Association of Mineworkers and Construction Workers Union ("AMCU") obo Malgas v Commission for Conciliation, Mediation and Arbitration and Others (JR 2219/19) [2022] ZALCJHB 373 (6 December 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 2219/19

In the matter between:

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION WORKERS UNION (“AMCU”)

OBO MALGAS, LERATO THANDI Applicant

and

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

DANIEL DU PLESSIS, N.O

Second Respondent

KUSASA MINE

Third Respondent

Date heard: 10 November 2022

Date delivered: 06 December 2022

JUDGMENT

BALOYI AJ

Introduction

1. Review and set aside of the second respondent’s arbitration award is the relief sought by the applicant who is aggrieved by a finding that her dismissal was substantively fair. The dispute between the applicant and the third respondent arose when the third respondent dismissed the applicant on account of misconduct.

2. The applicant faced two charges when appearing before the disciplinary hearing chairperson. The underlying charge is that of dishonesty with two acts attached to it, firstly, she corrected her own AWOP (Absent Without Permission) entry in the third respondent’s payroll system to reflect that she was on family responsibility leave. The second leg of the charge is about the applicant’s failure to submit proof of the family responsibility leave to HR upon

her return from absence. The parties probably out of their own understanding and convenience referred to these parts of the charge

as the ‘first charge’ and ‘second charge’.

Background

3. The applicant was dismissed on 12 December 2018. At the time of her dismissal, she was a Payroll Administrator. As part of her duties, she managed time and attendance records. On 21 November 2018, she completed a leave form in which she applied for family responsibility leave for the period between 22nd and 23rd November 2018. Her supervisor approved it. According to the third respondent’s policies, family responsibility leave is approved

subject to the employee furnishing proof of an event that necessitated the family responsibility leave. In this instant matter,

the applicant was expected to produce a medical certificate as it was her child who was reported not to be well. Until the required proof is submitted to an employee’s supervisor, the pre-approved leave is recorded as AWOP. The status is only changed upon submission of such proof and the adjustment forms must be completed.

4. The applicant did not specifically submit a medical certificate to her supervisor when she resumed duties on 24th November 2018. The third respondent later learnt that she had altered the description of her absence in the system from AWOP to family responsibility leave. The adjustment form was not completed as required.

5. On 05 December 2018 the applicant was confronted by the HR official who wanted her to sign a counselling form for having failed to submit a medical certificate within 48 hours. She refused to sign the counselling form on reason that there was no rule that the certificate must be submitted within 48 hours. The third respondent reacted by instituting disciplinary proceedings against her.

6. The applicant pleaded not guilty to the two charges. The disciplinary hearing chairperson ultimately found her not guilty on the second charge and guilty on the first charge. A sanction of dismissal was imposed. It is not clear from the disciplinary chairperson’s outcome on sanction as to which factors were taken into account to arrive at a decision to dismiss the applicant. It does however appear in the appeal outcome that the sanction imposed by the disciplinary

hearing chairperson was appropriate. According to the appeal chairperson dishonesty was regarded as serious by the third respondent who had in cases of this nature applied discipline consistently.

7. The upholding of the dismissal sanction prompted the applicant to refer an unfair dismissal dispute to the CCMA. The second respondent was the appointed Commissioner to arbitrate on the dispute. In paragraphs 5 to 8 of his award, he recorded that the applicant was dismissed for dishonest conduct arising from a guilty finding on both charges 1 and 2. In paragraph 10 he went further to record that; “In dispute was whether the respondent acted consistently regarding the same type of acts of misconduct, whether the applicant had been subjected to double jeopardy, and whether the medical certificate that the applicant relied upon was valid”.

8. The evidence tendered in support of the applicant’s case further revealed that the applicant changed her leave status from AWOP to family responsibility leave, thus enriching herself with an amount of R1 149.89 which is an equivalent of two days’ remuneration, that is, for the 22nd and 23rd November 2018. Ethically, she was not supposed to make an adjustment in her own case even though she was able to do so. This was done without submitting a medical certificate within two days of returning to the workplace and without completing an adjustment form.

9. According to the third respondent, the medical certificate only came to its attention at the disciplinary hearing. The third respondent found it to be invalid as it was not signed by the doctor. Furthermore, the name of the patient so examined was that of the applicant while the family responsibility leave was in fact requested for purpose of taking her child to the doctor.

10. The reason why other employees who loaded changes to their own leave status were not dismissed was that they submitted valid medical certificates. The applicant was in fact found not guilty in the disciplinary hearing. Counselling is applicable on minor transgressions, its weight is less than that of a warning and it is placed in the employee’s personnel file.

11. The challenge to the validity of the medical certificate went to an extent of lengthy cross-examination of the applicant and Doctor Rakumakoe. It was further attacked amongst others for not being in compliance with the Basic Conditions of Employment Act on the basis that the doctor’s qualifications did not appear on it. The doctor’s letter that was subsequently brought by the applicant with the doctor’s file notes attached, also faced a hefty attack from the third respondent coupled with a challenge to the doctor’s real signature and the name of the practice.

12. The applicant essentially admitted to the changing of the leave status on the system because she was entitled to do so and that other employees have done the same with no issues raised. She did this without the adjustment form because they did not use it in their office. She refused to sign the counselling form because the nature of the misconduct she allegedly committed was not clearly explained to her. She submitted the medical certificate to pay the payroll section.

13. The bulk of the second respondent’s analysis of evidence and arguments rested on the applicant’s submission of an invalid medical certificate and went on to regard it as a document that proved nothing. He found it to be not in compliance with section 23(2) of the Basic Conditions of Employment Act. He frowned upon the applicant’s failure to call the doctor who actually attended to her daughter. He found the evidence of Dr Rakumakoe who happened to have employed the doctor in question to be unhelpful.

Evaluation

14. After reading of the material placed before the second respondent, I was prompted to engage both parties’ Counsel about the issues that required determination by the second respondent. Since the applicant was found guilty on charge 1 and not guilty on charge 2, the arbitration proceedings were only supposed to proceed based on charge 2. Mr Navsa for the third respondent found this analogy to be realistic. Mr Cook for the applicant disagreed and pointed out that the review of the award should be considered holistically, that is, all the findings made by the second respondent should not be overlooked including those related to charge 2.

15. The bare facts before the second respondent were clearly that Charge 2 did not form part of the third respondent’s reason for dismissing the applicant. Although the second respondent dealt with it, it remains a dead rubber for purposes of this review application. Logically, it was not supposed to find its way into the arbitration proceedings.

16. The second respondent was surely guided by the parties to identify the foundation of the issue to be determined. At the commencement of the arbitration proceedings, he recorded the reason for the applicant’s dismissal that it was founded on a guilty finding on two charges. When it came out during the cross-examination of the third respondent’s witnesses that the applicant was found not guilty on charge two, the second respondent still did not see any light flashing all over the foundation of the issue for determination. To be precise, this first came out during the cross-examination of the third respondent’s first witness who doubled up as a representative in this fashion:

“APPLICANT REPRESENTATIVE: Why is it that she was found guilty, not guilty in the disciplinary hearing for this?

RESPONDENT REPRESENTATIVE: This was a counselling that she did not Commissioner form that she did not sign and in the disciplinary hearing charge number 2 was that not providing for family responsibility leave to HR on return from absence. During the disciplinary hearing the emphasis, more emphasis was put on the 48 hours, yes she did not provide the form for family responsibility leave to HR on return but after hearing that much of the emphasis was on 48 hours then she was not found guilty on that.” (my emphasis)

17. This, on proper applying of his mind, it would have come out clearly that the applicant came to the arbitration proceedings to challenge her dismissal solely based on a guilty finding on charge 1. This issue resurfaced during the cross-examination of the third respondent’s second witness with the following placed on record:

“APPLICANT REPRESENTATIVE: Commissioner, I will try to rephrase. However, I did not remember (inaudible) while he was answering. I will try to rephrase this question to be short. I put it to you that one of the reasons that the applicant is dismissed for which is not providing proof of any responsibility it does not make sense in that she was found not guilty about that.

COMMISSIONER: So she wasn’t dismissed for that?

APPLICANT REPRESENTATIVE: Yes. Commissioner, if, if I may…. (intervened)

COMMISSIONER: I think that’s common cause she was not… She was dismissed because she went to the computer and she changed her status and they say she had no authority to do so. You say she had the authority and he agrees that in her normal job description she can do those things.”

18. These parts of the proceedings did not alert the second respondent (even with his active participation) that the bulk of evidence about the validity of the medical certificate should have been eliminated to a point that there was no need to have the doctor called. This without any doubt demonstrates the second respondent’s failure to apply his mind. In Sidumo[1] the Constitutional Court held that where the Commissioner fails to apply his or her mind to the matter which is material to the determination of a fair sanction, it can hardly be said that there was a fair trial of issues.

19. In Fidelity Cash Management Service v Commission for Conciliation Mediation and Arbitration & Others[2] the Labour Appeal Court had the following to say:

“[32] It is an elementary principle of not only our labour law in this country but also of labour law in many other countries that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the

employer gave at the time of the dismissal. The exception to this general rule is where at the time of the dismissal the employer gave a particular reason as the reason for dismissal in order to hide the true reason such as union membership. In such a case the court or tribunal dealing with the matter can decide the fairness or validity of the dismissal not on the basis of the reason that the employer gave for the dismissal but on the basis of the true reason for dismissal.

20. On this note it cannot be overemphasized that the issue of validity of the medical certificate was belatedly canvassed as a reason for dismissal during arbitration proceedings. There was no guilty finding against the applicant in this respect, let alone being charged as such. As pointed out above, the approach adopted by the second respondent in placing a huge focus on material not relied upon by the third respondent when dismissing the applicant, signals nothing else but a gross irregularity that is precipitated by failure to apply his mind to the relevant issues for determination of the dispute between the parties.

21. It is now a settled position in our law on the review of arbitration awards that the discovery of gross irregularity in the arbitrator’s

decision has to a certain extent an effect of rendering an arbitration award reviewable. This long held position was also sealed

in Putco v SA Road Passenger Bargaining Council & Others[3] where the Court restated the said position and held as follows:

[19] The application of the reasonableness threshold empowers a reviewing court to intervene, amongst other grounds, when the decision-maker

commits a gross irregularity. This extends to latent gross irregularities or, put another way, instances where the decision-maker fails to apply him or herself to the available evidence, makes defect of factual findings and the like. In these instances, a party seeking to set aside an award or ruling must establish both the irregularity or defect relied on and that the Sidumo threshold is met. In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others [2007] ZALC 66; [2014] 1 BLLR 20 (LAC), the Labour Appeal Court noted that it is not sufficient for an award to be set aside simply to establish a gross irregularity in the conduct of the arbitration proceedings; it is incumbent on an applicant to establish that the result was unreasonable or ‘put another way, whether the decision that the arbitrator 12 arrived at is one that falls outside the band of decisions to which a reasonable decision-maker could come on the available material’. In other words, the review court must consider whether despite the arbitrator’s reasoning, the result is nevertheless capable of justification on the available material. Thus, material errors of fact on the part of the arbitrator, as well as the weight and relevance to be attached to particular facts or a failure to have regard to particular facts are not in themselves sufficient grounds for review; their effect must be to render the outcome unreasonable.

22. As it has been established that the applicant was found guilty on charge 1 and this verdict was followed by the disciplinary chairperson’s handing down of a sanction of dismissal, therefore, the next question to be answered is whether the second respondent rendered a reasonable outcome by upholding a dismissal based on guilty findings that included charge 1. This charge relates to the applicant’s act of correction of the payroll system to have her status changed from AWOP to family responsibility leave.

23. Based on material placed before the second respondent, the third respondent had upon discovery of the said conduct of the applicant attempted to give her a counselling form. It is not in dispute that the applicant refused to sign it because she was not shown a rule requiring employees to submit medical certificates within 48 hours. The evidence before the second respondent revealed that completion of counselling is a low-level disciplinary measure which may be followed by a warning on the next transgression. What came before the second respondent during the evidence in chief of the third respondent’s first witness was captured as follows:

“COMMISSIONER: Proof of the event requiring family responsibility leave then there’s AWOP. Alright, what is the penalty according to your code for AWOP?

RESPONDENT REPRESENTATIVE: AWOP first offence Commissioner is counselling and second offence will be a warning. It is progressive discipline (intervened).”

24. The above passage of the record demonstrates that on such first offence the third respondent through its own policies had all intentions to apply progressive discipline. There is no evidence tendered to prove the existence of circumstances justifying a giant leap taken by the third respondent to resort to a disciplinary hearing. The third respondent only clung to dishonesty based on the applicant’s submission of an invalid medical certificate when challenged about other employees who effected such correction.

25. What is of paramount importance is that at the time of correction of the applicant’s leave status, the issue of the validity of the medical certificate was not in the picture. In the third respondent’s own words, the medical certificate only came to its attention during the applicant’s disciplinary hearing. Its validity was not an issue for the disciplinary chairperson’s determination. When upholding the dismissal in respect of charge 1, the second respondent

made the following findings at paragraph 27 of the award:

“27. This is a case where, though the overall onus to prove that a dismissal was for a fair reason, the applicant had to prove that the was a valid reason for the absence from work on 22 and 23 November 2018, especially as those were days for which she was paid. I cannot rely on the purported medical certificate or the letter that the applicant provided and find that she failed to prove that she was entitled to family responsibility leave on those two days. I furthermore find that she, as a Bobebe official, acted dishonestly when she changed her AWOP to family responsibility leave when she had not given proof thereof to HR or her supervisor and then at the disciplinary hearing relied on a document which proved nothing. If anything, the document she relied on raise further suspicious.”

26. These findings are certainly reflective of the second respondent’s very failure to apply his mind in respect of charge 2 which was not supposed to be part of the arbitration but was filtered into charge 1. This, has brought about some form of escalation of the misconduct and undue aggravation of the sanction. This leaves the Court with no other conclusion to make than that the third respondent has misconstrued the nature of the enquiry he was tasked with. This, without any doubt, translates to a gross irregularity that brings about an unreasonable result. He failed to acknowledge clear evidence

on the purpose behind the issuing of the counselling form that the third respondent had no intentions of dismissing an employee on first transgression in relation to the correction of AWOP to family responsibility leave. On this note, the decision of the third respondent has without any doubt failed to bring about a reasonable outcome. His decision is therefore not the one which a reasonable decision-maker could reach. In the circumstances, the arbitration award falls to be reviewed and set aside. With a sufficient record of arbitration proceedings in this application, the Court is capable of substituting the order.

27. The applicant sought reinstatement from the onset. It is not in dispute that the applicant’s colleagues who committed similar misconduct were not dismissed. This is clearly indicative of the fact that the misconduct in question does not go to the heart of the trust relationship. On this note, there is nothing militating against the awarding of the relief as sought, retrospective reinstatement.

28. The applicant did not pursue the issue of costs based on the continuing relationship between the third respondent and the applicant’s trade union. I am also of the view that a cost order is under the circumstances not appropriate as the reinstatement order has an effect of the restoration of the employment relationship between the applicant and the third respondent. It will thus not be within the confines of law and fairness to have the parties introduced to a new subject matter of the dispute arising out of a cost order.

29. In the premises the following order is made:

Order

1. The arbitration award issued by the second respondent under case number GAJB 1314/19 is reviewed and set aside, and it is replaced with an order that:

1.1 The dismissal of the applicant is found to be substantively

unfair.

1.2 The third respondent is ordered to reinstate the applicant on the same terms and conditions applicable to her position retrospectively to the date of her dismissal within 15 days of this order.

1.3 There is no order as to costs.

BALOYI AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Adv. AL Cook instructed by Larry Dave Incorporated For the third respondent: Adv. ZM Navsa instructed by Webber Wentzel

[1] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 12 BLLR 1097 (cc) at par 267.

[2] (2008) 29 ILJ 964 (LAC) @ par 32.

[3] (2019) 40 ILJ 2389 (LC) at par 19.