Malimba v CCMA (Sun International)

Progressive discipline applied and labour court decided that through various disciplinary warnings and the final written warning that remained valid as at the time of the infraction there was no doubt that corrective action taken against him in the past had not yielded desired results and there was no basis for the Commissioner to believe that the Applicant ought to be given another chance and interfere with the termination of employment as he had concluded.

Essence

Progressive discipline applied and various factors considered including alleged inconsistent treatment and final and other valid warnings given to employee.

Decision

(JR1594/18) [2021] ZALCJHB 2 (23 January 2021)

Order:

Refused review application.

Judges

Edwin Tlhotlhalemaje J

Heard:        8 October 2020

Delivered: 23 January 2021

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at 448

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2020)

Van Niekerk and Smit (Managing editors) et al [email protected] 5ed (LexisNexis 2019) at 

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at

Garbers The New Essential Labour Law Handbook 7th ed (MACE 2019) at 214-218

Reasons

“[36] In summary, I am satisfied that in line with the approach enunciated [by the LAC] in Goldfields , the Commissioner in this case in terms of his duty to deal with the matter with the minimum of legal formalities,

  • afforded the parties a full opportunity to have their say in respect of the dispute;
  • properly identified the dispute he was required to arbitrate;
  • understood the nature of the dispute he was required to arbitrate;
  • dealt with the substantial merits of the dispute; and
  • most importantly, arrived at a decision that another decision-maker could reasonably have arrived at based on the evidence that was placed before him.”
Quotations from judgment

Note: Footnotes omitted and emphasis added

Introduction:

[1] With this opposed application, the Applicant seeks an order reviewing and setting aside the arbitration award issued by the Second Respondent (Commissioner) dated 27 June 2018. The Commissioner had found that the dismissal of the Applicant by the Third Respondent (Employer) on 23 March 2018 was substantively fair.

[2] Malimba was prior to his dismissal, employed by the Employer as Dealer in its gambling business at its premises in Sun City, Rustenburg. He was dismissed on account allegations of misconduct related to absenteeism on 27 January 2018, and failing to report for duty without notifying management, hence the referral of an alleged unfair dismissal dispute to the First Respondent, the Commission for Conciliation Mediation and Arbitration (CCMA).

Preliminary issues:

[3] The Applicant had on his own launched the review application on 14 August 2018 which was filed on 21 August 2018. On 29 August 2018, the Rule 7A(5) notice was served on the Applicant. The record was filed on 21 November 2018, followed by Notice in terms of Rule 7A(8)(b) on 26 November 2018.

[4] The Employer contended that after expiry of the 60 day period within which the transcribed record of arbitration proceedings was expected to be filed, it had served and filed a Notice of Deemed Withdrawal on 11 December 2018. It had nonetheless and without the benefit of the transcribed record, filed its answering affidavit on 4 January 2018.

[5] The Applicant’s attorneys came on record on 1 February 2018 and had on 19 February 2019, filed a replying affidavit and inter alia denied that a record had not been served. It was however conceded that the record as filed was incomplete, as the CCMA bundles were not part of it. The application for condonation and the reinstatement of the review application was filed and delivered on 15 April 2019, which the Employer had opposed.

[6] From the pleadings, it appears that to be common cause that a transcribed record, albeit incomplete, was filed before the expiry of the sixty-day period. The outstanding portions of the record were filed some 93 days outside the sixty days, and it is apparent that this is the period for which the Applicant must account for.

[7] The principles applicable to applications for condonation need not be repeated, other than to highlight that in the end, the interests of justice would dictate whether condonation ought to be granted or not, upon a consideration of a variety of factors, inclusive of the extent and nature of the delay, the explanation thereof, the prospects of success on the merits, and the prejudice to the parties or the administration of justice .

[8] I agree with the submissions made on behalf of the Employer that the delay in filing the complete record is extensive. I further agree that the Applicant had not proffered a full account for each period of the delay other than alleging that he is a lay person who had relied on his erstwhile attorneys in ensuring that the Court’s rules and procedures were complied with.

[9] The Applicant had merely blamed the delay on those attorney’s ‘inactions’, ‘failures’ and ‘mistakes’. Even if these were the constraints the Applicant was faced with, notwithstanding the fact that his current attorneys came on record from 11 January 2019, it took him a further three months to file and deliver the application for reinstatement and condonation. Again, without any further explanation for that delay, he blamed the Employer’s attorneys of record for the delay.

[10] In the end, the explanation proffered by the Applicant for the delay in filing a complete record hardly qualifies as acceptable or reasonable. Inasmuch as the delay is extensive and the explanation is hardly acceptable, I agree to a large extent with the submissions made on behalf of the Applicant that the prejudice to the Employer is minimal.

This is so in that only a small portion of the record had not been filed on time, and this has since been rectified. Inasmuch as the Employer had filed its answering affidavit without the benefit of a complete record, and had further complained about the new material that was raised in the replying affidavit, it is my view that any such prejudice could have been mitigated by an application to supplement the answering affidavit, which for reasons unknown, was not filed.

To this end, I am of the view that in the light of minimal prejudice to the Employer and the importance of finally disposing this matter, the interests of justice dictate that the application condonation for the late filing be granted, and that the review application be reinstated.

The Merits:

[11] The facts of this case are hardly complicated. As already indicated, the Applicant was dismissed for being absent from duty without authority on 27 January 2018. Prior to the incident leading to the dismissal, the Applicant had on his employment record, other various disciplinary warnings viz;

  • a) A written warning for leaving the workplace without permission and refusing to obey an instruction, which was issued for these infractions in October 2015.
  • b) A written warning valid for six months for absenteeism on 26 December 2016 and 1 January 2017, which was issued in March 2017;
  • c) A final written warning valid for 12 months issued on 7 July 2017 for his absenteeism on 5 May 2017.

. . . .

The Commissioner’s findings:

[16] The Commissioner after having had regard to the provisions of sections 188(1); 188(2) 192(2) of the Labour Relations Act (LRA) , and Schedule 8 of the Code of Good Practice, made the following conclusions;

16.1 In regards to the Applicant’s reliance on historical inconsistency of application of discipline, he (the Applicant) had relied on rosters/clocking history of employees who were in his department from July 2017 to 28 January 2018, viz, Busi, Anna, Aubrey, Peter and Andrew, whom he alleged were treated differently even though they were also absent from work.

16.2 The Commissioner was satisfied that the Employer through its witnesses had proffered an explanation in regards to each of the employees mentioned, including pointing out that some of them were either issued with final written warnings, or dismissed for similar offences. The Commissioner further concluded that the Applicant had made general accusations of inconsistent disciplinary action against other employees he had mentioned; that each case was to be judged on its merits, and that the cases that the Applicant had made comparisons with were distinguishable from the facts of his case, in view of his disciplinary record.

16.3 In regards to whether the a workplace rule was contravened, the Commissioner accepted that the Applicant was told to go home and fetch his ID card, but that he did not return on 27 January 2018. He found that that his explanation that he did not report to management that he would be absent on the basis that he should not come back until he had his card was improbable. This was so in that given his years of service, he knew the importance of reporting for duty. The fact that he only left the premises at 02h19 after being told to fetch his card at 19h42 indicated that he had no intention of obtaining the card, and showed lack of urgency that the matter required.

16.4 The Commissioner accepted that the Applicant’s position as a Dealer and the consequences of his absence were loss of revenue, which aggravated the offence in question in view of the history of discipline and corrective action taken by the Employer in the past.

16.5 The Commissioner had concluded that after consideration of all the relevant circumstances, the Employer had proven on a balance of probabilities that the Applicant contravened the rule; that his version was improbable, and that there was no reason to interfere with the decision to dismiss.

The grounds of review and evaluation:

[17] The Applicant seeks a review of the arbitration award on a variety of grounds, including that the Commissioner failed to properly consider his version and reasons for absence; failed to take into account that a dismissal was not the only plausible sanction; and that the award was unfair, incorrect and unreasonable.

[18] The test on review need not be rehashed, other than to restate that the question that this Court needs to answer is whether the decision reached by the commissioner is one that a reasonable decision- maker could not reach The test is clearly a stringent one, to ensure that arbitration awards are not lightly interfered with .

[19] In the Applicant’s papers, and further during these proceedings, it was contended that he was charged incorrectly, alternatively that he was charged with an incorrect charge.

In this regard, it was submitted that the essence of the charge related to the failure to produce a staff ID card, and for losing that card, as opposed to that of absenteeism for which the Applicant was dismissed.

[20] I fail to appreciate the reasoning behind this submission in view of the specific charge that the Applicant was called upon to answer to at the internal disciplinary enquiry, and further in view of the common cause facts and circumstances that led to that charge.

[21] The Notice to appear before the internal enquiry specifically called upon the Applicant to answer to the allegations of absenteeism in that on 27 January 2018, he allegedly failed to report for duty without notifying management or was absent without management’s permission. This was the charge that the Applicant was faced with, and which in terms of the provisions of section 192(2) of the LRA, it was for the Employer to prove that the dismissal in that regard was fair.

[22] At no point was the Applicant charged with not producing his ID Card or losing that card. It cannot therefore be for the Applicant to choose which offence he should have been charged with. The primary consideration is whether the employer had as correctly pointed out by the Commissioner, discharged the onus placed on it, to prove that the reason for the dismissal was fair.

[23] In this case, it was common cause that the Applicant failed to report for duty on 27 January 2018, and that he had not called management about his absence or proffered the reasons in that regard.

The Staff Handbook in regards to absenteeism provides that;

‘2.10 (Absenteeism)

If you are unable to report to work for any reason, it is your responsibility to get word to your Head of Department or his/her assistant on your first day of absence, before the end of your scheduled shift. Advise him/her of the reason for your absence, otherwise you will be marked absent and lose a day’s pay for each day away from work.

If you fail to report for duty without the knowledge and consent of your Head of Department for three (3) days and are unable to give a satisfactory explanation, you will be deemed to have deserted the employment of the Company. The appropriate disciplinary action will be invoked’

[24] The offence of absenteeism requires fault on the part of an employee, and in considering the fairness of a dismissal in such cases, the Commissioner was required to inter alia, examine factors such as the duration of the absence, the nature of the Applicant’s job, previous warnings, the reason for absence, and whether the Applicant attempted to contact the Employer during the period of absence.

[25] In circumstances such as in this case, where the Applicant was already on a valid final written warning for absenteeism, the Employer could not be held purely to the guidelines set out in the Handbook in regards to how to deal with such similar offences.

Even if it could be argued that since the Applicant was absent for a day and that he ought to only have been docked a day’s salary, on the Applicant’s own version, he had refused to sign documentation presented to him in that regard. In the end, discipline being a management prerogative, it was within the Employer’s rights to deal with the offence in question as it deemed fit in the light of it being a repeat offence, obviously with due regard to the considerations of fairness.

[26] At the arbitration proceedings, the Applicant had conceded that he had not called the Head of Department or his/her assistant to advise of his absence. His reasoning was that management was aware of the reasons for his absence; or that he did not report for duty as he was acting in accordance with instructions that he should not come back until he had his ID card, and thus there was implied permission for him to be absent.

[27] Dipuhle’s testimony was that indeed the Applicant was told to go home to fetch his ID Card. It was her contention however that she never told him not to report for duty until he had his card with him. Even if that was the case, all that the Applicant needed to do before his shift started at 20h00, and to the extent that on his own version he had managed to recover his ID card from Rustenburg on 27 January 2018, was to call management and advise that he was not going to report for duty, and give whatever reason for the absence.

Despite having retrieved his ID Card, he however chose not to call management, which satisfies the element of fault.

[28] The submissions made on behalf of the Applicant that there were no rules requiring him to call management in regards to his absence to advise of his whereabouts during his absence, particularly when it was known where he was and what he was doing, equally lacks merit.

The obligation remained on the Applicant to call management to advise of his absence and the reasons in that regard. Management merely told him to go and fetch his ID before reporting for duty, and I fail to appreciate how management was expected to know his whereabouts after he had clocked out at 02h00 on 27 January 2018, or where his ID card was, and/or whether he had recovered it.

It follows that the contentions made on behalf of the Applicant that he had merely obeyed instructions by not reporting for duty or that he had implied permission to be absent are mere red herring. The Commissioner’s conclusions therefore that his version was not probable and ought to be rejected, were reasonable.

[29] When considering the question of sanction, the Court in Sidumo outlined the guidelines as follows;

‘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 instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service 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.”

[30] It was submitted on behalf of the Applicant that the Commissioner failed to take into account that a dismissal was not the only plausible sanction, and that even if the Applicant was found guilty, he ought to have been given a further chance even when he had a valid final written warning. This was so it was argued, in view of inter alia, the Applicant’s long service, lack of dishonesty in his conduct; the slight inconvenience to the employer, and where no proven loss or damage was shown by the employer.

[31] As already indicated, the Commissioner in confirming the dismissal took into account the circumstances of the case. It is accepted that the Commissioner did not in any particularity indicate what factors were taken into account in confirming the appropriateness of the sanction.

Be that as it may, that omission cannot in my view render the award reviewable. This is so in that Dipuhle had testified in regard to the importance of the Employer having a full staff complement on the gaming floor, and the loss of revenue should tables not have Dealers at any one given time, especially over weekends.

[32] Furthermore, the Applicant had clearly failed to display candour in regard to his absenteeism and conjured improbable versions as to the reasons he was absent.

He deliberately chose not to call management when he knew that he would not report for duty, and this was in circumstances where he was, or ought to have been reasonably aware of the rules and policies in that regard, and the consequences of his absence.

The basic premise of having the rules in question in place is to allow the Employer to make timeous alternatives where an employee is unable to report for duty. Clearly the Applicant had scant consideration for the Employer’s needs in that regard.

[33] The conclusions of the Commissioner in regard to whether the Employer had applied discipline inconsistently are equally unassailable. The principles regarding consistent application of discipline are trite.

Recently [the LAC] in Samancor Limited (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration Limpopo and Others , it was emphasised that in any event, a finding of inconsistency of discipline could not come to the aid of other employees .

[34] In this case, the Commissioner had regard to the evidence led in regards to the comparators that the Applicant had referred to, and found that the Employer had distinguished those from their merits in dismissing the Applicant. That finding cannot be faulted.

[35] In the end, through various disciplinary warnings and the final written warning that remained valid as at the time of this particular infraction, there is no doubt that corrective action taken against him in the past had not yielded desired results.

In the light of these considerations, there was no basis for the Commissioner to believe that the Applicant ought to be given another chance and interfere with the sanction of the dismissal as he had concluded.

[36] In summary, I am satisfied that in line with the approach enunciated [by the LAC] in Goldfields , the Commissioner in this case in terms of his duty to deal with the matter with the minimum of legal formalities,

  • afforded the parties a full opportunity to have their say in respect of the dispute;
  • properly identified the dispute he was required to arbitrate;
  • understood the nature of the dispute he was required to arbitrate;
  • dealt with the substantial merits of the dispute; and
  • most importantly, arrived at a decision that another decision-maker could reasonably have arrived at based on the evidence that was placed before him.

[37] I have further had regard to the requirements of law and fairness in regards to an award of costs, and I am of the view that the circumstances of this case do not call for a costs order.

[38] Accordingly, the following order is made;

Order:

1. The late filing of the complete record of the transcribed arbitration proceedings is condoned, and the review application is reinstated.

2. The application to review and set aside the arbitration award issued by the Second Respondent under case number NWRB949-18 dated 27 June 2018 is dismissed.

3. There is no order as to costs

Court summary