IN THE BARGAINING COUNCIL FOR THE CIVIL ENGINEERING INDUSTRY ( BCCEI ) HELD AT GROOT MARICO; NORTH-WEST PROVINCE In the arbitration between

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1 IN THE BARGAINING COUNCIL FOR THE CIVIL ENGINEERING INDUSTRY ( BCCEI ) HELD AT GROOT MARICO; NORTH-WEST PROVINCE In the arbitration between SEALETSA, TATLHEGO JOEL APPLICANT AND G4 CIVILS (PTY) LTD RESPONDENT A R B I T R A T I O N A W A R D CASE NUMBER: NWRB DATE AWARD SUBMITTED: 13 NOVEMBER 2016 NAME OF COMMISSIONER: JOHN MASHIKA DETAILS OF PARTIES: Union/ Applicant/ or representative Self P.O. Box 123 Groot-Marico North West; 2880 Telephone/ Mobile / Telefax lekau.lekola@gmail.com Respondent/ or representative Mr. R Kusene Postnet Suite 155 Private Bag X27 Kempton Park; 1620 Telephone/ Mobile / Telefax Sandra@g4.co.za / kobie@g4.co.za / ronald@g4.co.za Centre for Dispute Resolution 1 Kramer Road, Bedfordview, Johannesburg, 2007 P O Box 2699, Bedfordview, Johannesburg, 2008 Tel No. (011) /3 Fax No disputes@bccei.co.za [NWRB ] Page 1

2 Details of hearing and representation 1. This matter was referred for an arbitration process to the Bargaining Council for the Civil Engineering Industry in terms of section 191 (1) (a) of the Labour Relations Act 66 of 1995 ( the LRA ) and was heard at the Dutch Reformed Church of South Africa (NGK) premises in Groot Marico on 18 October 2016 and 11 November The applicant is Mr Tatlhego Joel Sealetsa. He was present in these proceedings and he represented himself. The respondent is G4 Civils (Pty) Ltd. They were represented by Mr. Ronald Kusene, the Site Manager. 3. The proceedings were manually and digitally recorded. Interpretation services were provided by Ms Grace Rangane. Issue to be decided 4. I must make a determination whether the applicant s dismissal was substantively and procedurally fair in terms of section 188(1)(a)(i) of the LRA. 5. In the event I find for the applicant; he requested that I order the respondent to compensate him for the unfair dismissal. Background 6. The applicant was employed by the respondent on 4 May 2015 as a General Worker. He was dismissed on 7 September He earned a monthly salary of R (three thousand six hundred and sixty six rand). 7. The respondent is a construction company. The applicant was employed at one of its road construction projects in the Groot Marico area in the North West Province. 8. The applicant contends that his dismissal was procedurally and substantively unfair. He states that he did not know of the disciplinary hearing instituted against him as no charges and/ or a notification of the hearing was issued to him. [NWRB ] Page 2

3 9. It is common cause that the applicant was dismissed in his absence. 10. A bundle of documents consisting of 20 annexures was submitted as evidence by the respondent and it was marked and referred to as bundle R. Survey of evidence Respondent s case: First Witness Thabiso Snyer 11. He testified under oath that he holds a position of a Site Clerk and his duties include, amongst others, the booking of employees for duty. The applicant was booked off duty due to sickness from 15 July 2015 to 13 August Medical reports were submitted by the applicant for this period. 12. After receipt of the last sick note from the applicant, the applicant proceeded not to report for work. He decided to visit him at his home and the applicant told him that he was still scheduled for checkups at the hospital as he was feeling dizzy. 13. The applicant reported for work on 1 September 2015 and he did not look okay. He was unable to walk for a distance without assistance. He was taken to the Site Manager s office and spoken to about his absence at work. 14. In cross- examination he stated that he did not see the applicant at work on 17 August He did not notify the applicant of the disciplinary hearing. In as far as he knows; the notification for a hearing was signed on behalf of the applicant by the Community Liaison Officer (CLO), Mr Motswenyane. 15. He does not know why the Human Resources office allowed the CLO to sign for the applicant. After the dismissal of the applicant from work; he did nothing to inform him that he was dismissed. He only saw the applicant in January 2016 when he was issued with his Unemployment Insurance 19 form (UI19) Second Witness Kedumetse Frekkie Motswenyane [NWRB ] Page 3

4 16. He testified under oath that he is the CLO and is tasked to procure employees for the respondent in his Community. He saw the applicant on 1 September 2015 assisted to walk by one Mr Joseph Segaila. He helped to carry him to the respondent s office. In the office the applicant was requested to sign some documents but was unable to hold a pen. On the day of the disciplinary hearing; the applicant was absent. He was requested to sign a document to evidence the fact that the applicant was not in attendance at the disciplinary hearing. 17. In cross- examination he stated that he does not know if the applicant knew of the disciplinary hearing. He does not know if it was lawful to sign for him at the disciplinary hearing; but he thought it was okay as the applicant was waited for at the hearing and did not arrive. After the disciplinary hearing he did not do anything to tell the applicant about it as he thought Mr. Snyer will do so. He only knew of the applicant s dismissal when he saw him with a UI19 form. 18. In clarification he stated that the only time he had signed a document for the applicant was at the disciplinary hearing to confirm that he did not attend the hearing. Applicant s case Tatlhego Joel Sealetsa 19. He testified under oath that on 20 July 2015 he was admitted to the hospital and discharged on 26 July He was again admitted to the hospital on 29 July 2015 and discharged on 14 August He went to work on 17 August 2015 so that the respondent could see his condition. He did so again on 18 September 2015, 23 October 2015, 13 November 2015 and 14 January In all instances that he went to work was after he had gone to the hospital for his checkups. 20. When he went to work he was not told that he was dismissed. The last time he went to work was on 29 March 2016 after he was given a medical note that he was fit to resume with his duties. He was not allowed to and he approached the Department of Labour (DOL) for assistance. 21. In cross- examination he stated that he does not recall when he had submitted his last sick note. He only remembers submitting four (4) notes. He is not sure if the sick note in annexure 14 of bundle R is the last note submitted. [NWRB ] Page 4

5 Analysis of evidence and argument 22. Section 192(2) of the LRA enjoins the respondent to proof the fairness of a dismissal. In the main; the respondent herein had an unenviable duty to show that when it terminated the applicant s contract of employment, it did so for a fair reason after following a fair process as is expected of it in terms of section 188 of the LRA. It is therefore proper and fair to deal with both aspects for a fair dismissal; that is, the procedural and substantive fairness aspects. Procedural Fairness 23. As stated in my paragraph 9 above; it is common cause that the applicant was dismissed in his absence. At the start of the proceedings the respondent sought to suggest that the applicant was informed of the disciplinary hearing through the CLO. This, as per the evidence of the CLO proved incorrect. The CLO testified that he only signed one document for the applicant; and that was in the disciplinary hearing. This document was to show that the applicant did not attend his hearing. 24. Mr. Snyer testified that he went to visit the applicant after 1 September He had a notification of the hearing. He however did not find the applicant at home. He did not tell the elders he found at the applicant s home the reason behind his visit. He did not even leave behind the notification of the hearing as he did not trust that it will be given to him. This meant that he deprived the applicant the opportunity to attend the hearing and state his side of the story. 25. Item 4(1) of schedule 8 to the LRA enjoins the employer to notify an employee of a disciplinary hearing to be held. To an extent that there is no evidence before me that the applicant was notified of the hearing; I am inclined to agree with the applicant that his dismissal was procedurally unfair. 26. That which is concerning is the fact that the applicant was seen by the Site Manager and Site Clerk at work on 1 September He was sick and unable to walk on his own. It therefore seems inconceivable that he would have been able to attend a hearing six (6) days later on 7 September I therefore find the dismissal of the applicant procedurally unfair. [NWRB ] Page 5

6 Substantive Fairness 28. Though Mr. Kusene stated at the start of these proceedings that the applicant was dismissed for being absent at work and not submitting a sick note; the charge preferred on the applicant reads (sic) absent without permission 5 days or more (annexure 17 of bundle R). The evidence presented before me suggests that the applicant only submitted four (4) medical reports between 14 July 2015 to 13 August 2015 (see annexures 11, 12, 13 and 14 of bundle R). 29. I find the conduct of the respondent visiting him after the last sick note as being proper and fair. Much as it cannot be disputed that the applicant did not submit sick notes after 13 August 2015; the respondent was; at least, up until 1 September 2015, aware that the applicant was still sick. 30. The applicant also made means to visit the respondent every month up until March 2016 and it seems no one bothered to tell him that he was dismissed or issue him with a termination letter. I agree with Mr. Kusene in his closing argument that it was harsh to discipline him as they were not aware of his state of mind. My view is that the applicant s visit to the respondent after his monthly checkups should have made the respondent aware that he was still keen to work for them. He regarded himself as an employee of the respondent with a duty to report on his state of health amid without a sick note. 31. In the normal cause of events an incapacity hearing should have been held against the applicant and not a disciplinary hearing. The disciplinary hearing held on 7 September 2015 sought to suggest that the applicant had misconducted himself. If there was any misconduct on the part of the applicant; it will have been in relation to the submission of sick notes. 32. I find it rather strange why the respondent having seen the health condition of the applicant on 1 September 2015 can form a view that he has committed a misconduct that he should account for on 7 September The applicant s UI19; for whatever reason states that he had absconded. Even if I were to accept this as correct; of which I do not, I would have expected the respondent to hear his side of the story on his return to work in March 2016 after being given a [NWRB ] Page 6

7 clean bill of health. This will have given the respondent an opportunity to reflect on the applicant s circumstance and make an informed decision. 34. To an extent that there is proof through sick notes (up until 13 August 2015) that the applicant was sick; and also confirmation by the respondent s witnesses that the applicant was still sick on 1 September 2015; and also an acknowledgement by Mr. Kusene in his closing argument that the applicant was coming to work on a monthly basis and turned back; I accordingly find that the applicant did not misconduct himself. As a consequence; his dismissal was substantively unfair. Relief 35. Section 193(2)(d) of the LRA provides, amongst others, that if an arbitrator finds that a dismissal is unfair, must require the employer to reinstate or re-employ the employee unless the dismissal is unfair only because the employer did not follow a fair procedure. 36. The applicant requested to be compensated. This is obviously not a primary remedy in terms of the LRA; I shall however grant it to him as requested. The below amount is, in the main, informed by the fact that the respondent should have handled this matter differently. I further form a view that in this day and age dismissing an employee without notifying him or her of the proceedings is grossly unfair and unwarranted. 37. The sitting that decided on the termination of the applicant s services was the first sitting. Even if the applicant would have been properly notified of the hearing of 7 September 2015; postponing this matter to another date will not have prejudiced the respondent especially after seeing his medical condition on 1 September The applicant; at the time of his dismissal had worked for the respondent for at least about four (4) months; of which about two (2) of these months he was sick and not rendering any services. An amount of R (seven thousand three hundred and thirty two rand); which is an equivalent of two (2) months salary will be a fair and equitable compensation under the circumstances [NWRB ] Page 7

8 Award 39. The dismissal of the applicant, Tatlhego Joel Sealetsa, by the respondent G4 Civils (Pty) Ltd was substantively and procedurally unfair. 40. The respondent is ordered to compensate the applicant an amount of R (seven thousand three hundred and thirty two rand). 41. The above amount must be paid to the applicant on or before 30 November SIGNED AND DATED AT PRETORIA ON THIS 13 TH DAY OF NOVEMBER John Mashika Council Commissioner [NWRB ] Page 8