Dismissal Fair when Employee Provides “False” Information for Compassionate Leave?
Arbitrations are the preferred proceedings that have been chosen as a means for resolving disputes about dismissals. The courts set narrow grounds and high standards to discourage parties from challenging arbitration awards. This is done so that disputes are resolved in a speedy and inexpensive manner. This however has not deterred parties from bringing review applications.
In Toyota South Africa Motors (PTY) Ltd v NUMSA obo Njilo and Others, the applicant (Toyota) wanted an arbitration award, awarded at the CCMA, set aside and wanted the first respondent’s (Mr Njilo) dismissal, declared substantively fair. This was done by bringing a review in terms of section 145 of the Labour Relations Act, 1995. The applicant had dismissed Mr Njilo for misconduct alleging that he had provided false information when applying for compassionate leave, about his relationship to a deceased family member, resulting in him receiving compassionate leave payments which he was allegedly not entitled to receive. The arbitrator at the CCMA found Mr Njilo’s dismissal to be substantially unfair based on the fact that he had not been dishonest, he had served the company for 17 years and had a clean disciplinary record.
At the Labour Court, the applicants argued that the arbitrator did not consider all the relevant and material facts and made material errors of fact which led to an unreasonable outcome. The Labour Court found that the arbitrator’s findings were reasonable and could have been reached by a reasonable decision-maker presented with the same facts. The arbitrator in this circumstance had to consider the context and weigh the misconduct and the sanction, which is partially a value judgement. The court found that the leave policy was not properly explained to him, was 35 pages long and that the section on compassionate leave was in a smaller font and difficult to find. The court also found that cultural differences on the meaning of family in the leave policy contributed to the misunderstanding. The leave policy did not cover people he regarded in Zulu culture as his “immediate family”. The Labour Court found that the arbitrator did not misconduct herself in the proceedings, did not commit a reviewable irregularity and that the award should stand.
A review court has to take into consideration the material (the record) that was presented at the arbitration and is not permitted to make a determination on new issues. The court will also have to consider whether a reasonable decision-maker would have come to the same conclusion? In this review application, the applicant failed to show that the reasons given for making the award were unreasonable and that the arbitrator’s decision had been materially impacted by an error, in the absence of which, the arbitrator would have come to a different decision.
We await to see if the applicant approaches the Labour Appeal Court, and if so, will keep you posted on the outcome.
Nonkululeko Chabalala is a Candidate Attorney at CK Attorneys.
An aspect that arises quite frequently in an employment situation, is the question as to what can be done when there are remuneration differences and your view/opinion is that it is based unfair discrimination.
Owning a property comes with its own set of responsibilities, and one specifically challenging aspect can be navigating the eviction process.
Embarking on a journey to protect individual privacy, the South African Constitutional Court delivered a resounding judgment in February 2021, declaring sections of the communication surveillance law unconstitutional.