Sneller Verbatim/HDJ
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J3408/01
2002-10-16
In the matter between
CHEMICAL CONVERTORS (PTY) LTD Applicant
and
1st Respondent
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 2nd Respondent
3rd Respondent
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J U D G M E N T
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REVELAS J:
1. This is an application in terms of Section 145 of the
Labour Relations Act 66 of 1995 (“the Act”), as
amended. The application is to review and set aside an
award of the first respondent, to whom I shall refer to
as “the arbitrator”, where he decided that the
dismissal of the third respondent was substantively
unfair.
1. 1. 2. The alleged misconduct which gave rise to the
dismissal was that the applicant had been absent from
work for 41 days in a period of some three months. For
some of these days he could provide an explanation by
producing sick notes, and for some not. One sick note
was produced which proclaimed that the applicant was
fit to work. Another sick note described the third
respondent as being “mentally perturbed”. All in all,
it is difficult to establish from the few sick notes
what in fact was wrong with the third respondent.
3. The arbitrator found, without any supporting evidence
of a medical nature, that the third respondent was ill,
despite the fact that the first respondent was unable
to define what his illness was. The third respondent
had a history of absenteeism. The third respondent was
counselled, given a warning and after a hearing,
dismissed.
4. The first respondent observed in his award, that the
applicant was “only interested in sick notes” and had
no sympathy for the third respondent.
5. In my view the first respondent's findings and final
conclusion was not rationally connected to the evidence
which was before him. He further exceeded his powers
in concluding that the third respondent was ill. He
also created a new policy for the applicant, as to how
tolerant it should be with excessive absenteeism.
1. 6. The employment relationship demands that an employee
should at least be at work to comply with his or her
obligations in terms of the employment contract. If an
employer has demonstrated that it counselled and
warned an employee for continuous absenteeism and that
there is no real reason for that employee to be absent,
and it has acted fairly, it is not open for a
commissioner of the CCMA to create new policies for
absenteeism at a particular workplace.
7. In the circumstances I make the following order:
1. The award of the third respondent under case number
GA95055 is set aside and the award is substituted with
the following: The dismissal of the third respondent
was fair. There is no order as to costs.
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E. Revelas