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South Africa Judgment

Labour Court Johannesburg

Mohale v Formica South Africa (JR1574/03) [2006] ZALCJHB 2 (24 November 2006)

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Source document

01

Holding and result

The court held that the employer did not unequivocally waive its right to dismiss the applicant by making an offer of reinstatement. The applicant's refusal to accept the offer meant no agreement was reached. The employer's actions in entering conciliation did not amount to abandonment of its disciplinary rights. The applicant's conduct was found to be fraudulent, as he claimed sick leave for compassionate reasons using a medical certificate that described his wife's condition. The arbitration award confirming the dismissal was found to be unassailable and the application for review was dismissed with costs.

Court disposition

Application for review dismissed with costs.

Orders

  • The application for review is dismissed with costs.

02

Material facts

Parties

Masilo Alfred Mohale

Applicant Counsel: Mr West

Formica South Africa

Respondent

03

Procedural history

  1. Posture

    Review Application / Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant, represented by Mr West, argued that the employer waived its right to dismiss by making an offer of reinstatement subject to a final written warning and forfeiture of pay. The offer implied the employment relationship had not broken down and that new evidence had emerged. The applicant contended that the employer's acknowledgment of a poor relationship with his supervisor was relevant and that the dismissal should not stand.
Respondent
The respondent maintained that the applicant's conduct was fraudulent, as he claimed sick leave using a medical certificate that described his wife's condition. The employer entered into conciliation but did not unequivocally abandon its right to dismiss. The respondent argued that the applicant's refusal to accept the offer meant no agreement was reached, and the disciplinary action remained valid.

05

Court’s reasoning

  1. 01

    General principles of labour law

    Waiver or abandonment of disciplinary rights must be unequivocal to be effective.

  2. 02

    General principles of labour law

    Constructive conciliation does not preclude an employer from proceeding with disciplinary action unless rights are clearly abandoned.

06

Ratio, limits and disposition

Ratio decidendi

The court held that the employer did not unequivocally waive its right to dismiss the applicant by making an offer of reinstatement. The applicant's refusal to accept the offer meant no agreement was reached. The employer's actions in entering conciliation did not amount to abandonment of its disciplinary rights. The applicant's conduct was found to be fraudulent, as he claimed sick leave for compassionate reasons using a medical certificate that described his wife's condition. The arbitration award confirming the dismissal was found to be unassailable and the application for review was dismissed with costs.

Obiter and limits

  • Constructive and meaningful conciliation should not be discouraged by holding that an employer waives disciplinary rights merely by entering into settlement discussions.
  • The distinction between sick leave and compassionate leave is material, especially where the medical certificate does not support the claimed leave type.

Court disposition

Application for review dismissed with costs.

  • The application for review is dismissed with costs.

Source and reliance status

Labour Court Johannesburg

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Judgment reading view

Judgment text

The complete available source text.

Source document

Labour Court Johannesburg

Judgment

[2006] ZALCJHB 2

IN THE LABOUR COURT OF

SOUTH AFRICA

BRAAMFONTEIN

CASE NO: JR1574/03

DATE HEARD AND DELIVERED: 2006-11-24

NOT

REPORTABLE

In the matter between:

MASILO

ALFRED MOHALE Applicant

And

FORMICA

SOUTH AFRICA Respondent

J

U D G M E N T

PILLAY D, J: In this review the applicant seeks to set aside the award in which the second respondent, the Commissioner confirmed his dismissal. The applicant had tendered medical certificates issued by an obstetrician and gynaecologist in support of his claim for sick leave. He was dismissed as his conduct was regarded as fraudulent.

His union intervened and negotiated his reinstatement on certain terms. His misconduct was to be reduced to the lesser offence of not adhering to the company policy on compassionate leave for which he would receive a final written warning. He was also not to be paid for a month. These terms were framed as an offer which the applicant had to accept before they could be implemented. The applicant refused to sign the offer. No agreement accordingly came into place.

Mr West, counsel for the applicant, submitted that the third respondent, the employer had waived its right to dismiss the applicant once it made the offer. The terms of the offer implied that the relationship had not broken down and that “additional

evidence”, which had not been available when the decision was taken to dismiss, had since come to light. The additional

evidence referred to, namely an acknowledgement by the employer that the applicant did not enjoy a good relationship with his supervisor,

was evidence quite unrelated to the fraudulent nature of the applicant’s conduct.

The picture that emerges is that the employer entered into constructive conciliation with the applicant and his union. In doing so it did not abandoned its rights to dismiss the applicant. Abandonment or waiver of the right to take disciplinary action has to be unequivocal to be effective. If the Commissioner or the Court were to hold otherwise it will be a disincentive to constructive and meaningful conciliation in misconduct cases.

In this award the Commissioner recognises the applicant’s conduct as fraudulent. He was paid sick leave when, on his version, he should have claimed compassionate leave as he took the leave to take care of his wife. The medical certificate had been issued in his name but had described his wife’s condition.

A lesser amount was paid for compassionate leave than for sick leave. Furthermore, the leave taken had coincided with long weekends. In all the circumstances the award is unassailable and the application for review is dismissed with costs.

---oo0oo---

______

Pillay D, J

7 February 2007

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