South Africa: Labour Court

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2. The applicant is also seeking condonation of the late filing of the review application which application was not opposed by the third and fourth respondents (the respondents). The respondents’ late filing of the answering affidavit was unopposed.

The background facts

3. The fourth respondent was employed by the applicant as a sales representative. In February 2004 he was arrested by the South African Police Services and was unable to work. The applicant became aware of his arrest in March 2004. The applicant terminated his contract of employment. His salary and benefits were also simultaneously terminated and the applicant appointed someone to replace him. The fourth respondent was denied bail and remained in custody for about 15 months. He was released from prison on 8 June 2005. On 24 June 2005 the applicant convened a confrontation meeting where he was given an opportunity to make representations. He contended that he was incarcerated which was a bar for him to communicate his whereabouts to the applicant within the stipulated period or within a reasonable time. The termination of his employment was confirmed on 4 July 2005.

4. The fourth respondent felt aggrieved with his dismissal and referred a dispute to the first respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA) for conciliation and after conciliation had failed to arbitration.

The arbitration proceedings

5. Three witnesses testified for the applicant at the arbitration proceedings. Mr Ramwedzi testified that he was a human resources practitioner stationed in Soweto. The fourth respondent was absent from work. A letter was sent to him requesting that he return to work or contact his supervisor. He went to his home to determine where he was. It was established that he had been arrested. The applicant then stopped paying his salary. After the fourth respondent’s release, he was sent a letter advising him to attend a confrontation discussion. This was to allow him to give his explanation since he had been absent from work for about 15 months. He had advised the third respondent of the date of his confrontation hearing but did not attend on the day in question. He then established that he was in the Transkei. He agreed with the trade union representative that it was difficult to contact him as he had been absent before the incident and that a confrontation meeting would take place on his return. The fourth respondent returned on 23 June 2005 and a confrontation discussion took place on 24 June 2005. The outcome of the hearing was given on 4 July 2005. It was impossible for the fourth respondent to report for duty while he was imprisoned. In such a case, the applicant waits for him to return to work and then has a hearing to give him an opportunity explaining his absence. His explanation was insufficient and unsubstantiated. He pleaded not guilty. He was found guilty because he had breached his contract of employment and was allowed to tender mitigating factors. He was absent from work for more than seven consecutive days. Since he was absent for 15 months, the applicant could not keep his position open indefinitely and was replaced. His manager had reported the fourth respondent absent and Ramwedzi then followed up the matter. The matter did not progress to a formal hearing. Where an employee does not plead guilty, the matter then escalates to a formal hearing which did not happen in this instance.

6. The applicant’s second witness was Mr Motshwene, the fourth respondent’s supervisor. He testified that he was aware that the fourth respondent had not reported for work since the middle of January 2004. In February 2004 he had received a telephone call from the fourth respondent and a police officer showing that he had been arrested. The fourth respondent was notified about a confrontation hearing in a letter dated 21 June 2004 notified him of a confrontation hearing. This was the second letter sent since he had been absent from work from mid January 2004. The fourth respondent had been in and out of courts during 2003 and 2004. If an employee was absent from work for two consecutive days without notifying the employer, he would then send other employees to ascertain the whereabouts of the said employee. He had sent a Mr Makara to establish where the fourth respondent was. He then reported the matter to his manager and his manager would then escalate the matter to human resources. The fourth respondent disappeared in the middle of January 2004 and he sent Protective Services to trace him. This process of establishing his whereabouts took approximately three weeks.

7. The applicant’s third witness was Mr Kekana. He was the Soweto Area manager responsible for the Soweto area. He only became aware of the case when the fourth respondent returned to work and attempted to report for duty in June 2005. He asked whether the fourth respondent had informed his supervisor of the arrest and when he did not receive further information, a letter of confrontation was sent to him. The confrontation discussion took place. The fourth respondent pleaded not guilty and was afforded an opportunity to explain his absence. Mitigating factors were considered and a decision to terminate his services was then taken. In terms of the applicant’s disciplinary code and procedure a formal disciplinary hearing should have taken place after the fourth respondent had pleaded not guilty. He said that because it was the case that he was absent without leave, the matter would not ordinarily have proceeded to a formal hearing. He was not aware that the fourth respondent had contacted his supervisor and informed him that he had been arrested. According to Kekana he had asked his supervisor if he had been contacted about his arrest, no definitive answer was forthcoming. He accepted that the fourth respondent was arrested on 15 March 2004 and that although the date was not reflected on the notification letter, an earlier date was reflected and this was the date that he stopped coming to work. Human resources informed him that the fourth respondent had not reported for duty since 27 February 2004.

8. The fourth respondent, S H Njawuza testified that he commenced employment with the applicant on 1 December 1996 as a service representative. He was arrested on 15 March 2004. He denied being absent from work on 27 February 2004. He had informed the applicant that he had been arrested on 16 March 2004. He was denied bail. He was released on 8 June 2005. He denied that he was absent without leave from 27 February 2004 until 10 June 2005. He had been arrested previously for failing to pay maintenance and for alleged car theft. He attended the confrontation meeting and explained that he had been imprisoned, was acquitted and released. He gave the hearing a statement from the clerk of the court to that effect. When he appeared in court, the employees of Protective Services department would be present. He reported for work and was instructed to return home. He was at home for approximately 2 to 3 weeks. He denied that he was absent from the middle of January 2004 and that he was frequently absent from work. He confirmed that he returned to work fifteen months later. He believed that the applicant was aware of his predicament as they sent employees from Protective Services to observe the court proceedings. He believed that his dismissal was unfair as he did not cause the arrest and subsequent imprisonment upon himself.

The arbitration award

9. The commissioner said that the issue before her was whether the dismissal of the fourth respondent was fair. A fundamental element of a contract of employment is that the employee tenders his services for remuneration at the employer’s business. If the employer fails to pay the employee this is considered a breach of the employment contract. If the employee fails to tender his services the contract of employment is breached. A supervening impossibility occurred. The question however is whether because of the supervening impossibility of performance a breach in the employment relationship occurred.

10. The commissioner said that the applicant’s conditions of employment state that “an employee who fails to report for the reason of his absence without leave from duty within seven consecutive calendar days, unless physically prevented from doing so, is deemed to have left the service of Eskom without permission”. The evidence before her indicated that the fourth respondent was indeed arrested on 15 March 2004 and spent 15 months in jail. She accepted the documents tendered in that regard namely the charge sheet and the annexure describing the charge in more detail. The evidence indicated that the fourth respondent was denied bail due to the seriousness of the charge and was acquitted. The applicant had ascertained the whereabout of the fourth respondent. When he was released, a hearing was held to establish the reasons for his absence. She accepted his version that he contacted the applicant and informed them of his predicament.

11. The commissioner said that in terms of the common law and jurisprudence that if either party was unable to perform his obligations under the contract or was unable to perform his obligations for a period, which was unreasonable, as far as the employer is concerned, the other party was entitled to terminate the contract on the ground of such non-performance. Jurisprudence indicated that where an employee was sentenced to a long period of imprisonment the employer could cancel the contract if the employee was afforded an opportunity of providing an explanation for his incarceration. This approach must be balanced with the current legislation and industrial relations practices. The Act encourages employers and employees to regulate their terms and conditions of employment. There is nothing prohibiting the parties from specifying terms and conditions of employment that are more beneficial than the provisions of the Act or the Basic Conditions of Employment Act or jurisprudence. The Act indicates that agreements reached by parties take precedence over the Act.

12. The commissioner said that in this instance the applicant’s conditions of employment state that a contract of employment would terminate if the employee fails to report for seven consecutive calendar days. The clause also states, “.... unless physically prevented from doing so .....” creates an exception to the rule. The interpretation of this phrase suggests that if the employee was unable to report for duty because he was ill or in jail, this section would not apply. This meant that the fourth respondent did not abscond or terminate his services with the applicant. The evidence showed that the fourth respondent was incarcerated for 15 months and could not report for duty. It was apparent that the fourth respondent was physically prevented from reporting for work. This was a reasonable explanation for his absence considering that he was denied bail. It was impossible for him to perform his duties.

13. The commissioner said that fifteen months was an unreasonable length of time for the applicant to hold the fourth respondent’s position open. She accepted that the operational requirements of the applicant necessitated that this position be filled. Although the applicant was entitled to fill the fourth respondent’s position, this did not have to result in the termination of the fourth respondent’s employment. The applicant could have employed someone on a fixed term contract until the situation was resolved, especially as they were aware of the whereabouts of the fourth respondent. The commissioner found that the dismissal of the fourth respondent was an inappropriate sanction.

14. The commissioner found that the applicant had flouted its own procedures after it had failed to have a formal hearing. This was not sufficient to render the procedure followed by the applicant as materially defective since the fourth respondent had ample opportunity of presenting the explanation. The Act merely states that an employee should be aware of the allegation against him and that he must be given an opportunity of presenting his case. The meeting does not have to be a formal one.

15. The commissioner found that due to the length of time that had elapsed, for which neither party was responsible, retrospective reinstatement was not an appropriate remedy. Reinstatement without back pay and with benefits was an appropriate remedy.

The grounds for review

16. The applicant contended that the commissioner committed gross misconduct, exceeded her powers accorded to her by the Act, rendered an award which is not justifiable in relation to the reasons given for it and failed to apply her mind to the documentary evidence placed before her.

The application for condonation

17. The arbitration award was served on the applicant on 17 March 2006. It should have been filed on 28 April 2006. The application for review was filed on 31 August 2006. It was filed four months late. This is a lengthy period. The application for condonation was filed on 16 November 2006.

18. The explanation tendered for the late filing of the review application was as follows. The applicant has in place a structure called the review committee. The objective of this structure is to advise the applicant on whether or not an arbitration award similar to the one rendered by the commissioner could be taken on review or be complied with by the applicant. The review committee is constituted by a chairman, the corporate industrial relations convener, the legal department and representative of each division of the applicant. The review committee is an ad hoc committee and all members are full time employees of the applicant employed in different capacities. Accordingly, the committee meets as and when it is necessary and more importantly depending on the availability of each member. When it is properly constituted, the review committee discusses amongst other things, all the arbitration awards issued against the applicant which should either be complied with and which to challenge on review. In order for the matter to be considered, the human resources or the officer who represented the applicant during the arbitration proceedings must be present at the meeting.

19. On 19 May 2006 the review committee was scheduled to meet and discuss the outstanding legal issues. The deponent to the founding affidavit had represented the applicant at the arbitration proceedings and inadvertently, the coordinator sent the invitation to another labour relations officer who had appeared at a different arbitration. He did not attend the meeting and as a result, no decision could be made without his input about the commissioner’s award. A further meeting was scheduled for 21 June 2006 and due to the non-availability of certain members of the committee the said meeting was cancelled. Eventually all members of the committee became available on 10 August 2006. The matter was discussed. Given the legal questions that arose in the matter, the committee resolved that legal opinion be sought regarding the prospects of success. The attorneys of record were instructed to furnish an opinion about the delay in bringing the application to court. The attorneys of record advised that a condonation application was extremely necessary in the event that the applicant pursued the review application. The committee was only constituted on 17 August 2006 when it was resolved that the attorneys should be instructed to proceed with the review application which decision was communicated to the applicant’s attorneys of record on 21 August 2006. The attorneys went on to prepare the review application. The delay in launching the review application was not due to any deliberate and/or negligent disregard of the rules of this Court.

20. There is simply no explanation why the application for condonation was not filed with the review application or shortly after that. It is trite that the application for condonation should have been filed when the applicant realised that there was a need to do so. They had already in August been advised by their attorneys of record of the need to do so.

21. The explanation for the late filing of the review application lies squarely at the doors of the applicant. There is simply no explanation given why the review committee was not convened within the six-week period of the arbitration award. It appears from the explanation that there was set days for the review committee to meet. No explanation was given why the said committee could not be convened earlier. There was simply no sense of urgency. The attitude is that an application would be made and such application would as a matter of course be granted.

22. I am therefore satisfied that the applicant’s delay in filing the review application was not adequately explained. Since the explanation is weak and in some instances there is no explanation at all, it strictly speaking does not become necessary to consider the issue of prospects of success. The application stands to be dismissed on this ground alone.

The prospects of success and review application

23. It is common cause that the fourth respondent was employed by the applicant as a service representative in the Soweto Customer Services Area, Dobsonville WIC since 1 December 1996. He was arrested on 15 March 2004 and notified the applicant about his arrest. He was released from jail on 8 June 2005 after he was acquitted. He reported for work on 9 June 2005 and was subsequently sent home by the applicant. The applicant was aware that he was in custody from 15 March 2004 to 8 June 2005. The fourth respondent was given a notice to attend a confrontation discussion in terms of the applicant’s disciplinary code and procedure which was scheduled for 23 June 2005. It informed him that it was alleged that he had committed misconduct relating to the applicant’s disciplinary code in that in terms of misconduct 14, he was absent from duty without leave from 27 February 2004 to 10 June 2005. The confrontation hearing was eventually held on 4 July 2005. The fourth respondent was advised in a letter dated 12 July 2005 that he had committed misconduct 14 which is absent from duty without leave for the period referred to above. The appropriate penalty after mitigating and aggravating circumstances were considered was summary dismissal from the date that he was absent without leave.

24. Ms Baloyi, who appeared for the applicant contended that the fourth respondent was charged with misconduct 14 which is that he was absent without permission. He was not charged with clause 11.3 which provides that “an employee who fails to report the reason for absence without leave from duty within seven consecutive calendar days, unless physically prevented from doing so, is deemed to have left the service of Eskom without permission. The contract of service between Eskom and the employee is deemed to have terminated on the last day on which the employee worked for Eskom and the employee forfeits all claim to service benefits to which the employee may have been entitled to in terms of these conditions of service, except if determined otherwise by law”. Ms Baloyi contended that the commissioner erred when she considered the provisions of clause 11.3. I accept that the fourth respondent was charged with being absent without permission in terms of clause 14. It is clear from the confrontation charge that it refers to clause 14. The parties in their heads of argument filed at the arbitration proceedings also understood that to be the case. Once the fourth respondent gave an explanation about his absence at the confrontation meeting which the applicant did not accept, it had to charge him formally in terms of the disciplinary code and procedure. His explanation, that he was physically prevented from reporting for work, is recognised in the applicant’s code and procedure more importantly clause 11.3. The commissioner did not say that the fourth respondent was charged in terms of clause 11.3, but referred to this as a defence that might be raised by an employee. Her reference to clause 11.3 must be seen in this context. It is common cause that the fourth respondent notified the applicant that he had been arrested and kept the applicant informed of developments. It is therefore not a case that the applicant did not know about the whereabouts of the fourth respondent. The fourth respondent clearly raised a defence of supervening impossibility. The onus was therefore on him to prove that the failure to perform in terms of his contract of employment was as a result of a superior force, in this instance the SAPS, for which he was not to blame.

25. Since the fourth respondent was acquitted after he was arrested, it is not clear what misconduct he was guilty of since he was not the cause of his incarceration. It was a factor beyond his control and it could therefore not be said that he had been absent without permission. He was not the author of his own misfortune. See Trident Steel (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & Others (2005) 26 ILJ 1519 (LC). Revelas J at page 1522 of the said judgment states what alternatives an employer has in such cases. This is equally applicable to the applicant.

26. It is trite that the decision that the commissioner arrived at must be one that a reasonable decision maker would have made. In this regard see Sidumo and Another v Rustenburg Mines Ltd and others (2007) 28 ILJ 2405 (CC). I have carefully considered the commissioner’s arbitration award. The commissioner as required in terms of section 138(7)(a) of the Act, had to give brief reasons for the award that he made. This is precisely what the commissioner did. The commissioner’s award is well reasoned. She dealt with all the issues that arose in the matter. It can therefore not be said that the commissioner committed any reviewable irregularity. Her decision is one that a reasonable decision maker would have made. Her award is lawful, reasonable and procedurally fair. She had decided the issue on the basis of his own sense of fairness. It is reasonable and meets the constitutional requirement that an administrative action must be reasonable.

27. It was contended by the applicant that the order for reinstatement with no loss of benefits is not entirely clear and that the matter should be reviewed and referred to the commissioner to deal with this issue. I do not agree since nothing prevents the applicant to approach the commissioner in terms of section 144 to clarify issues that it might have about the award.

28. The applicant’s has failed to demonstrate that it has any prospects of success.

29. Dealing with the commissioner’s findings on why she held that the dismissal was not procedurally unfair is not necessary since the fourth respondent did not file a counter review application.

30. The third respondent had applied for condonation for the late filing of the answering affidavit. The application was not opposed. I am satisfied that a proper case was made by the respondents for condonation which application should be granted.

31. The applicant’s application for condonation and review stands to be dismissed.

32. There is no reason why costs should not follow the result.

33. In the circumstances I make the following order:

33.1 The respondents’ condonation application for the late filing of the answering affidavit is granted.

33.2 The condonation and review applications are dismissed with costs.

FRANCIS J

JUDGE OF THE LABOUR COURT OF SOUTH AFRICA

FOR THE APPLICANT: MS BALOYI INSTRUCTED BY MASERUMULE INC

FOR 3RD & 4TH RESPONDENTS: L MALAN INSTRUCTED BY KD MAIMANE INC

DATE OF HEARING : 24 JUNE 2008

DATE OF JUDGMENT : 1 JULY 2008