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IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J2161/98
In the matter between:
KARBOCHEM SASOLBURG (a division of
Sentrachem Ltd) Applicant
and
KRIEL AND OTHERS Respondents
J U D G M E N T
LANDMAN J:
1. The applicant in this matter is Karbochem Sasolburg (a division of
Sentrachem Ltd) which seeks to review an award handed down by a
commissioner of the Commission for Conciliation, Mediation and
Arbitration.
2. Mr S A Jacobs, the fourth respondent, a member of the Chemical
Workers Industrial Union, was dismissed by his employer on 2 February
1998. His dismissal eventually resulted in an arbitration award which
was handed down by the commissioner on 14 August 1998.
3. Briefly stated, the facts were that Mr Jacobs was required to report for
shift duty on Friday, 30 January 1998. He told the commissioner that he
had been informed that his sister was involved in a motor collision in
Duncanville. At 19h45 he phoned his employer to advise him of this. He
spoke to one Gert Coetzee. Mr Jacobs says:
"I told the foreman that I will not be able to come to work that
night. I told him that my sister was involved in an accident, so I
am about to rush there and see what is going on."
4. Mr Coetzee also gave evidence at the arbitration proceedings. He said
that he recorded what Mr Jacobs had said to him. He says that he wrote
the following down: "Sy suster was vermoedelik in 'n motorongeluk. His
sister probably was in a car accident, en is oorlede, and is deceased." I
may add that that may not be the exact words because of the way in
which the proceedings at the arbitration were translated.
5. However, in reply to the call, Mr Coetzee indicated that Mr Jacobs was
talking "nonsens”. He says he said this because he had been informed
that Mr Jacobs had, from time to time, come up with peculiar excuses for
not attending work. Mr Coetzee went on to say that there was no need
to grant permission to be away in these circumstances. The
circumstances refer to the communication which he received from Mr
Jacobs, namely that he had to deal with an emergency situation.
6. Mr Jacobs, in his evidence before the commissioner, confirms that he
did not ask for permission to be away. He merely conveyed the
circumstances to Mr Coetzee. It was common cause, at the arbitration
proceedings, that the sister was not deceased and that, naturally, a
death certificate could not be produced. It is not entirely clear from the
transcript of the arbitration proceedings whether the sister was involved
in an accident in Duncanville. However, it was not put to Mr Jacobs that
this was not the case. On his return to work on the Saturday Mr Jacobs
did not fill in a leave form.
7. It appears to have been common cause at the arbitration that Mr
Jacobs' sister was either not hurt at all or not seriously hurt. Mr Jacobs
did not phone his employer to tell them of this. Nor did he attempt to go
back to work that Friday evening although he could have done so. Other
evidence was led before the commissioner and documents were put up,
including the terms and conditions of the employment relating to Mr
Jacobs, but, in my view, nothing turns on those documents although
much has been made of it in these review proceedings.
8. The parties were afforded an opportunity to file heads of argument in the
place of closing speeches and thereafter the commissioner delivered his
award. The decision which he arrived at is the following:
"After reviewing all the evidence presented to me I find the
dismissal of the applicant was substantively unfair for the
following reasons:
●. the applicant did phone the company to report that he
won't be able to report for duty.
●the applicant did report his absence in line with the respondent's
conditions of service.
● a less severe disciplinary measure would have sufficed in
this case.
ARBITRATION AWARD:
The respondent is to reinstate the applicant retrospective to the
date of dismissal which was 6 February 1998."
9. The commissioner's award is attacked by the employer on seven
grounds. I propose dealing with each ground in turn.
10. The first attack was based on the refusal of the commissioner to allow a
Mrs Malan to testify on behalf of the employer. It is said that this infringed the
employer's right to audi alteram partem. It appears from the record that during
the course of the crossexamination of Mr Jacobs a certain issue was raised
with him relating to the relationship between him and his wife after he had been
dismissed. Mr Prinsloo, one of the employer's team, put it to him that he
would be obliged to call Mrs Malan, the other member of the team, to give
evidence on this issue. The commissioner refused to allow it and it was not
persisted with.
11. In my opinion the commissioner was wrong to refuse it for the reasons
which he did. He said that as Mrs Malan's name was not on the list of
witnesses she could not testify. Furthermore, she was a part of the
employer's team and for this reason she could not testify. Moreover, she
was present during the evidence and the crossexamination of Mr
Jacobs. Those are not good grounds for refusing her permission to
testify but the matter was not a material issue. It was a collateral issue
and evidence would not have been permissible on it in any event. In the
result I find that there was no material irregularity.
12. The second cause of complaint relates to a document, the terms and
conditions of employment of Mr Jacobs which was not discovered and
but which was obviously in the possession of the employer. The
document setting out the terms and conditions of employment was used
in crossexamination of the employer's witnesses. When it was put into
use an opportunity was not afforded the employer's witness to read the
document. The employer's representative did not ask to see it, nor did
he ask for an opportunity to make a copy of it. On behalf of the applicant
it was contended that the commissioner was under a duty to advise the
employer about the admissibility of the document. In my opinion the
commissioner was under no such duty. I do think that he should have
allowed the employer an opportunity to peruse the document. He did not
do so. Nevertheless I do not think that an injustice has been done
because the document, in my opinion, is not particularly relevant. The
document deals with the question of getting permission to be away in
case of illness. It seems, wrongly, to have been put into a more general
context. However, Mr Gert Coetzee says that no prior permission was
necessary from the employer in an emergency situation such as that
described to him by Mr Jacobs. All that would be required of Mr Jacobs
was to prove ex post facto that he had grounds for being away. I find no
irregularity on the part of the commissioner.
13. The third ground relates to certain new documents which were attached
to the heads of argument submitted by the union to the commissioner.
Some of these documents were new; some of them were not. The
commissioner has said that he did not rely on them and there is no
reason to believe that he did rely on them. There is no merit in this
point.
14. The fourth point taken by the employer is that the commissioner
exceeded his powers. Mr du Plessis, who appeared on behalf of the
applicant, sought to rely on the Labour Appeal Court decision of
Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425
(LAC). The employer's case on this issue is that it was common cause
that a final warning had been issued to Mr Jacobs and that it was current
as at 30 January 1998 when he informed Mr Coetzee that he would be
unable to attend work. Mr Jacobs, represented by the union, and his
employer had entered into an agreement at the CCMA on 7 November
1997. They agreed on the following:
"1. The employee will be reinstated effective 1 December
1997 with no back pay in a similar position (Grade P14).
2. A final warning effective from 1 December 1997 for absenteeism will be
recorded against the employee's record.
3. The company will not assist the employee with debt or collateral
security.
4. A medical certificate must be produced by the employee
for each day of absence for sick leave."
15. The employer says that the commissioner's finding was not justifiable in
the light, inter alia , of the fact that there was a final written warning which
was current. I think, to an extent, the commissioner misread the
evidence in so far as he purports to record, in a very cryptic note, that
permission was required for absenteeism. This is not in line with
the main thrust of the evidence and the common cause evidence of Mr
Coetzee and Mr Jacobs. There was no need for permission in the kind
of emergency which was communicated on 30 January. The
commissioner says in his affidavit:
"The fourth respondent was not guilty of misconduct relating to
absenteeism but to misconduct relating to not completing the
relevant leave forms on time."
16. As the commissioner had found Mr Jacobs not guilty of absenteeism,
there was clearly no need to pay any attention whatsoever to his
disciplinary record. The commissioner does make reference to Mr
Jacob’s failing to complete the relevant leave forms and appears to
suggest that he was guilty of this. But he was not charged on this count.
It was not the issue before the arbitration proceedings. This is probably
why the commissioner made a remark in his award that a less severe
penalty would have sufficed in this case. In my opinion there is no merit
in this challenge to the award
17. The fifth point raised by the applicant is that the commissioner was guilty
of misconduct in that he failed to apply the code of good practice and the
relevant warning. I have already indicated why the warning was of no
relevance. There is also no merit in this point.
18. The sixth ground on which the applicant relies is that the commissioner
failed to apply his mind to the matter. This submission is based on two
passages in the arbitration award. The first passage reads:
"Mr de Fleur, production superintendent for respondent and Mr
Coetzee testified that according to their knowledge an employee
had to obtain permission first before absenting oneself from
work."
The second passage reads:
"The applicant did report his absence in line with the respondent's
conditions of service".
The essence of the employer's complaint is that it does not relate to the
standard terms and conditions of employment. However, that document
is in my opinion irrelevant. The remarks of the commissioner, although
cryptic and although liable to be misunderstood, are not essential to the
decision of this case. I have already pointed out that on the evidence of
Mr Jacobs and Mr Gert Coetzee, no permission was necessary in the
circumstances of an emergency. All that was required was that the
employee should notify his supervisor. I should add there may well be
circumstances where the employee might not be able to do that.
19. The last ground of attack is that the commissioner was biased. This
attack is made in the supplementary affidavit of Mr Prinsloo. It is based
on four legs. The first one is that the commissioner allowed the union to
ask leading questions. The record in these proceedings is extremely
bad, mainly because a suitable machine was not used to record the
evidence, but, as I read the record, it cannot be said that the
commissioner allowed leading questions which prejudiced the
employer's case in any way. It may well be at certain stages the
commissioner was unduly inflexible. For instance at the end of cross
examination a new question occurred to the employer's representative
immediately before reexamination but he was not allowed to ask it.
However, this does not lead to any inference of bias.
20. Then it was alleged that the commissioner was biased because he failed
to allow the employer’s representative to read the terms and conditions
of employment before questions were put to the witness. I think the
commissioner was wrong in this regard. He should have afforded the
employer's representative the opportunity of reading the new document. But
although he was wrong this is not indicative of bias. The third leg alleges that
the commissioner took part in crossexamination. I have read the record. This
complaint is not justified. The last leg of this complaint refers back to the sixth
ground of complaint. But I have already dealt with it. It is unnecessary to
canvass it again.
21. There is no merit in the complaint that the commissioner was biased. It
may well be that the commissioner was perhaps inexperienced and
appeared to want to get on with matters too hastily. He was perhaps
inflexible. But to say that he was dishonourable or dishonest in the
sense of bias, that he favoured the union or the employee above the
applicant, is totally without any basis.
22. Counsel for the applicant did not espouse this cause. He did not submit
that the commissioner was biased. He contented himself with saying
that there was a reasonable suspicion of bias. I must point out that
the complaint of bias was only made in the supplementary affidavit
after
the record had been filed. It was not made in the founding affidavit. If Mr
Prinsloo had genuinely thought that there was bias, or a suspicion of bias, one
would have expected him to have raised it either during the course of the
arbitration proceedings or at least in the founding affidavit. He did not do this. It
is indicative, to my mind, of a groundless complaint.
23. In the circumstances the review cannot succeed and the application
stands to be dismissed. The applicant suggested that costs should be ordered
against the commissioner. However in order to show this court's disapproval of
the groundless and baseless attack on the bona fides of the commissioner by
alleging that he was biassed, which is far more serious than alleging that there
was a suspicion of bias, I intend making a special order as to costs.
24. In the premises I make the following order:
1. The application is dismissed.
2. The applicant is to pay the first respondent’s (i.e commissioner's) costs,
on an attorney and client scale.
3. The applicant is to pay the third and fourth respondents' costs on a party
and party basis.
4. Should the applicant wish to challenge the order in paragraph 2, it shall
file a notice to this effect within 14 days from today.
Signed and Dated at Johannesburg on the 3 rd Day of June 1999
JUDGE A A LANDMAN
Judge of the Labour Court
Date of Hearing: 13 May 1999
Date of Judgment: 14 May 1999
On Behalf of Applicant: Adv A du Plessis
Instructed by: Riaan du Plessis Inc.
On Behalf of Respondents: Adv J G van der Riet
Instructed by: Cheadle Thompson &
Haysom