Sithole v Commission for Conciliation Mediation and Arbitration and Others (JR845/2021) [2024] ZALCJHB 453 (18 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR845/2021

In the matter between:

NONHLANHLA OCTAVIA SITHOLE Applicant and COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION First Respondent COMMISSIONER NADIA SITHOLE Second Respondent ENVIROSERV WASTE MANAGEMENT (PTY) LTD Third Respondent

Heard: 4 July 2024

Delivered: 18 November 2024

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 18 November 2024.

JUDGMENT

Baloyi, AJ

Introduction

[1] This is an application in terms of which the applicant seeks an order to review and set aside the arbitration award issued by the second respondent (the commissioner) acting under the auspices of the first respondent. The commissioner found that the dismissal of the applicant was substantively fair.

[2] The application is opposed by the third respondent.

Background facts

[3] The facts of this matter are hardly complicated. The applicant was employed by the third respondent as a credit controller from 1 June 2016. The applicant earned a monthly salary of R 30 244,00 per month at the time of her dismissal.

[4] As a credit controller, the applicant’s duties involved dealing with accounts reconciliation and interfacing with customers.

[5] During mid-September 2020, the applicant fell sick and was booked off, and was supposed to return to work on the 1 of October 2020. The applicant did not return to work on the 1 of October 2020, instead, the applicant decided to send an email to the National Employee Relations Manager, Mr Lazolo Madikizela in which she complained about intimidation, harassment and bullying she allegedly experienced at work. The applicant did not report or send the email of bullying or intimidation to her supervisor Ms Nick Needham (Needham).

[6] Needham as the applicant‘s supervisor had sent various emails to the applicant on the 1, 2, 5 and 6 October 2020 enquiring on the whereabouts of the applicant since she was absent without leave.

[7] The applicant returned to work on 8 October 2020 and admitted that she was absent from work without leave.

[8] On the 14th of October 2020, the applicant filed a formal grievance complaining of unfair treatment including bullying, intimidation, and harassment at work. The hearing took place on the 19th of October 2020. The grievance was found to have no merit.

[9] On the 29th of October 2020, the applicant was charged with one count of being absent from work for 5 days without leave during the first week of October 2020. It was later discovered that 7 October 2020 was a national strike day and the charge was amended to four days instead of 5 days.

[10] The disciplinary hearing took place on the 6th of November 2020. The applicant was found guilty as charged and a sanction of dismissal was imposed.

[11] The second respondent arbitrated the dispute and found that the dismissal was procedurally and substantively fair.

The commissioner‘s award and grounds of review

[12] The applicant’s ground of review is that at the hearing before the commissioner, the commissioner nodded when the third respondent

was stating its case and when the applicant stated or presented her case, the commissioner gave an awkward attitude and showed no interest in the applicant’s facts.

[13] The applicant contends that she was intimated which resulted in her fear of going to work on the four (4) days she was absent. The applicant further contends as a ground of review that the commissioner misrepresented the facts of the hearing on the given

award.

[14] The relevant passage in the award dealing with guilt are these:

‘31. The applicant admitted that she knew that the policy required her to inform her supervisor of her absence in her own defence she argued that she communicated with ER Manager and the union official because she feared contacting her manager. The applicant’s defence does not hold any water as filing a grievance does not mean the applicant must not report for duty and further flaunt the policy of the company.’

Analysis of the applicant’s grounds of review

[15] I appreciate the fact that the applicant prepared her papers and represented herself in court. I must mention from the onset that the applicant has not set out the grounds for the review of the commissioner‘s award.

[16] The issue that had to be decided by the commissioner was whether the dismissal of the applicant was substantively fair regarding her absence from work for four consecutive days without authorisation. The applicant was not dismissed for laying a grievance, in fact, her grievance was heard and found to have no merit. The grievance is completely divorced from the applicant’s dismissal for absence from work without permission.

[17] It is clear that the applicant decided to stay at home and not communicate with her immediate supervisor about her inability to

return to work on 1 October 2020. It is not the applicant’s case that she was still sick at that time. The arbitrator’s

finding is thus reasonable. The applicant was contacted for almost three days by her immediate supervisor and she did not return her calls or emails. Her conduct was in my view deliberate.

[18] In Malimba v Commission for Conciliation, Mediation and Arbitration and Others[1], this Court had the following to say where an employee was absent for one day without permission:

‘[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.’

[19] The grievance that the applicant filed could not in all respect prevent her from returning to work on 1 October 2020. The applicant‘s

failure to return calls or even to call her immediate supervisor in my view counts against her.

[20] Accordingly, there is no basis for this Court to interfere with the commissioner’s award.

[21] I further had regard to the requirements of the 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.

[22] Accordingly, the following order is made.

Order

1. The application to review and set aside the arbitration award issued by the second respondent under case number GAJB25006-20 dated 12 April 2021 is dismissed.

2. There is no order as to costs.

F.I. Baloyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: In person For the Respondent: Adv. Modise Shakung Instructed by: Bester and Roodie Attorneys

[1] [2021] ZALCJHB 2.