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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

case no: JR 2449/14

In the matter between:

NUM  obo  ROBERT  NEFOLO-VHODWE                                                                  Applicant

 and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION                                                                   First Respondent

COMMISSIONER QUENNDY GUNGUBELE N.O.                                    Second Respondent

ELIZABETH MOILOA                                                                                     Third Respondent

Heard:            7 November 2016

Delivered:     7 November 2016

JUDGMENT

CELE J

Introduction

[1] The application before me is one brought in terms of section 145 of the Labour Relations Act 66 of 1995, hereafter referred to as the Act, where the applicant seeks to review and set aside an arbitration award in this matter, dated 29 April 2014.  The award was issued by the second respondent.  The application is opposed by the third respondent in its capacity as the erstwhile employer of the member of the applicant.

[2] The applicant in this instance is the union, NUM, acting on behalf of its member, the erstwhile employee of the third respondent, the employee being Mr Robert Nefolo Vhodwe.

Background facts

The brief history of background facts of this matter.  The employee was in the employment of the third respondent.  He held the position of a senior operator in the company at the material times. He had various occasions for the year 2011 right through to 2013 that he did not present himself at work.  He would then report that he was indisposed.  That he had taken ill. 

[3] There are instances when the employer would request him to produce medical certificates to support the averment that he was unwell. In some instances, such medical certificates were produced, as at the time of the request or soon thereafter.  In other instances they were never produced as and when requested. Some of these were produced in a bulk,that is together, only on one instance. This condition of the employee went on until the point when the company decided to refer him to a specialist. That is, a medical specialist, a doctor.  The employee was then operated upon and thereafter he was discharged by Dr Groenewald who felt that the operation was successful, and that he was then fit to proceed with his employment. 

[4] However, what then happened is that the employee failed to turn up for work during the period 2 to 5 December, 2013. He was telephoned for this absence, and it appeared that he did say that he had sprained his leg or something to that effect, and he was again asked to produce a medical certificate.  He subsequently did produce the same. The employer reached a point where he decided that its employee was not behaving properly, and it decided to charge him with various acts of misconduct.  There were three of these acts of misconduct that were preferred against him.  He pleaded not guilty to the first, pleaded guilty to the second, but pleaded not guilty to the third.  Evidence was led and he was then found guilty in relation to all three of them.  He was subsequently dismissed. 

[5] He was aggrieved by this dismissal.  He then referred an unfair dismissal dispute for conciliation.   Conciliation failed to resolve it.  He subsequently referred it to arbitration.  It came before the second respondent.  Witnesses were called in by both parties. At the commencement of the arbitration hearing, the commissioner asked what it is that he was to determine.  The representative of the employee indicated that what was to be determined was the fairness – substantive and procedural fairness – of the dismissal of the employee.  No facts were outlined at that very early stage in support of this kind of a bold statement made.  And this I found on pages 4 and 5 of the transcript of the arbitration proceedings. Reads:(to insert this quote)

[6] The dismissal was common cause and therefore the third respondent had to prove the fairness thereof.  It called and led the evidence of four witnesses, being Godfrey Moyo, Stefan Nemaleli, Dennis Groenewald, and Dorcas Mabeba.  The applicant took the challenge by himself, testifying, and he called two witnesses after he had testified, being Alfred Mompalga and Shadrack Nefolo-Vhodwe.  Once all the evidence was led, the commissioner issued the assailed award, and the commissioner described the issue before him, in paragraph 40 of the award in the following terms:

“In my view, the applicant is not disputing the allegations levelled against him but is of the view that it is a case which should have been referred to the Medical Incapacity Committee in terms of their standing agreement with the mine.”

Even in their closing argument, they have argued as follows:

“The categorisation of Robert Nefolo-Vhodwe’s case as a misconduct case rather than a medical incapacity case to be dealt with through the agreement as it has happened with most employees where the NUM was directly involved was a deliberate intention to get rid of him.”

[7] The Commissioner then issued the award in the following two findings.  I find these from paragraph 41 up to 44.  41 reads:

“The respondent’s third witness, Sister Dennis testified that after the applicant was operated by specialists in Polokwane, when he returned to work he was declared fit to work.  She was not challenged on that.  Even the applicant’s first witness, Mr Mapoko testified that he did not have facts upon which to refer the applicant’s case to the Medical Incapacity Committee.  That concession, in my view, proves that it was not a case of medical incapacity, but a case of misconduct.”

42:

“The applicant testified that he was aware of the rule and he considered that he had broken that rule.  It was not the first time he broke that rule.  In some instances he did not only fail to phone his employer that he would not be able to come to work, but also failed to submit his medical certificates when he returned to work.”

43:

“Under the circumstances I am satisfied that substantively the respondent has discharged their onus of proof.”

44:

“With regard to procedure, there is evidence that the applicant was notified of the hearing and was represented at the hearing by a reputable union.  The applicant was afforded an opportunity to be heard.  Therefore, in my view, the procedure that was followed by the respondent was fair.”

Then paragraph 45 reads:

“The dismissal of the applicant was both substantively and procedurally fair.”

[8] These are review proceedings and therefore one has to reflect very briefly on the grounds for review.  These can be summarised or encapsulated into three aspects. The first is that the commissioner failed to apply his mind into conducting a proper enquiry of the issues that served before him.  The second is that the commissioner failed to determine whether or not the company had proved the guilt of the employee.  And thirdly, whether or not the sanctioned imposed was in the circumstances fair.

[9] In relation to the first submission, at the commencement of these proceedings, I did ask Mr Makoti appearing for the applicant to indicate to me where the issues were defined for the commissioner, for it to be said that the commissioner misdirected himself in describing the enquiry that as before him. I do not think Mr Makoti succeeded in showing me the evidence that supported the claim that was made.  I have not been able to find any support in all of the submissions, and in all the evidence before me that the commissioner failed to conduct a proper enquiry.

[10] Paragraph 40 summarises what, at the end of all the evidence, was confronting the commissioner. Indeed, the union was complaining that this employee was treated differently from other employees who were referred to an incapacity committee, and that his matter should not have been dealt with as a misconduct.  That was the real concern that was brought before the commissioner for arbitration. Notwithstanding that, as I also asked Mr Masuku for the third respondent, the commissioner allowed the parties to lead evidence, to prove each and every one of these alleged infractions, counts one, two and three.  He allowed these witnesses to testify on these aspects.  They did testify, and in fact when one reads the transcript there was not much dispute or contestation brought about by the employee in his evidence, really.

[11] All that one can see in the transcript is a serious concern that the employee was not supposed to be disciplined but rather should have been referred to the committee dealing with incapacity. Talking about that, further, by the respondent or the third respondent, to refer the case of the employee to the incapacity committee.  It is clear from the evidence that was led at arbitration that it is in fact the employee or his representative in the form of a union, that normally initiates that referral.

What has happened in the case of the employee is that he would take ill, he would submit his medical certificate at whatever time, and once these are handed in to the proper department they would look into it, and then they would file it.

[12] It depended on what was in the medical certificate, whether or not for instance, the company could trigger the referral of the case to the committee dealing with incapacity of an employee. 

None of the certificates submitted appears to have justified even an initiation by the company to refer the case of the employee to this committee.  As I have indicated, the union also did not initiate this referral, and it appears not having been disputed that it was incumbent on the union to have initiated this kind of a referral.  This is a case therefore, where I am unable to agree with the applicant’s submission that there was an improper diagnosis of the cause or the issue that the commissioner was supposed to deal with.  He correctly dealt with the issue, and in fact he went beyond, by allowing the parties to even prove the allegations.  There is sufficiency of evidence in relation to each of these three counts.

[13] Indeed, I did raise my concern about the counts one and three being somewhat duplicated, but count one is more specific than count three.  In any event, that is not one of the grounds of review raised by the applicant.  I do not think the existence of count one separate from count three has any prejudice to the employee.  There was evidence led in relation to count one, about the incident from 2 to 5 December 2013.  There is evidence led about that.  Count 2, the applicant or the employee did plead guilty, but again, Mr Moyo testified on that.

Count 3 deals with the history and rightly so, this is properly summarised in the appeal record.  In the internal appeal record.      

[14] In as much as one may express concern about why leave an employee not charge from 2011 to 2013, but certain incidents make it permissible for an employer to merely not deal with each incident at a legal time.  Some incidents, such as is the case here, can better be seen by looking at a bigger picture than looking at a single incident when an employee does not comply with the rules.  What is clear about this history is that the company did request on a number of occasions for the production of a medical certificate, and such medical certificates would not be produced timeously. There is a history given through evidence.  And clearly, I am satisfied that there was sufficiency of evidence for the commissioner to accept that there were substantive reasons for the finding of guilt of the employee on the misconduct itself. 

[15] The award does not deal specifically with the sanction.  The commissioner merely finds that, with the reasons given, with the procedure that was fair, that the dismissal was substantively fair. We are not here dealing with an incident of absenteeism over a short period of time.  It was a protracted period of time which made the applicant’s representative ask, ‘But why wait for all these infractions?’  Meaning, it was substantial.  It was taking place over a period of time.  One would understand if it was a case of maybe a single incident, one or two incidents, but there were a series of incidents that were taking place, and we are not dealing again with a matter where one has to determine whether the employee was actually sick or not. 

[16] Even if he was genuinely sick as was demonstrated by a company doctor, he still had to follow the company procedures in the handling of the medical certificates and reporting, himself. We are again not dealing with the question whether the medical certificates handed in were authentic. These are accepted to have been authentic, but they were not rendered at a reasonable time when they were called for now the probe is in relation to sanction.  Can it be said that the decision arrived at by the commissioner, that it was fair to dismiss the employee?  Is it one that a reasonable decision maker could not reach in the circumstances of the case? 

[17] The test for review is well known now, because the law relating to it has become trite.  It was set down in the well-known case of Situmayendanaga v Rustenburg Platinum Mines Ltd and others, 2008 (2) SA 24 CC.  It has been explained in various decisions.  One of the very enlightened guidances that one finds is in Goldfields Mining SA (Pty) Ltd v CCMA, 2014 (1) BLLR 20 LAC.  That is a case before the Labour Court that dealt with incapacity, that is poor performance of an employee as distinguished from misconduct.  It comes very close to this matter.  Here, the incapacity we are talking about is that of a failure to come to work as and when one is expected to, and following the procedures.  Thus making your performance compromised.

[18] This judgment clearly indicates that the distinction to be drawn between incapacity enquiry and misconduct enquiry.  In this case the commissioner identified the issues as falling within misconduct, and dealt with it as such.  I do not think it can be faulted to that extent.  The question I ask myself about the decision of the fairness of the sanction is whether the commissioner can be said to have arrived at an unreasonable decision. In paragraph 21 of the Goldfields decision, the Labour Appeal Court had the following to say:

“Where the arbitrator fails to have regard to the material facts, it is likely that he is or she, will fail to arrive at a reasonable decision.  Where the arbitrator failed to follow proper process he or she may produce an unreasonable outcome.”

[19] You will have noted that this does not say that where the arbitrator fails to follow proper processes, he will produce an unreasonable outcome.  It says he “may produce an unreasonable outcome”.  When one looks at the facts of this matter, I have already indicated that the absenteeism of the employee had taken serious proportions over a protracted period of time of about two years.  That is not a negligible period of time. I am not able to find on evidence, it having been demonstrated that the decision the commissioner arrived at to say the dismissal was fair, is one that a reasonable decision maker could not arrive at.  There is no demonstration given to me, when one looks at the period over which this infraction took place.  When one also looks at the fact that in relation to counts one and three, there was sufficiency of evidence that was produced.

[20] In my view therefore, this application has no merits. 

Order

[21] The review application in this matter is dismissed.  However, no costs order is made.

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Cele, J

Judge of the Labour Court of South Africa

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