ELRC 036-13/14 WC

Arbitrator: Retief Olivier
Case number: ELRC 036-13/14 WC
Date of Award: 27 February 2015


SADTU obo M Mfeka Applicant
and
West Coast FET College Respondent



Applicant representative: K Williams - SADTU
Union/Applicant’s address 2 Crossnie Str
Newtown
Wellington
Telephone: 083 634 9213
Telefax:


Respondent: West Coast FET College
Respondent’s representative: Wesley Kelly
Respondent address 28 Voortrekker Rd
Malmesbury,
Telephone: 022 – 482 1208
Telefax: 086 5169200


DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing took place at the Atlantis Campus of the West Coast FET College, in Atlantis, on 21 August 2014, 13 October 2014, 2 December 2014 and 6 February 2015. An in limine hearing took place on 3 September 2014 following a jurisdictional issue that was raised. Mr Williams, SADTU official, represented Mr Mfeka, the applicant. Mr Wesley Kelly, human resources officer represented the employer, West Coast FET College. Written closing arguments were submitted.

ISSUE TO BE DECIDED

The applicant referred the matter as an unfair dismissal dispute. The applicant argued that the dismissal was both procedurally unfair in that the applicant requested a postponement that was denied and on the grounds that the Employer did not comply with the Collective Agreement 1 of 2003, and substantively unfair in that the applicant was not guilty of the charges. I must determine whether the dismissal was fair.

BACKGROUND TO THE ISSUE

The applicant Mr. Worthman Mfeka was employed by the West Coast FET College since 1 February 2004 as a Senior Lecturer on a permanent contract. He was served with a notice to attend a Disciplinary Hearing 02 December 2013 and was charged with the followng offences:
a. Being under the influence of Alcohol
b. Attempting to bring, or causing the name of the College be brought into disrepute
c. Absent from work without permission
d. While on duty conducts himself or herself in an improper, disgraceful and unacceptable manner.

The applicant Mr. Mfeka requested that that the Hearing be postponed until 04 December 2013. He refused to attend the agreed adjourned Disciplinary Hearing and the Disciplinary Hearing continued in absentia on 4 December 2013 and he was found guilty of all charges and dismissed on 6 December 2013

SURVEY OF EVIDENCE AND ARGUMENT

The parties led exhaustive evidence and submitted detailed written closing arguments. Bundles of documents were also submitted as evidence. Although I have considered all the evidence and arguments I am only referring to those aspects relevant to determine the dispute, as I am required in terms of sec 138(7) of the LRA to provide an award with brief reasons.

Employer’s version:

Mr Afrika Ntshona, HOD of the Business Department and the applicant’s supervisor, testified that on 25 November 2013 he saw the applicant early in the morning but later in the day he went looking for him but he was missing, and he then tried to call him and he did not answer his phone either. The next day, 26 November 2013, the applicant did not arrive for to work at the normal time at 8 am either, and then saw that the applicant had checked in for work at around 12h50, but he still could not find him. On the Wednesday 27 November 2013 he saw the applicant in the workplace and that he smelt of alcohol and he asked him why he was drinking, and the applicant told him he was drinking the previous evening.

He stated later that morning Ms Rossouw the HR Manager had called the applicant to the office of the Campus Manager, Ms Rodgers, and was questioned about his condition. He was also called to the office and was in attendance when the applicant was questioned. The applicant smelled of alcohol, but he did not seem drunk. Ms Rossouw went to find a breathalyzer instrument to test the applicant, but she came back and indicated that she could not find one and the applicant was then sent home and he escorted him out of the building. He stated that the applicant did not explain to him why he left work on the Monday and neither did he explain why he came late on the Tuesday. The applicant was also not at work on 28 and 29 November 2013, and he went looking for the applicant and found him in bed and the applicant told him that he felt humiliated and could not come to work.

The second witness Ms Elrine Rodgers, Campus Manager, testified that the applicant Mr Mfeka reported late for duty on 26 November and on 27 November she was looking for him as he again did not report on time and she phoned him but he did not answer. There were no classes at the Attacom building at that time because the students were already writing exams and the applicant could not have been working there. He signed in at 9h45 and was called to her office. He was reeking of alcohol and flushed and his eyes were bloodshot and Ms Rossouw went to look for a breathalyzer test. She also called the HOD Mr Ntshona to the office to witness the state the applicant was in. The applicant wanted to leave but she told him to wait for the breathalyzer test. There was no argument, although the applicant was fidgety at that time and Ms Rossouw indicated that he was not in a state to face students. She told him that he would be issued with a notice of a disciplinary hearing, but the applicant did not come to work on either 28 or 29 November 2013 and it could not be given to him.

She stated that this was not the first incident related to his absenteeism and misuse of alcohol, it had been addressed by the employer earlier in 2013 and he was offered assistance, and also in 2012. He had agreed to go to the AA for treatment. In March 2013 he was absent during the exams and he took the safe keys with him and this compromised the exams.

During cross-questioning she stated that on the day of the incident he was reeking of alcohol and flushed and his eyes were bloodshot and as she observed him he was in no state to face students, who were writing exams at that time. She also stated that he could not be given the notices for the disciplinary hearing because he did not come to work on 28 and 29 November 2013. She stated that the applicant’s seniors had informed her that they had discussed his condition with him and that he had agreed to go for rehabilitation, she was not involved herself.

Ms Daleen Rossouw, HR manager, testified that on 27 November 2013 she was at the campus for routine business and the applicant was seen at reception by Ms Snell and he smelled of alcohol. He was called to Ms Rodgers’ office and when he entered he clearly smelled of alcohol. Ms Snell, the deputy was also there and Mr Ntshona, the HOD was also called to the office. The applicant was clearly observed to be under the influence of alcohol. She went to find a testing instrument but there was not one available. The situation was explained to him and as he was not a condition to have a discussion, he was told they could do it the next day, but he did not turn up for work. A notice for a disciplinary hearing was also prepared, but it could not be issued as he did not come to work for two days. He provided no reasons for his absence and he did not present a medical certificate.

She also stated that shortly after she started to work at the College in May 2013 there was a discussion between the applicant and Mr Kelly and Mr Ntshona about the applicant’s absenteeism and his alcohol abuse, and he agreed to go for assistance.

During cross-questioning she re-iterated that the applicant clearly smelled of alcohol and his eyes were red and he was not acting like a sober person, he was a different person to the person she met before. She also stated that Ms Snell saw him in reception, not herself, she was already in Ms Rodgers office. There was no confrontation in the office, he refused to answer questions put to him and therefore they asked him to come back the next day, which he did not do.

Mr Kaith Barends, chairperson of the disciplinary hearing testified about the hearing and the procedural aspects related to the hearing. The applicant was issued with a notice for the hearing and he came to the hearing on 3 December 2013 and submitted an application for postponement to arrange representation. The hearing was postponed by agreement to the next day, 4 December 2013. The next day the applicant did not attend the hearing and he learnt that the applicant was not at the College either. He asked the HR representative to phone the applicant as the applicant had been released by the Campus Manager to attend the hearing.

Numerous efforts, including sending an HR Intern on two occasions to call the applicant was unsuccessful and the applicant informed the hearing via the HR Intern, that the Disciplinary Hearing can continue in his absence. After sending a message cautioning the applicant of the risks of not attending the scheduled disciplinary, the hearing continued in his absence. It was his view that the applicant was not going to co-operate and that it would be fruitless to postpone the matter again. He then heard the evidence regarding the charges and on the basis of the evidence found the applicant guilty. The applicant was dismissed on the 6th of December 2013 after the applicant had attended the continuance of the hearing on 6 December to submit evidence in mitigation.

During cross-questioning he stated that the issue of the Collective Agreement was not raised in the hearing. He followed the procedures in terms of the College Disciplinary Code and Schedule 8 of the LRA. The applicant was given a written notice, the matter was postponed and there was an agreement to continue on 4 December 2013. The applicant had been given 48 hours to prepare for the matter, which is reasonable time in terms of case law.

Ms Tamian Everts, HR intern, testified about the hearing and confirmed that the chairperson asked her to contact the applicant and that the applicant confirmed that told her he would not be attending without his Union representing him. She also confirmed that the chairperson then told her to inform the applicant of the risks of not attending, and he reiterated that he would not attend.

Mr Mike Mavovana, CEO of the College, testified about the allegation that he had forced the applicant to draft an email on 13 September 2013 in which the applicant acknowledged that he had only one day official leave left and that should he be absent his leave will be converted to unpaid leave and he promised that he will not report to work smelling of alcohol again. He stated that he had discussed the applicant’s absenteeism with him the impact on the work of the College and out of that discussion the email emerged. He had not instructed the applicant to send the email, but he wanted the applicant to understand the implications, and the applicant responded to that in writing. He further denied that eh had protected the applicant, indicating that he had many times disciplined him about his absenteeism and the state in which he sometimes appeared at work.

Ms Gail-Shelanda Jordaan, admin assistant, testified that she could not remember making any statement on the intercom calling the applicant Mr Mfeka to the Board room and denied that the applicant had asked her to testify on his behalf. Neither did she see him enter the Board Room on 6 December 2013. She also stated that she could not remember anything specific on the 27thNovember 2013, but that there were a few days that the applicant signed in late and came to the work drunk.

Ms Prudence Phikela, adminstrator, denied that the applicant had asked or that she had told the applicant anytime in November or December 2013 that she would not testify on his behalf because she was afraid. He did ask her to testify in 2014 but she though he was only joking and she said no, no in Xhosa. Neither had she noticed any incident between him and Ms Rossouw.

In closing it was argued that with regarding procedural fairness The College accepted the Jurisdictional Ruling of Commissioner Olivier and note that Collective agreement 1 of 2013 is binding on the parties. The College also concurs with that, although the Collective Agreement is signed by the parties; all referenced Annexures, from Annexure “A” to, and including, Annexure “G”, is not signed by the parties. If all parties are to accept that Annexure “A” of Collective Agreement 1 of 2013 is a “generic” contract and accept the reasoning of the Commissioner and the definition of the word “generic”, then SADTU failed to offer anything else to the contrary on the argument of the implementation of the exact example of the Employment Contract as per the unsigned Annexure “A” of Collective Agreement 1 of 2013. The College would argue that the West Coast College’s employment contract is indeed, in terms of the definition of the word “generic”, “inclusive of similar things” as cited in the example of the Employment Contract as per the unsigned Annexure “A” of Collective Agreement 1 of 2013

The West Coast College also confirms that, as per Mr. John Slater’s testimony, that the College utilised the existing Disciplinary Code of the West Coast College, which is also “inclusive of similar things” as cited in the unsigned Annexure C of the Collective Agreement 1 of 2013. It is further argued that the West Coast College, in the absence of a West Coast College Disciplinary Procedure, has relied on the guidelines as set by Schedule Eight: (Labour Relations Act) Code of Good Practice- Dismissals, in particular with reference to Section 4, Fair Procedure, relating to giving reasonable time to prepare.

The applicant Mr Mfeka was informed on 27 November 2013 of the Colleges’ intention to charge him for alleged misconduct but opted to absent him from work on 28 and 29 November 2013 and only returned to work on 2 December 2013 and on return to work, was subsequently issued with a written disciplinary notice on 2 December 2013. The charge sheet was drafted on 27 November 2013 and arrangements for a Presiding Officer was made for the Disciplinary Hearing on 3 December 2013. Mr Mfeka subsequently requested more time to prepare and the parties, including Mr. Mfeka agreed to adjourn and reconvene on 4 December at 14:00, this ensuring that Mr. Mfeka was given 48 hours to prepare for his Disciplinary Hearing, which the West Coast College argues was reasonable time to prepare for the Disciplinary Hearing, but on 4 December 2013, he informed the Presiding Officer that he would not be attending the adjourned Disciplinary Hearing.

Regarding the substantive aspects of the dismissal it was argued that the applicant was not a reliable witness and was found to be very dishonest in his testimony. He confirms that the College attempted to intervene on more than one occasion in an attempt to offer assistance with Mr. Mfeka’s alleged alcohol abuse, but he never attended any rehabilitation program or clinic for assistance because he stated he did not need it, and thus took no responsibility for his actions. He made slandering accusations towards all witnesses, but in particular to Mr. Mavovana, Ms. Fortuin and Ms Phikashe, but all the witnesses of the College were honest and credible. He brought no witnesses to corroborate his version of what transpired on 27 November 2013.

The applicant was a member of the Management Team of the Atlantis Campus and his conduct, and the seriousness of the charges, was what contributed to his dismissal. As a result of his misconduct, the employment relationship between Mr. Mfeka and West Coast College has suffered irretrievable damage; he has shown no remorse during both the Disciplinary Hearing and the arbitration with regards to the charges; and therefore the West Coast College submitted that the College has followed a fair procedure and that the reasons for dismissal were substantively fair.


Applicant’s version:

The applicant, Mr Mfeka testified that he was a senior lecturer at the College. He stated that on 27 November 2013 he entered reception to sign in and Ms Rossouw, the HR Manager was there and she said he was drunk, he must go into the office, and he refused as he was not drunk. He stated that he had been drinking the day before and she insulted him by telling him he cannot go to the students like that. Mr Tshona, his HOD was then also called to the office. He wanted to go to the toilet but Ms Rossouw refused to let him go. He was then told to go home and Mr Ntshona escorted him home.

He stated that there was an argument with Ms Rossouw in the foyer that day but because he respected her, he went into the office, and they told him that he was reeking of alcohol and they don’t want the students to see him. He was embarrassed but he was walking normally, and then he went home. He testified that there was a previous incident during the national exams in 2013 where he was charged and there was a disciplinary hearing in June 29013, but he did not get the outcome. Mr Movavane intervened and some staff started calling him untouchable and the relationship with the Campus Manager Ms Rodgers deteriorated. He stated that an agreement was reached at the June hearing that he would attend an AA Group, but he never got the time. He was not an alcoholic and he did not have a problem.

He did not attend work on the 28th November 2013 as he was still mentally unfit, and on the 29th November he also did not report for work. Mr Ntshona came to fetch him for a workshop but he told him he was unwell. He returned to work on 2 December 2013 and went to Ms Rodgers to explain his absence and she did not respond, he later received the notice of the hearing on 3 December 2013. He then consulted a lawyer and also informed the SADTU office. The next day he presented the letter and the hearing was postponed until 4 December 2013. They said it was an internal matter and the lawyer cannot represent him. He then agreed to the postponement to the 4th of December 2013 after he was told that it cannot be postponed for any longer. He was told that he could have a Union representative.

On the 4th of December he did not go to the hearing as he decided he cannot go without a Union representative, he had received letter from SADTU, and he told them he cannot come to the hearing without his representative. The hearing continued in his absence. On the 6th of December 2013, the last day of the academic year, he was in his office when he heard an announcement that he should come to the board room, and he then saw Mr Kelly and he remembered about the hearing. at the hearing he was told a decisions had already been made , and did he want to give his side on the story, but Mr Kelly objected. He then went outside and came back after 5 minutes and he was asked personal questions by the chairperson. The dame day he was given the letter of his dismissal.

Regarding his poor time keeping he stated that he worked in two buildings and that he did not have to register at the Attacom building, and therefore he sometimes signed in but not out, as he left from the other building. Nobody monitored his movement between the two buildings.

During cross-questioning he acknowledged that the letter from SADTU was not handed in to the chairperson of the hearing, but that it was faxed to the CEO of the College. He could not remember how he got the letter, nor could he remember when he got the letter. Regarding the disciplinary hearing in June 29013 he acknowledged that he was charged with serious negligence and absenteeism, but that he could not remember what the outcome was. He further stated that there was no other incident about coming to work under the influence of alcohol before 2013 and that he could not recall and incident where he had discussions with Mr Mavovana in 2011. Regarding the email to Mr Mavovana he stated that he was coerced into writing the email.

Regarding the College rules, he acknowledged that there was a rule that it you were absent on a Monday or Friday you must present a medical certificate, and that he did not and that he had breeched the rule. He acknowledged that he agreed to the postponement of the hearing to 4 December, but stated that he did not have much of an option. He denied that he was informed of the continuance of the hearing on 6 December 2013, but that he heard on the intercom that he must come to the Board Room. He stated that he could not remember the hearing in June or July 2013, but acknowledged that there was a discussion between himself and Mr Kelly and Mr Ntshona, and that there was a verbal agreement that he would enter an AA program. He did not enter the program as he did not see himself as someone that needed help. He however accepts now that he has a drinking problem.

In closing it was argued that with regarding procedural fairness that applicant Mr Mfeka was informed about the hearing on 27 November 2013 in the Campus Manager’s office, but no written charge sheet and no charges were put to him. It was argued that the Disciplinary Code states at 5.1 “The employee must be given written notice at least five working days (5) before the date of the hearing.”

He only received the written notice on Monday 2 December 2013 which informed him that his hearing will be on Wednesday 4 December 2013, clearly not in line with Res.1 of 2013 which clearly stipulate the requirements for notice giving. This was also the relevant resolution that should have been used in the Disciplinary hearing.It cannot be fair to give only a day to prepare for a hearing, given the seriousness of the charges. In the LRA under Schedule 8, Fair Procedure, the following is stated: “The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee” Clearly this was not reasonable time according to Schedule 8. In a letter from his legal representative Nell & Associates they informed the Employer of the unprocedural hearing, and the College never responded to this letter and just ignored it and continued with the hearing. According to the concern expressed there was clearly not enough consultation time for Mr Mfeka. SADTU also forward a letter to the College complaining about time-frames and also urging the College not to go ahead with the hearing which again they ignored and continued with the hearing.

Regarding the substantive aspects it was argued that in relation to the charge of reporting for duty under the influence of intoxicating liquor/substances, the employer witnesses were contradictory and not a single test was performed on him, not even the Observation test. There was no proof led by the College. College failed to lead evidence to proof their theory; the only thing that they testified was that Mr. Mfeka was reeking of alcohol, which is common cause. No new evidence was presented to suggest otherwise.

Regarding being absent from work the College was not very clear on the days that is in dispute for Mr. Mfeka’s absence, as they were only referring to 25 November 2013 when Mr Mfeka came in by the gate late and Tshona was behind him and on 26 November 2013 he informed that he went to his child’s school, and on 27 November 2013 he arrived at 09h45, and the deputy Campus Manager (Ms. Snell) witnessed him signing in and asking him to come to Ms. Rogers office. Regarding the 28 & 29 November 2013 according to Ms. Rogers and no documents was submitted, but Mr. Mfeka he was too embarrassed to attend campus and he Mr Mfeka tesitifed thatr he is working between the ATTICOM building and the MAIN building and it is quite clear that the siginf the regiester is is not the same at both buildings and not required. It was argeud you cannot just dismiss an employee for not being at work for 2 days.

Regarding the charge that he conducted him in an improper, disgraceful or unacceptable manner while on duty, the College never provided testimony to support the above charge, only to say that Mr. Mfeka was smelling/reeking of alcohol. By 27 November 2013 there was no more students on Campus and it was only the staff that was on the premises. Neither was any evidence led regarding the charge of attempting to bring or cause the name of the College to be brought into disrepute.

It was therefore argued that the dismissal was both procedurally and substantively unfair and that the applicant Mr Mfeka should be reinstated.

ANALYSIS OF EVIDENCE AND ARGUMENT

The LRA states in the Code of Good Conduct in sec 7 of Schedule 8 that in a dismissal dispute the following must be considered:

“Any person who is determining whether a dismissal for misconduct is unfair should consider -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether or not-
(i) It was valid or reasonable rule or standard;
(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) The rule or standard has been consistently applied by the employer;”

The second question to be answered is with regard to the appropriate sanction. In s7 (b) it is noted:
(iv) Dismissal was an appropriate sanction for the contravention of the rule or standard.

The applicant denied being guilty of the charges and argued that the evidence presented by the employer was either contradictory or lacking, with respect to the different charges. However considering the evidence of the employer witnesses, which I do not intend to repeat as it is already stated, in particularly the evidence regarding the first charge related to reporting for duty under the influence of intoxicating liquor/substances, I do find on a balance of probability that the employer has proven the charge. The witnesses all stated that the applicant was reeking of alcohol and even the applicant himself did not deny it. The evidence presented clearly indicated that the applicant was not himself, and by their observation it was mentioned that his eyes were red and bloodshot and that he was not in a position to appear before students. Although no breathalyzer test was conducted, by observation all witnesses indicated that he reeked of alcohol, and there was a consensus that he was in no position to face students and to work with students.

This clearly also indicate that in that state he would be conducting himself in an improper and disgraceful manner, and bring the name of the College into disrepute, even if he only appeared before staff and not students, as argued by the applicant, although the employer stated that he had exam duties that would involve students. The applicant performed professional duties and based on the evidence presented, could not perform those duties in an intoxicated state.

The evidence presented about the applicant being late and disappearing from work was not contradicted and it was also not denied that he was absent on the 28th and 29th of November, without providing any reasons for his absence. The applicant’s argument that he was working in the Attacom building, hence not having to sign in and register was not relevant in the time period in question in late November, as according to the employer there were no lectures conducted in the Atticacom building at that time. The applicant did not dispute this.

The applicant made numerous allegations about the witnesses, including also against Mr Rossouw, but he could not substantiate those allegations and did not call any witnesses to corroborate his version. Mr Mavovana for instance emphatically rejected the allegation that he coerced the applicant into writing an email.

Considering this I do find that the balance of probability favors the employer’s version, and that the applicant is thus guilty of all the charges.

The further consideration thus is whether the sanction of dismissal was fair.

In assessing whether or not an employer’s decision to dismiss was an appropriate sanction according to the case of Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC,) I considered specifically paragraph 75 and 94 referring to the issue of fairness and criteria for consideration by the commissioner. The employer argued that the applicant was guilty of serious misconduct; that he was a senior staff member, being as a member of the Management Team; and that, as a result of his misconduct, the employment relationship between himself and West Coast College has suffered irretrievable damage; and it was also noted that he has shown no remorse during both the Disciplinary Hearing and the arbitration with regards to the charges; and that the dismissal was therefor fair. I am in agreement that the applicant was guilty of serious misconduct, considering the nature of the charges and the applicant’s position.
In the matter Transnet Freight Rail v Transnet Bargaining Council & Others [2011] 6 BLLR 594 (LC) the Court held that where an employee consciously consumes alcohol before reporting for duty he was guilty of misconduct and could be fairly dismissed. The Court stated:
“Section 10 (3) of the Code of Good Practice: Dismissal specifically includes alcoholism as a form of incapacity and suggests that counselling and rehabilitation may be appropriate measures to be undertaken by a company in assisting such employees. In fact, the requirement to assist such employees by providing them with treatment has been widely accepted. However, when an employee, who is not an alcoholic and does not claim to be one, reports for duty under the influence of alcohol, she will be guilty of misconduct.”

There were previous incidents relating to the applicant’s problems regarding absenteeism and alcohol abuse. The employer intervened and provided assistance, and the applicant agreed to go for rehabilitation, and then reneged on the agreement indicating that he did not need any help. It was only after his dismissal that the applicant admitted that he had a drinking problem. In the above matter the Court held where there is no proof that an employee has a dependency problem, the fact that an employee was under the influence of alcohol could not be treated as incapacity, but must be treated as misconduct.

The employer had exercised progressive discipline and had attempted to assist the applicant with his problems, but the applicant persisted in his misconduct. Considering the above I find that dismissal on the substantive grounds in these circumstances were not unreasonable or unfair.

The applicant however also disputed the procedural fairness, and in this instance argued that the Employer did not follow the ELRC Collective Agreement‘s Discipmary Code that stated that “The employee must be given written notice at least five working days (5) before the date of the hearing.”

It was also argued that the applicant was not given sufficient time to prepare for the disciplinary hearing and that his applications for postponement had been rejected by the chairperson. I have issued a jurisdictional ruling, as indicated by the employer indicating that ELRC Collective Agreement 1 of 2013 is binding on the parties. That Collective Agreement was signed by all the parties; all referenced Annexures, from Annexure “A” to, and including, Annexure “G”, is however not signed by the parties. The Collective Agreement and Annexure “A” of Collective Agreement 1 of 2013 states it is a “generic” contract and therefore the Disciplinary Code need not be an exact replica, but must contain the principles included in the Collective Agreement. The key issue thus is whether the applicant was afforded sufficient time to prepare for the disciplinary hearing. The Annexure B suggests a time period of 5 days; it is common cause that initially the Employer gave the applicant only 24 hours written notice of the disciplinary hearing. I do however not believe that the 5 days is peremptory, as it is referred to in the Disciplinary Code, document Annexure B, which was not signed by the parties to the Collective Agreement.

I do agree with the applicant that providing an employee with 24 hours notice, is not sufficient time to prepare for a hearing, particularly if the charges are viewed so serious that it may warrant dismissal. However the applicant agreed to the postponement until the next day and then refused to attend the hearing. It is common cause that the letter from SADTU requesting further postponement was not presented to the chairperson of the hearing. Having agreed to the postponement it would have served the applicant better to have attended the hearing, registered his objection and indicated that he required more time and then used the opportunity to refute the charges and if unhappy with the outcome, he could have appealed the matter or refer it to the Council, as he has now in fact done. By refusing to attend the adjourned hearing, to which he agreed, he became the author of his own misfortune.

I do find the case Nitrophoska (Pty) Ltd vs CCMA and others (Labour Court) C109/2010: 4 March 2011 instructive in this respect. In this matter the arbitrator found that the employer’s failure to give the employee formal notice of the allegations against him made the dismissal procedurally unfair. He ordered the company to pay the employee compensation equal to about 3 months’ pay (R69 600). On review to the Labour Court, Judge Steenkamp disagreed with the arbitrator’s finding.

Noting that the Code of Good Practice: Dismissal (Schedule 8 to the LRA) sets out the guidelines for a fair pre-dismissal procedure, the judge remarked that “The code was intended to do away with the rigid “criminal procedure style” provisions that had proliferated under the previous dispensation. Regrettably, the flexibility introduced by the code has not always been recognised by arbitrating commissioners.”

He referred to a June 2006 working paper of the UCT Development Policy Research Unit (Regulated Flexibility: Revisiting the LRA and the BCEA) in which Halton Cheadle says: “Despite the clear direction given in the code, employers, consultants, lawyers, arbitrators and judges have continued to over-emphasize pre-dismissal procedures and in so doing have imposed an unnecessary burden on employers without advancing the protection of workers.”

He also referred to the leading decision of the Labour Court in Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 27 ILJ 1644 (LC) where Judge Andre van Niekerk held that there was no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial. Judge Van Niekerk said in this connection: “When the code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against the employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss.”

Judge Steenkamp said that these principles have even greater application where senior managerial employees are involved and noted that “it has been held that the form of observance of the audi alteram partem rule may be relaxed in the case of a senior manager”.

He found that it was inconceivable on the facts that the employee was not aware of the allegations against him and he found the dismissal of the employee to have been both procedurally and substantively fair.

Considering the above I find the dismissal not to be procedurally unfair.

AWARD

I find that the dismissal of the applicant was substantively and procedurally fair. The application is dismissed.


Panelist: Retief Olivier
ELRC 036-13/14 WC