. Indeed, the exercise of a
value judgment is something about which reasonable people may
readily
differ. But it could not have been the intention of the law-maker to
leave the determination of fairness to the unconstrained
value
judgment of the commissioner...fairness requires that regard must be
had to the interests both of the workers and those of
the employer.
And this is crucial in achieving a balanced and equitable assessment
of the fairness of the sanction. These considerations
imply certain
constraints on commissioners. However, what must be stressed is that
having regard to these considerations does not
amount to deference to
the employer’s decision in imposing a particular sanction…
[W]hat is required of a commissioner
is to take seriously the reasons
for the employer establishing the rule and prescribing the penalty of
dismissal for breach of
it. Where an employer has developed and
implemented a disciplinary system, it is not for the commissioner to
set aside the system
merely because the commissioner prefers
different standards. The commissioner should respect the fact that
the employer is likely
to have greater knowledge of the demands of
the business that the commissioner.
However,
such respect for the employer’s knowledge is not a reason for
the commissioner to defer to the employer. The commissioner
must
seeks to understand the reasons for a particular rule being adopted
and its importance in the running of the employer’s
business
and then weigh these factors in the overall determination of
fairness.”
[32]
In light of what I have stated above regarding their being no
evidence that the employee had previously been disciplined for the
anchor pole and the farm fire incidents, there is no basis for this
ground of review. The arbitrator further adhered to
requirements imposed on him by the Constitutional Court in
determining the appropriate sanction.
Ground
6
[33]
“
In addition to the irregularities outlined above, I submit
that the second respondent committed misconduct in relation to his
duties
as a Commissioner, in that he substituted his own personal
opinion on matters relating to the first respondent’s personal
circumstances, when there was no evidence at all to substantiate his
finding.”
[34]
Even if this is the case, I do not believe that any failures on the
part of the arbitrator in this regard
affects the conclusion that he
came to.
[35]
In the absence of any disciplinary action having been taken against
the employee in respect of the anchor
poles and the farm fire
incidents, there is no basis for the employer to argue that the trust
relationship had broken down.
On the contrary, Mr Hamman’s
own evidence was that in general he had a very good relationship with
the employee. In
support of this he testified that he goes to
hunt every year and in 2017 he decided to take 2 of his employees
with him that he
thought worked well up until June/July 2017.
They were not taken with to slaughter animals but to hunt with him
and to chat.
The employee was 1 of these 2 employees.
[36]
Mr Hamman however proceeded to testify that the breakdown in the
relationship started in October 2017. He
then refers to the anchor
pole and the farm fire incidents which I have already addressed.
The only conclusion that I can
come to is that although the employee
was not disciplined for these incidents the employer sought to hold
them against him when
the absence from work incident later arose.
This was unfair in respect of the employee.
[37]
On the facts of this case I cannot see how it can be accepted that an
employee who absents himself from work
for 5 days can be summarily
dismissed. I am in no way condoning the employee’s
misconduct in this regard but rather
emphasising that progressive
discipline is an integral part of our law. Whether or not the
employee’s version was questionable
does not change the fact
that dismissal was inappropriate in this case.
[38]
Everything said and done, what the arbitrator was faced with was
an employee with 5 and a half years’ service and a clean
disciplinary record. Summary dismissal was not appropriate in
the circumstances.
[39]
For the reasons set out above I therefore dismiss the application.
[40]
In the circumstances I make the following order:
Order
1.
The application is dismissed.
For
the Applicant – Mr Bosch instructed by Bob von Witt Attorneys
[1]
[2007]
12 BLLR 1097
(CC).
4
[2007] 12 BLLR
5
Ibid paras 78-79. See also
Fidelity Cash Management Service v
CCMA & Others
[2008] 3. BLLR 197
(LAC) paras 94-95