IN THE LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

Arbitrator: Retief Olivier

Case number: PSES 301-11/12 WC

Date of Award: 2 November 2011

NAPTOSA obo M J Mdlangu (Applicant)

and

WCED (Respondent)

Applicant representative: Faez Tassiem

Union/Applicant’s address

6 Park Rd

Rondebosch

7700

Telephone: 021- 686 8521

Telefax: 021- 689 2989

Respondent: Western Cape Education Department

Respondent’s representative: Mandisi Jejane

Private Bag X9114

Cape Town

8000

Telephone: 021 – 467 2846

Telefax: 021 – 425 8612

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing took place at the District Office of the Western Cape Education Department (WCED) in Worcester, on 28 October 2011. Mr Faez Tassiem from NAPTOSA represented the employee, Mr M J Mdlangu. Mr Mandisi Jejane, represented the employer, WCED.

ISSUE TO BE DECIDED
The applicant referred the matter to the ELRC as an unfair dismissal dispute. The applicant did not deny the charges and the substantive fairness of the dismissal, but denied that he was given fair opportunity to state his case, as the matter proceeded in his absence. I must therefore decide whether the dismissal was procedurally fair.

BACKGROUND TO THE ISSUE
The applicant Mr Mdlangu had been employed as an educator with the WCED, and had been principal of the Siyafuneka Primary School. He was charged with various counts of misconduct related to theft and as alternative charges to willfully or negligently mismanaging monies of the Siyafuneka Primary School. A first hearing was set down for 31 March 2011, but the matter was postponed after a request from the applicant on the grounds of ill health. The matter was then set down for 7 June 2011, but the applicant did not attend. The disciplinary proceeding continued in the absence of the applicant, and he was found guilty and he was dismissed on the 27th June 2011.

The applicant argued that he had sent the WCED a medical certificate, which indicated that he was incapacitated and could not attend the hearing, but the chairperson decided to proceed in his absence.

SURVEY OF EVIDENCE AND ARGUMENT
Employer’s version:

Mr Faizzal Karriem testified that he was aware of the case that involved the applicant as he had prepared documents about the case for the disciplinary hearing. He states that he was verbally informed of the hearing in June, and that the applicant presented a medical certificate a day before the hearing. He had assumed that the hearing would not proceed as the applicant had presented a medical certificate. He stated that be had phoned the Union and they indicated that they would not be attending the hearing. He had spoken to Mr Ahmed. The presiding officer however decided to proceed with the hearing.

During cross-questioning he acknowledged that he did not deliver a formal notice of the hearing to the applicant, and neither did Mr Mofoka, but the applicant was aware of the hearing. He did not know if the presiding officer called the psychiatrist that treated the applicant. Regarding the phone call to the Union he stated that he called Mr Ahmed about a different matter, but then asked if they were aware of the hearing and Mr Ahmed confirmed that he knew and he assumed that he knew it was on the 7th June 2011. He reiterated that the applicant only submitted the medical certificate just before the hearing, and certainly not 5 days before the hearing. It was confirmed by the employer representative that NAPTOSA was informed by email to Mr Tassiem on the 3rd of May 2011 already that the hearing would proceed on the 7th June 2011, upon which he stated that he was not aware of that, but the email would therefore clarify that the applicant was informed.

The second witness Mr Gerry Mafoka stated that he had received a number of medical certificates from the applicant, the first one was handed to him personally and the others he received from the reception. He could not remember the specific dates that he received it, but he did process them. He told the applicant that he could not process the leave applications as the applicant was already suspended. He did not remember the exact content of the certificates but it was speaking of depression. Regarding the hearing of the 7th June he stated that he did not speak to the applicant about the hearing. He could not comment on the reasons of the presiding officer about continuing the hearing in the absence of the applicant, his responsibility was to process the certificates, which he did.

In closing it was argued that the applicant deliberately failed to appear at the hearing, as he was frustrating the efforts to have the hearing held, having been granted a postponement previously, and having been given an opportunity to recover. The applicant got a medical certificate just before the hearing date, to delay the proceedings, as he was suspended with full benefits and was receiving his salary, and the longer the matter was delayed he would continue receiving his salary. The employer justifiably decided to proceed with the matter, as the reason the applicant was stressed was because of the charges against him. Case law, referring to the matter of Old Mutual SA Ltd v Gumbi ( 211/2006) 2007 ZASCA 52 SCA, was presented whereby it was argued that it was fair to proceed with the hearing, even after a medical certificate had been submitted. Written notice of the hearing was served on the applicant by means of an email to his Union representative, Mr Tassiem, on 3 May already.

Applicant’s version:

The applicant, Mr Zolisi Mhalangu stated that the initial hearing was scheduled for the 31st March, which was then postponed to the 7th of June 2011, but he did not attend the hearing as he was booked of sick. He did inform the employer, he was not sure of the date, but he was sure it was more than 5 days before the hearing. He was not served with the written notice of the hearing. He would not have been able to attend on the 7th June as he was stressed and could not concentrate. He was not phoned on the day of the hearing and he did not know whether the doctor was contacted.

During cross-questioning he acknowledged that he was aware of the hearing on the 7th June, he became aware when the applicant representative, Mr Jejane phoned him and he told Mr Jejane that he had submitted a medical certificate. Mr Jejane phoned back to indicate that Mr Karriem had confirmed that a medical certificate had been submitted. Regarding the submission by Mr Jejane that he had informed the Union on the 3rd of May already, he stated that the Union had not notified him. He had communicated to his Union that he could not attend the hearing on 7 June, as he had been booked off. The Union had informed him of the implications if he did not attend the hearing, but he could not attend. He stated further that the Union represented him, but they could not make decisions on his behalf. He acknowledged that he had gone to see the psychiatrist so that he could get a medical certificate and sothat he had a valid reason not to attend the hearing. He did not give the medical certificate to the presiding officer, as it was the normal procedure to give it to the employer.

In closing it was argued that according to the Educator’s Act schedule 2 item 7.6 it states that if the educator fails to attend the hearing and the presiding officer concludes that the educator does not have a valid reason, the hearing may continue in the absence of the educator, however in this instance there was a valid reason for the applicant’s absence, he had submitted a medical certificate. The presiding officer did not determine at the hearing whether the applicant had a valid reason not to attend. No evidence was submitted or requested to test the validity of the certificate. Furthermore the Educator’s Act also states in schedule 2 item 5.1 that the educator must be given a written notice at least 5 days before the date of the hearing. The educator had not received a written notice of the hearing on 7 June; therefore the applicant could not request a postponement, as there was no notice. Hence the Union was not in the position to apply for a postponement. The dismissal was thus procedurally unfair, and the applicant requested compensation for an unfair dismissal.

ANALYSIS OF EVIDENCE AND ARGUMENT
The applicant argued that the dismissal was procedurally unfair in that the employer proceeded with the hearing in the applicant’s absence despite the fact that the applicant had submitted a medical certificate. The employer averred that the presiding officer was justified in proceeding. It is common cause that the applicant had not submitted an application for postponement and had not submitted the medical certificate to the presiding officer. I do find that the case of Old Mutual referred to by the employer has relevance. In Old Mutual SA Ltd v Gumbi (211/2006) 2007 ZASCA 52 SCA it is stated at paragraph 19

“ It is the duty of the employee to ask for a postponement of the hearing if he was unable to attend due to illness. This he failed to do despite the matter having been adjourned for a second time due to his absence. Instead, his representative dared the chairmen to continue with the hearing in their absence. A mere production of the medical certificate was not, in the circumstances of this case, sufficient to justify the employee’s absence from the hearing”

The applicant testified that the reason for him getting a medical certificate was to provide a reason to the presiding officer not to continue with the hearing. He was therefore duty bound to present that medical certificate to the presiding officer at the hearing. It can not be assumed just because he sent the medical certificate to the Employer, in the normal fashion for a leave application, that he would be justified in not attending the hearing. Similarly the Union was duty bound to attend and make the application on behalf of the employer, that is the role and responsibility of a Union representative.

The applicant representative also argued that the employer had not followed procedure in that they had not informed the applicant according to the requirements of Schedule 2 item 5.1 of the Educators Act, namely that the educator must be given written notice. In a very recent case in Nitrophoska (Pty) Ltd vs CCMA and others (Labour Court) C109/2010: 4 March 2011 judge Steenkamp noted that the Code of Good Practice: Dismissal (Schedule 8 to the LRA) sets out the guidelines for a fair pre-dismissal procedure, and 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.”

It is clear in this instance that the employer had afforded the applicant an opportunity to state his case. Considering the above case law I find that the fact that the employer did not follow up the initial formal disciplinary notice for the hearing on 31 March with a similar formal notice for hearing on 7 June 2011, does not to my mind constitute a procedural irregularity to the extend that the hearing is procedurally unfair. The employer had in fact informed the representative of the applicant in writing of the hearing on the 3rd of May, be it an email. Both the Union and the Applicant was aware of the hearing, and according to the testimony of the applicant he was informed telephonically by the employer more than 5 days before the hearing, because he stated that he submitted the medical certificate more than 5 days before the hearing.

Both the applicant and the Union representative took decisions not to attend the hearing and failed to make an application for postponement. I find that the decision of the presiding officer to continue with the hearing was not procedurally unfair.

AWARD
I find that the dismissal of the applicant was procedurally fair. The substantive fairness of the dismissal was not in dispute.

The application is dismissed.

Panelist: Retief Olivier

PSES 301-11/12 WC

2 November 2011.