Chemical Convetors (Pty) Ltd v Toli and Others (J3408/01) [2002] ZALC 174 (16 October 2002)
The court found that the arbitrator's conclusion that the third respondent was ill was not supported by any medical evidence and was therefore irrational. The arbitrator exceeded his powers by creating a new absenteeism policy for the employer and substituting his own judgment for that of the employer. The evidence...
Source-derived case information.
- Citation
- [2002] ZALC 174
- Parties
- Applicant: Chemical Convertors (Pty) Ltd; Respondent: Toli, S N.O.; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Menyuku Thomas
- Court
- Labour Court
- Jurisdiction
- South Africa
- Case Number
- J3408/01
- Procedural Posture
- Review Application / Judgment
- Outcome
- The review application succeeds. The arbitration award is set aside and substituted with a finding that the dismissal of the third respondent was fair.
- Judges
- E Revelas
- Legal Topics
- Unfair Dismissal, Absenteeism, Review of Arbitration Award, Substantive Fairness, Commissioner Powers
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chemical Convertors (Pty) Ltd
Applicant
Toli, S N.O.
Respondent
The Commission for Conciliation, Mediation and Arbitration
Respondent
Menyuku Thomas
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the arbitrator's finding that the dismissal was substantively unfair was rationally connected to the evidence.
- 2 Whether the arbitrator exceeded his powers by concluding the employee was ill without medical evidence.
- 3 Whether the arbitrator improperly created a new absenteeism policy for the employer.
Ratio Decidendi
The court found that the arbitrator's conclusion that the third respondent was ill was not supported by any medical evidence and was therefore irrational. The arbitrator exceeded his powers by creating a new absenteeism policy for the employer and substituting his own judgment for that of the employer. The evidence showed that the third respondent had a history of absenteeism, was counselled and warned, and was dismissed only after a fair hearing. The employer acted fairly and reasonably in dismissing the third respondent. The award was therefore set aside and substituted with a finding that the dismissal was fair.
Court Disposition
The review application succeeds. The arbitration award is set aside and substituted with a finding that the dismissal of the third respondent was fair.
Orders
- The award of the third respondent under case number GA95055 is set aside.
- The dismissal of the third respondent was fair.
Full Case Text
Judgment text and source record
24 paragraphs
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
TOLI, S N.O. 1st Respondent
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 2nd Respondent
MENYUKU THOMAS 3rd Respondent
________________________________________________________________
J U D G M E N T
REVELAS J:
1. This is an application in terms of Section 145 of the Labour Relations Act 66 of 1995 (âthe Actâ), as amended. The application is to review and set aside an award of the first respondent, to whom I shall refer to as âthe arbitratorâ, 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 âmentally perturbedâ. 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 âonly interested in sick notesâ 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.
________________
E. Revelas