Mandalana v Commission for Conciliation, Mediation and Arbitration and Others (JR2231/2009) [2013] ZALCJHB 339 (7 November 2013)

REPUBLIC OF SOUTH

AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

NOT

REPORTABLE

CASE NO: JR 2231/2009

In the matter between:

MZEKELE

AMOS MANDALANA Applicant

and

COMMISSION

FOR CONCILIATION

MEDIATION AND ARBITRATION First Respondent

MUSA

BALOYI N O

Second

Respondent

PIEMANS

PANTRY AN OPERATION OF

FIRST LIFESTYLE GROUP (PTY) LTD Third

Respondent

Heard: 18 October 2013

Delivered: 7 November 2013

Summary: Review: Application dismissed

GUSH J

[1] The applicant in this matter applies to review and set aside the award of the second respondent in which award the second respondent held that the applicant’s dismissal was "fair both procedurally and substantively".[1]

[2] The background to the circumstances which led to the applicant’s dismissal is as follows:

a. The applicant was employed by the third respondent with effect from either 19 October 2003 (applicant’s evidence[2]) or 19 July 2004 (applicant’s contract of employment). The applicant’s contract of employment states "you have been appointed as a “frozen packing” (sic). At the time of his dismissal the applicant was earning R3400 per month.

b. The applicant was dismissed on 8 April 2009 following a disciplinary enquiry into his absence from work without permission commencing 13 February 2009;

c. At the disciplinary enquiry and the arbitration, the applicant offered the following explanation for his absence: having worked nightshift on 13 February 2009, the applicant had travelled to his home in Matatiele, in the Eastern Cape in order to resolve a problem that had arisen in respect of the delivery of building materials; the applicant maintained that he had telephonically advised security of his intended absence and on his return on 19 February 2009 had been handed a letter calling him to a disciplinary enquiry which was to take place on 8 April 2009; the applicant suggested that on receipt of the letter he had been told by the bearer that he should not return to work until 8 April. The applicant next reported for duty on 8 April when he attended the disciplinary enquiry.

d. The third respondent’s version was that the applicant had not requested permission to be absent nor had he reported that he was to be absent to his supervisor or the company itself. The respondent denied that the notice to attend the disciplinary enquiry was handed to the applicant on 19 February, denied that the applicant was told to report only on 8 April and produced a copy of the letter advising the applicant of the disciplinary enquiry which letter is dated 2 April 2009.

[3] The applicant also filed an application for condonation for the late filing of the record which application was granted at the commencement of proceedings.

[4] The applicant presented four versions of his explanation of the events that led to his dismissal that basically constitute his grounds of review; firstly in the founding affidavit attached to the first notice of motion; secondly in a supplementary affidavit filed in accordance with the provisions of rule 7A of the rules of this Court (after receipt of and apparently having perused the transcript of the arbitration hearing); thirdly in an amended notice of motion and an "extended supplementary affidavit" (after receipt of the third respondents answering affidavit) and the fourth version in the transcript of the arbitration.

[5] In the first affidavit, the applicant explains a version of the circumstances that led to his failure to report for work on the following working day after Friday 13 February 2009. The applicant records:

‘On 13 February 2009 I was at work and on 14th of the same month I went to the Eastern Cape to fix up a problem concerning my building

material. Whilst I was in the Eastern Cape [it] became clear that I won't make it at work [I] can only report to work on 20 February

2009, I decided (on Monday morning) [16 February 2009] to call my manager to let him know of my whereabouts. The phone was answered by a security guard told me that his manager was very busy and that he would pass my message on to him of my whereabouts and I should call back again to find out. On calling back later, the security guard told me that my manager [said] it's fine, no problem.’[3]

[6] The explanation continues to record that the applicant, on 20 February was given notice to attend a disciplinary enquiry on 8 April 2009 on a charge of desertion.

[7] There is no explanation as to why the applicant did not immediately report for duty or why he simply remained absent from work until 8 April 2009.

[8] The averments made under the heading grounds of review, apart from the more in keeping with grounds of appeal, misrepresent the contents of the third respondent’s disciplinary code and are not supported by a perusal of the transcript of the arbitration.

[9] The second affidavit, the “supplementary affidavit”, appears to be an attempt to bolster the original founding affidavit and includes the following statement:

On 13 February 2009 I was given authorised leave of 4 days as I needed to go to the Eastern Cape to sort out a problem concerning the building material for my home there.

When it became clear once I arrived in the Eastern Cape that the problem was there to attend you would require me to stay for a few more days I called the respondent...to inform the manager of my circumstances. On the day that I called the third respondent the phone was answered by a security guard. I explained my circumstances to the security guard who answered the phone and asked him to relay the message along with my request for an extension of my authorised 4 days leave, to the manager. I also informed the security guard of the date on which are expected to be able to return to work that day being Friday, 20 February 2009. When I called the third respondent again ..,. Later that day to confirm whether the message had indeed been relayed to the manager the phone was again answered by the same security guard. I asked him whether he had passed my message onto the manager and with the manager granted my request an extension of leave to accommodate my circumstances, and he replied in the affirmative to both.

Unfair 20 February 2009 I return to work and was handed a letter suspension wherein I was given notice to attend a disciplinary hearing that was scheduled for late April. The letter stated that I would be suspended until the day of the disciplinary hearing. At the disciplinary hearing on 8 April 2009 and was handed a new letter dated to April 2009. This letter was exactly the same as the first letter except for the date.[4]

[10] The third version is set out in the applicant’s "extended supplementary affidavit". In this version the applicant records the following:

I was on duty on nightshift from Friday, 13 February 2009 at 15H30 to 01H00 in the early morning 14 February 2009.

On Saturday, 14 February 2009 I worked nightshift from 13H00 to 20H00.

15 February was a Sunday and I was not supposed to work.

I was supposed to resume my work on Monday, 16 February 2009 at 15H30.

On Sunday the 15th February 2009, my sister called me and informed me that the hardware I bought building material from had delivered raw material and had short supplied the material. I had to go home and fix that problem. I could not phone my employer, as management staff is off on weekends.

The policy of the respondent was that, if one wanted to ask for permission to come to work, or to report failure to come to work, one had to report to a production manager. We were given a telephone number to use under no circumstance.

On Monday, 16 February 2009 between 06H00 and 07H00 I phoned the number given by the respondent to us to call in case we wanted permission to go to or report absence from work.

I wanted to talk to Adrian, the then dayshift production manager. The phone was answered by a security officer stationed at the respondent's premises.

I asked to talk to Adrian. I waited a while, and she later told me that a Adrian had said that he was busy at production and I should tell the security officer why I wanted to talk to him.

I told the security officer that I wanted permission not to come to work until the 19th, and be back at work on Friday, 20 February 2009, because I wanted to attend to personal problem at home in Eastern Cape.

The security officer said she would convey the message to Adrian, and I should call her later.

I called letter, and she reported to me that Adrian had agreed that I be away for four days, and that he emphasised that I should ensure that I did not take more than the four days away from work.

I believed the security officer and I immediately left for the Eastern Cape.

...

On 20 of February 2009, I was supposed to resume work at 15H30. Whilst at home and before I could be due to resume work [my] colleague called Abinaar brought me a document to the effect that I should attend work on 8 April 2009. Abinaar told me that the manager, Johannes, who was the one who had given in the document, and that I should not go to work until 8 April 2009.[5]

[11] The glaring inconsistencies in the versions placed before the court on affidavit by the applicant are irreconcilable. This is exacerbated inter alia by the apparently intentional misrepresentation of firstly the contents of the letter advising the applicant of his disciplinary enquiry. The versions the applicant offers for not returning to work before 8 April 2009, despite having returned from the Eastern Cape on 19 February 2009, and that the letter expressly suspended him alternatively that the bearer of the letter told him

not to return. The letter however quite obviously makes no mention whatsoever of any suspension let alone the fact that it is dated 2 April 2009. Secondly the explanation provided in one of the affidavits that before leaving for the Eastern Cape the third respondent had approved his leave. The third glaring of this intentional misrepresentation concerns the applicant’s submissions regarding the provisions of the third respondent’s disciplinary code in respect of the suggested sanction.

[12] There can be no doubt that the applicant progressively sought to present what he obviously believed to be a new and improved version of his explanation for his absence during the course of the pleadings, in the vain hope that this would enhance his chances of succeeding in reviewing the award of the second respondent.

[13] The essence of the applicant’s grounds of review is that the second respondent did not take into account his explanation regarding his absence. The third respondent had presented evidence to the effect that the applicant had left work on 13 February 2009 and had returned only on 8 April 2009 to attend the disciplinary enquiry. In addition, the third respondent presented evidence that the disciplinary code provided for dismissal in circumstances where an employee had been absent in excess of five days without permission.

[14] In order to demonstrate the award of the second respondent is reviewable, the applicant offers a variety of irreconcilably different explanations on affidavits. The clear fabrication of aspects of his explanation and the embellishment thereof lead to the conclusion that the applicant had no credible explanation whatsoever for his absence from work from 13 February to 8 April. It is incumbent upon an applicant approaching this Court to do so with clean hands and take the court into his confidence. This the applicant has not done.

[15] It is so that the second respondent’s award is brief but so was the evidence. The facts of the matter as evidenced by the record and bundle of documents clearly suggest that the award of the second respondent is not only not reviewable but correct.

[16] In the circumstances, I am not persuaded that the applicant has established that the second respondent’s award is reviewable and I accordingly make the following order:

a. The applicant’s application is dismissed;

b. There is no order as to costs.

_______

D H Gush

JUDGE

APPEARANCES

FOR THE APPLICANT:

M E S Makinta; E S Makinta Attorneys

FOR THE THIRD RESPONDENT: G S C Lee; Snyman Attorneys

[1] Award paragraph 6.

[2] Transcript page 6 line 14.

[3] Founding affidavit Pleadings page 4 paragraph 8.

[4] Supplementary affidavit pleadings page 15 paragraphs 8 to 14.

[5] Pleadings extended supplementary affidavit pages 66 to 69 paragraphs 31 to 47.