IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG

REPORTABLE

CASE NO: JR2784/08

In the matter between:

JAMMIN RETAIL (PTY) LTD APPLICANT

and

NOXOLO PORTIA MOKWANE 1^ST RESPONDENT

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION 2^ND RESPONDENT

COMMISSIONER ROBERT MUDAU 3^RD RESPONDENT

JUDGMENT

Molahlehi J

Introduction1

1. This is an application in terms of which the applicant seeks an order reviewing the arbitration award of the third respondent (the commissioner) issued under case number GAJB 28458/08 and dated 28^th October 2008. In terms of that arbitration award the commissioner found the dismissal of the applicant to have been procedurally unfair and ordered compensation.

Background facts

2. The first respondent who is referred as the “employee” for ease of reference in this judgment was employed as a sales manager by the applicant prior to her dismissal on the 26^th August 2008. It is common cause that on the 8^th August 2008 the employee together with two other employees flew to Cape Town to attend to the applicant’s business.

3. According to the applicant the employee was supposed to be in Cape Town until the 12^th August 2008, and thereafter to fly to East London and stay there depending on a meeting she was to have with the applicant’s clients. The employee disputed that she had to go to East London from Cape Town and contend that she had fly back home because she had sick child.

4. It was further the version of the applicant that it was brought to its attention that the employee flew back to Johannesburg earlier with out stating the reason thereof and that she reported for duty only after she was telephonically contacted by Ms. Faith Buyana on the 25^th August 2008. The employee was again telephonically contacted by the applicant on the 2^nd September 2008, to enquire about her continued absenteeism. After this telephone enquiry about the employee reported for duty immediately. 

5. The employee concedes having received a call from Mr Sothomela of the applicant requiring her to report at the workplace which she did. She further states that before going to the workplace she reported at the police station and requested that one of the employees of the applicant, Ms Ntwanampi should be warned against assaulting her and that the police in compliance with this request did phone the applicant about the alleged thread of assault.

6. On arrival at the workplace, Sothomela offered the employee her salary and indicated that her employment with the applicant was terminated because his girlfriend was no longer willing to work with her after the incident in Cape Town. There was also a discussion during that meeting about the employee returning the stock of the applicant which the applicant had distributed to the agents.

Grounds for review and the award

7. The applicant contends in its grounds for review that the commissioner failed to comprehend or apply his mind to the concept of abscondment. It was further contended on behalf of the applicant that the commissioner failed to take into account clause 13.2.4 of the contract of employment of the employee which expressly states that staying away from work for a period of more than five consecutive work without informing your superior amounts to absconding and that the employment contract would be automatically terminate. The other complaint of the applicant is that the commissioner failed to apply his mind to the evidence which was presented during the arbitration proceedings.

8. The commissioner in his arbitration award accepted that the termination of the employment of the employee was because she had absconded from work. The commissioner found the dismissal to have been substantively fair but procedurally unfair.

Evaluation

9. The standard for evaluating whether or not the decision of a commissioner is reviewable, as is the case in the present instance, is that of a reasonable decision marker. The enquiry to be conducted in this respect is, as enunciated in Sidumo and & Another v Rustenburg Platinum Mines & Others (2007) 12 BLLR 1097 (CC), whether the conclusion reached by the commissioner is one which a reasonable decision maker could not reach.

10. In the present instance it seems to me that the reasonableness or otherwise of the arbitration award has to be evaluated in the context of assessing the application of the principles governing the termination of a contract of employment through absconsion.

11. In terms of section 188 of the Labour Relations Act 66 of 1995 (the LRA) a dismissal is unfair if the employer fails to prove that the dismissal was for a fair reason related to the employee’s conduct or capacity and was effected in accordance with a fair procedure. The onus to show that the dismissal was fair in terms of section 192 of the LRA rests with the employer.

12. The applicant contended in its heads of argument that the commissioner ought to have found that because the contract was terminated ex contractu, it could not be said that the termination was unfair. In this respect the applicant relied on the authority of the dictum in Phenithi v Minister of Education & Others (2006) 9 BLLR 821 (SCA).  The present case is distinguishable from the Phenithi in that in that case the Court was concerned with the provisions section 14(1) (a) and 14(2) of the Employment of Educator’s Act 76 of 1998 (the Act).

13. In terms of the provisions of section 14 of the Act the employment of an employee who is absent from work without authority for a period in excess of 14 (fourteen) days is deemed to have been terminated by the operation of the law. The authorities are in agreement that such a termination is not a dismissal as the contract is not terminated by virtue of the decision of the employer but the operation of the law. In other words the employment contract is deemed to have been terminated due to absence from work by the employee and not the decision of the employer. This is approach is generally applicable in the public sector and the same does not apply in the private sector. Similar provisions are found in terms of section 17(5)(a) and (b) of the Public Service Act 103 of 1994.

14. In the private sector the leading authority for the approach to be adopted when dealing with absconsion from work is the South African Broadcasting Authority v CCMA (2002) 8 BLLR 693 (LAC) at para [15]  where it was held that:

“[15] Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty.”

15. The finding of the Court on the facts in the SABC supra is also apposite the present matter. In that regard the Court held that:

“[16] The third respondent was traceable for the purpose of a disciplinary hearing, had the appellant decided to hold one. Both letters of 1 December and 4 December 1997 were hand-delivered to and signed for by the third respondent himself. The appellant knew where to find him. There was no reason why a disciplinary enquiry could not be convened in keeping with the appellant’s own disciplinary procedure. The third respondent’s failure to heed the appellant’s written warning to report for work on specified dates or else run the risk of being deemed to have deserted his post, did not excuse the appellant from holding a disciplinary hearing prior to the third respondent’s dismissal. Accordingly, the commissioner was correct in concluding that the dismissal was procedurally unfair and the court a quo was also correct in refusing to interfere with that finding.”

16. In my view the commissioner in the present matter cannot be faulted for the conclusion he reached. It is not a conclusion which can be said to be unreasonable. In arriving at the conclusion as he did the commissioner gave brief reasons in line with the provisions of section 138(7) of the LRA. The applicant knew where to find the employee and in fact did contact her, called her in and terminated the contract. The principle of fairness dictates that the applicant ought to have arranged for a disciplinary hearing when the employee reported for work after she was telephonically contacted and reported at work.

17. It is accordingly my view that the commissioner in the present matter did not commit a reviewable irregularity in finding that the applicant failed to afford the employee a fair hearing before terminating her employment. The conclusion reached by the commissioner was accordingly correct in law and therefore the applicant’s application review the award stand to fail. I see no reason in the circumstances of this case why in both law and fairness, costs should not follow the results.

18. In the premises the applicant’s application to review the arbitration award of the third respondent is dismissed with costs.

_______________

Molahlehi J

Date of Hearing : 23^rd October 2009

Date of Judgment : 22^nd December 2009

Appearances

For the Applicant : Adv S Matime

Instructed by : Mabhoko Mathole Attorneys

For the Respondent: Mr M Molebaloa of M.S. Molebaloa Attorneys