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SELECTED CCMA ARBITRATION AWARDS JULY DECEMBER 2007 INDEX Absenteeism 2 Abusive language 3 Agency shop agreement 4 Assault

t 5 Bribery 6 Constructive dismissal 7 Definition of an employee 10 Derivative misconduct 10 Desertion 11 Dismissals for misconduct 12 Dismissal or resignation 13 Drunkenness on duty 14 Failure to promote 16 Falsification of records 17 Fixed term contract 18 Incapacity 19 Incompatibility 20 Insubordination 20 Job grading 20 Late coming 21 Negligence 21 Organisational rights 23 Retrenchment

23 Right to disciplinary hearing 23 Sexual harassment 24 Sick leave 25 Strike 25 Theft 26 Unfair labour practice 27

ABSENTEEISM GAJB14240-07 Nzembe v Valverde Country Lodge - Commissioner: Serero Absent without permission - Employee sick for four days - Employee produced sick certificate which accounted for one day sick leave - Dismissal unfair. The commissioner was called upon to determine whether the applicant was unfairly dismissed. The applicant had requested permission to leave early as she was sick. The respondent asked her to submit a medical certificate on her return. The applicant was absent from work for four days, when she returned to work, she produced a medical certificate which accounted for only one days absence. After a disciplinary hearing, she was found guilty of unauthorised absence and was dismissed. The respondent claimed that in terms of the company disciplinary code, unauthorised absence is a dismissible offence. It further alleged that the applicant had failed to produce a medical certificate for the entire period of her illness. The applicant argued that she had phoned the respondent and indicated that she was ill. Noted: That the respondent had failed to explain why the chairperson of the hearing made no reference to the alleged final written warning for insubordination. The chairperson recommended a final written warning because applicant had no relevant warnings. Held: That the respondent was aware that the applicant was ill. The commissioner found that the dismissal was unfair. The respondent was ordered to compensate the applicant with five months salary. GAPT1713-07 SAACAWU obo Ramoalosi v Brikor (Pty) Ltd - Commissioner: Matjie

Absent without permission Jailed employee dismissed for failing to inform employer of his whereabouts. It was common cause that the applicant had failed to report for duty from 8 January to 5 February 2007 after the festive season. He was charged with unauthorised absence from work and was subsequently dismissed following a disciplinary hearing. The applicant referred a dispute to the CCMA challenging the fairness of his dismissal and sought reinstatement. The applicant claimed that he was arrested on 13 December 2006 for theft allegation reported by a colleague and was later released on bail. He claimed that on his return to work, he had been denied access into the respondents premises by the security guard as per managements instruction. He also claimed that during the disciplinary hearing, the respondent had denied him an opportunity to call witnesses. The respondent claimed that the applicant had failed to inform it of his whereabouts. It indicated that it had a policy which states that unauthorised absence from work for a period of five or more consecutive days is a dismissible offence. According to the respondent, all employees were aware of the policy. The respondent denied refusing the applicant to call witnesses. It argued that the applicants witnesses were on leave and he was advised to postpone the hearing, but had refused to do so. It also claimed that the applicant had deliberately stayed away from working because of the pending investigation. Noted: That the applicant had testified at the disciplinary hearing that he awaited the outcome of the criminal trial. The commissioner noted that the applicant had only returned to work after the magistrate had advised him to do so. Also noted: That no satisfactory explanation was given by the applicant for his failure to call witnesses. Held: That the applicant had breached the company rule. The commissioner held that the respondent had succeeded to discharge the onus of proving that the dismissal was fair. The applicants dismissal was, therefore, held to be both procedurally and substantively fair.

FS5879-06 Mthethwa v Capitol Caterers Commissioner: van Aarde Repeated late coming and absenteeism Absent for two weeks Hospitalised Medical certificate submitted to manager. The applicant, was dismissed after he had been absent from work for about two weeks. He claimed that he had been hospitalised after suffering a serious illness,

and that his wife had informed the secretary/administration officer about his state of health. On returning to work, he handed the medical certificate to his manager and he was dismissed. Noted: That an employees absence from work due to incapacity warrants a dismissal only if its duration is unreasonable. Absenteeism rarely warrants dismissal at first instance. The elements of absenteeism are that the employee was absent from work, that no permission was given for the absence, and that the employee had failed to inform the employer of the reasons for his absence. Wilful absence from work constitutes a breach of contract and justifies a summary termination of the contract of employment. Also noted: That employees on authorised sick leave cannot be guilty of absenteeism unless it is apparent that the sick leave is being abused. There was no principle of law to support the view, apparently adopted by the respondent, that employees dismiss themselves after a certain period of unauthorised absence. In all such cases, the employer exercised the choice of dismissing the employee. The commissioner also noted that the respondent is not entitled to summarily dismiss an employee for a trifling absence which causes little or no prejudice to the employer. Employers treat absenteeism on a progressive scale when imposing penalties. Dismissal, as a final sanction, is normally justified only if the employee fails to heed the final warning. However, in such cases, it is still incumbent on the employer to prove that the absence did amount to absenteeism. Further noted: That employees cannot be guilty of absenteeism when they are not contractually obliged to render service. Employees on authorised leave, sick leave or maternity leave are entitled to remain away from work for the duration of the specified period. Held: That the dismissal of the applicant had been both substantively and procedurally unfair. The respondent was ordered to reinstate the applicant and to pay salaries in arrears. Case references CWIU v Boardman Brothers (Natal) (Pty) Ltd (1995) 16 ILJ 619 (LAC) Maleke v Khans Tire & Tube Centre (2006) case number MINT 4119C (MIBCO) MAWU v Horizon Engineering (Pty) Ltd (1989) 10 ILJ 782 (ARB) Mambalu v AECI Explosives Ltd (Zomerveld) (1995) 16 ILJ 960 (IC) Mgobhozi v Naidoo NO & Others (2006) 3 BLLR 242 (LAC) Mkele v SA Breweries Ltd (1991) 12 ILJ 900 (IC) Naidoo v La Mercy Beach Hotel (1996) 1 BLLR 98 (IC) Negro v Continental Spinning & Knitting Mills (Pty) Ltd 1954 (2) SA 203 (W) NUMSA & Others v Steloy Stainless Precision Casting (Pty) Ltd (1995) 7 BLLR 87 (IC) SACWU v Dyasi (2001) 7 BLLR 731 (LAC) Seabelo v Belgravia Hotel (1997) 6 BLLR 829 (CCMA) Sibisi v Gelvendor Textiles (1985) 6 ILJ 122 (IC)

South African Broadcasting Corporation v CCMA & Others (2001) 4 BLLR 449 (LC) Dhlamini v Wilco Mall (2006): case number FS 2304-05 (CCMA) Radebe v Harrismith Inn v African Stay Hotel (2006) case number FS 4384-05 (CCMA) ABUSIVE LANGUAGE ECEL1952-05 SACCAWU obo Ludada v Ellerines Holdings Commissioner: Koorts Abusive language Employee dismissed for uttering racist remarks Employee refused to obey instructions. The applicant, who had been employed a sales advisor and a shop steward, was dismissed for allegedly uttering racist remarks to his managers, refusing to obey instructions and failing to update his diary and filing system. It was alleged that the applicant refused to help a white manager to improve sales figures. The respondent alleged that the applicant shouted apartheid when he was suspended. The applicant was called for a disciplinary hearing, found guilty and dismissed. He referred the case of unfair dismissal claiming that the incidents of misconduct did not occur. He also alleged that the presiding officer of the disciplinary hearing was biased. Noted: That the applicant had denied insulting his managers, but did not dispute that he had shouted apartheid when he was suspended or had refused to obey an instruction to update his sales figures. Held: That the applicant had committed a serious misconduct by uttering racist remarks to his managers as those remarks had clear racial connotation, were offensive and abusive. Also held: That there was no basis for the applicants claim that the presiding officer of the disciplinary hearing was biased. The dismissal was held to be both substantively and procedurally fair. The application was dismissed. Case references CCAWUSA & Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10ILJ 311 (IC) County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC) AGENCY SHOP AGREEMENT KNDB13549-06 Full Range Employers Organisation obo Members v National Bargaining Council for the Clothing Manufacturing Industry Commissioner: Molony Agency shop agreement Whether agency shop can be concluded by council and extended to non-parties.

The commissioner was called upon to decide whether the National Bargaining Council for the Clothing Manufacturing Industry (the Council) can conclude an agency shop agreement and extend it to non parties. The applicant argued that it is not possible in terms of the provisions of the LRA for the Council to conclude the agency shop agreement and extend it to non parties who fall within the scope of that council. It was argued that the collective agreement is not binding on members of the employers organisation and cannot, therefore, be enforced. The applicant claimed that while an agency shop agreement is a collective agreement, they differ materially from other collective agreements. It also argued that in terms of s 25 of the LRA, an agency shop agreement can only be entered into between a representative trade union and an employer. The present agreement was reached by parties at the council and, therefore, falls out of the section. It alleged that because the agency shop agreement cannot be entered into at or by a council, it may also not be extended to non-parties to the Council. The respondent argued that s 25 of the LRA cannot be interpreted in isolation as the respondent sought to do. It is part and parcel of the LRA which gives primacy to collective bargaining and majoritarianism. An agency shop agreement arises from collective bargaining and, as such, s 25 of LRA should be interpreted in this context. The LRA does not state that agency shops can only be entered into between employers and trade unions at workplace level. An agency shop agreement is a collective agreement and may, therefore, be concluded at council level, and be extended to non-parties in terms of s 32 of the LRA. The respondent claimed that the applicants case was to attack the validity of the agency shop. Noted: That the applicant had referred a dispute in terms of s 24(6) of the LRA. The nature of the dispute is not determined by the applicant. An arbitrator has the duty to determine the real nature of the dispute. Also noted: That the applicant in this matter, sought an order to the effect that the collective agreement was not valid because, amongst other reasons, an agency shop agreement cannot be entered into by parties to Council. Held: That the dispute was certainly not about the application and interpretation of a collective agreement. The commissioner, therefore, held that the CCMA lacked jurisdiction over the matter as the purpose of s 25 (1) of the LRA is to make it clear that agency shop agreements are voluntary. It does not limit an agency shop agreement to a workplace, rather, it sets out that such an agreement may voluntarily be entered into at workplace level. Also held: That an agency shop agreement is a collective agreement, whether entered into at workplace level or at council level. It can be extended to non parties like any other collective agreement in term of s 32 of the LRA. The matter was, therefore, dismissed. Case references

Amandale Building Materials (Pty) t/a Alltocrete Brickworks & Another v NUM (2002) 11 BLLR 1058 (LC) Crown Cork Company SA (Pty) Ltd v NUMSA (1998) 12 BALR 1615 (IMSSAA) Mineworkers Union & Another v AECI Explosives & Chemical Ltd, Modderfontein Factory (1995) 3 BLLR 58 (IC) NUCW v Oranje Mynbou en Vervoer Maatskappy Bpk (2000) 2 BLLR 196 (LC) Solidarity & Others v Minister of Public Service & Administration (2004) 6 BLLR 593 (LC) ASSAULT LP2082-07 NUM obo Mokome v Lonmin Platinum - Commissioner: Kganyago Dismissal - Employee assaulted miner - Employee wanted to be represented by trade union official at hearing. The applicant was charged for allegedly assaulting a miner. He was called to a disciplinary hearing, and was subsequently dismissed. The applicant appealed that he was supposed to be represented by a trade union official during the disciplinary hearing. He denied that he had assaulted the miner, and alleged that the miner assaulted him first. Noted: That the applicant claimed that he had allegedly assaulted the miner in self defence. Held: That the applicant was not a shop steward. It was, therefore, not necessary for him to be represented by a trade union official. Also held: That the respondent had done nothing wrong by allowing the applicant to be represented by a fellow employee. The commissioner found that the applicants dismissal was both procedurally and substantively fair. The application was dismissed. WE4777-07 Frans & Others v The Orion Organisation Commissioner: Bhana Dismissal for assault and fighting Employer failing to prove that employees assaulted residents. The respondent runs an organisation that cares for mentally, physically and intellectually disabled/ill and abused persons of different ages. It houses these residents in several units called houses. Each house has one or more persons in charge of the unit and its residents and these people are commonly called house parents. The applicants were all house parents in charge of different units. They were charged with verbal abuse, assault and threatening to assault residents and dismissed after a disciplinary enquiry. The applicants averred that they were not guilty of the charges and that the dismissal was procedurally unfair in that the chairperson was not impartial and had been involved in the case prior to the enquiry. They alleged that they went to the mens residents to investigate death threats against one of them. There, they

found knives and called in the police to come and investigate. They denied assaulting the residents. They claimed that the police intervened and calmed the situation by scaring off the residents responsible for plotting the death of one of the house parents. The applicants also contended that the chairperson of the hearing had been involved in the investigations. They further challenged the credibility of the respondents witnesses. They claimed that the witnesses were mentally handicapped, and had been coached by the respondent prior to the arbitration hearing. The respondent argued that the applicants had either lied in the disciplinary enquiry or at arbitration. It argued that it was of the opinion that its witnesses were consistent and truthful. The respondent also alleged that the applicants had contradicted each other. It denied biasness during the enquiry. It claimed that there was sufficient proof of the applicants guilt and requested that they not be reinstated or compensated because the trust relationship had been destroyed. Noted: That the respondents witnesses had to be treated with caution as they were mentally disabled. The commissioner noted that one reason for this was that most of them had low IQ levels and the other reason was that the respondents representative had a discussion with the witnesses prior to them testifying. The applicants had also raised the issue of the witnesses being coached prior to testifying. Also noted: That none of the respondents witnesses were very credible or consistent. The commissioner also noted that the respondents witnesses were displayed unstable behaviour during cross-examination, they contradicted each other through out their testimony, and they denied, but later admitted to the plot to kill a house parent. Some witnesses were confused and could not give a clear indication as to where the incident occurred and whether it had taken place at all. The applicants on the other hand were consistent in their testimonies and corroborated much of one anothers versions. Further noted: That the majority of the respondents witnesses had claimed to have heard about the incident, and only two witnesses claimed to have seen it. The commissioner further noted that there had been no evidence presented on the assault charge. Held: That the respondent had failed to prove that the applicants were guilty. Therefore, it was held that the applicants dismissal had been substantively unfair, but procedurally fair as they had failed to prove biasness of the chairperson. Reinstatement was inappropriate as was alleged by the respondent, the commissioner ordered compensation. Case references Plaatjies & Another v Road Accident Fund 1999 1 AIISA at 168 National Employer's General Insurance Co Ltd v Jagers 1984 (4) SA 437 (A) at 440E-G) Blue Ribbon Bakeries v CP Naicker & Others 2000 Case No: D1345/99 (LC)

Patrick Leboho v CCMA 2005 JR689/2004 (LC) GAJB23377-07 BCAWU obo Tlou v Cash Build South Africa - Commissioner: Hintsho Assault Dismissal fair. The applicant was involved in a fight with a fellow employee. The respondent claimed that an assistant manager had found the two employees fighting. The assistant manager tried to stop them, but the applicant continued kicking the other employee. One of the respondents witnesses alleged that the applicant had started the fight. The respondent also claimed that both employees had been charged and, were, subsequently, dismissed. The applicant testified that the fellow employee had provoked him by asking him why he was eating dry brown bread and why he always had no money. He claimed that he responded by telling his co-employee that that was not his business. He claimed that the co-employee started beating him and defended himself by retaliating. The applicant also claimed that the respondents witnesses had been sleeping when the skirmish broke out. He contended that the respondent had only dismissed him and other employee had been dismissed and re-employed. Noted: That fighting and assault are classified as serious misconduct. Held: That the respondent was, therefore, allowed to terminate the employees services on the first offence based on the facts and evidence. The respondents witnesses version was consistent. Also held: That the applicants dismissal had been fair. BRIBERY GAJB14043-07 Magoma v Hi-Fi Corporation Jabulani - Commissioner: Shear Personal gain Applicant receiving money from private delivery transport owners. The applicant was caught by an assistant manager in the act of receiving money from a private transport delivery guy. He was dismissed for accepting money from private delivery transport owners upon referring the respondents customers to them. The applicant claimed that the customer had advised him that she preferred using private delivery transport as the respondents charges for delivery were too expensive. He alleged that the customer, out of her own free will, had entered into some arrangement with the delivery transport owner to have her refrigerator delivered. He denied soliciting money from independent contractors. The applicant challenged the statement that such an occurrence had

been going on for a while, and that he had been receiving money for that. He also claimed that the store manager hated him. The respondent claimed that the employees were not entitled to conduct private work for personal gain without authorisation from management as per the code of conduct. Held: That the applicant had knowingly engaged in the receipt of monies, contrary to the interests of his employer. The commissioner held that the applicant knew that the respondent charged for deliveries, and yet colluded in the solicitation of business for independent contractors. That the applicants dismissal was both procedurally and substantively fair. CONSTRUCTIVE DISMISSAL WE12636-06 van Tonder & Barnard v van der Merwe Commissioner: Crafford Constructive dismissal - Employee had affair with one of the partners. The commissioner had to determine whether the applicant was constructively dismissed. The applicant was employed as a general practitioner by the respondents medical practice. She had an affair with one of the partners. The applicants relationship soured when the partners wife discovered about their relationship. The partner informed the applicant that they could no longer work together as their affair was known. The applicant resigned and lodged a case with the CCMA for constructive dismissal. The respondent denied that he had constructively dismissed the applicant. Noted: That the applicants consultations had been reduced and some of her belongings had been removed from her consulting room by the partners wife. The applicant claimed that she was under extreme pressure to leave the practice and that the working conditions were intolerable. Held: That the fact that the applicant had an affair with her employer does not give the employer a licence to exert pressure on the employee. The applicant proved that she was constructively dismissed. The applicant was awarded compensation equivalent to five months salary. Case references Amalgamated Beverage Industries Ltd v Jinker (1993) 14 ILJ 1232 (LAC) Mafomane v Rustenburg Platinum Mines Ltd (2003) 10 BLLR 999 (LC) WE6277-07 Fitschen v University of Cape Town - Commissioner: Wilson Whether CCMA had jurisdiction to arbitrate amendments of dispute- Employee referred dispute of unfair labour practice Employee amended dispute to be constructive dismissal Application dismissed.

The applicant was employed as a lecturer on a fixed - term contract. She claimed that the respondent had promised to offer her a permanent position on condition that she served a three year probation period. During that probation period, she was required to complete a PhD degree. The applicant found it impossible to complete a PhD while working. She applied for sabbatical leave to further her studies, but was denied. She resigned and claimed that the respondent had committed an unfair labour practice which constituted constructive dismissal. Noted: That the applicants referral forms (both form 7.11 and 7.13) stipulated that the issue in dispute was an alleged unfair labour practice and not constructive dismissal. At no time prior to her resignation did the applicant inform the respondent that the working conditions were intolerable. There was no evidence that the parties had contemplated a constructive dismissal dispute. The real dispute was for unfair labour practice relating to benefits. Held: That CCMA lacked jurisdiction to arbitrate the dispute on an alleged constructive dismissal, but for unfair labour practice as was stipulated before. The application was dismissed. Case references Caci Beauty Salon & Spar v van Heerden & Another (2001) 7 BLLR 737 (LC) NUMSA & Others v Cementation Africa Contracts (Pty) Ltd (1993) 191 ILJ 1203 (LC) Tao Ying Metal Industry (Pty) Ltd & Another v May Pooe & Others (2007) 7 BLLR 583 (SCA) GAJB144008-06 Dreyer v Momentum Commissioner: Juries Constructive dismissal Employee resigned after merger- Conditions of employment had become less favourable. The applicant, a development manager, resigned after a merger. She claimed that her resignation constituted a constructive dismissal as the employment relationship had been rendered intolerable, and that her conditions of employment had been less favourable after the merger than those she had enjoyed with the former employer. The respondent denied that the applicant had been dismissed and claimed that the difficulties which the applicant complained of were normal consequences of a merger. Held: That the respondent had not done anything to render the employment relationship intolerable. It had proved that the applicants conditions of service were more favourable after the merger. The applicant had failed to prove that the respondent refused to rectify the problems which she had complained of. It also indicated that some problems which the applicant complained of were inherited from the previous employer.

Also held: That the applicant had a problem with the manner in which the present company operated. She felt that she was sidelined, marginalised and was no longer consulted or involved in problem solving. The commissioner found that there was no constructive dismissal, the application was dismissed. Case references Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC) 3 Pretoria Society for the Care of Retarded v Loots (1997) 18 ILJ 981 (LAC) Smithkline Beecham (Pty) Ltd v CCMA & Others (2000) 21 ILJ (LC) MP1761-06 SACCAWU obo Malekane v Ellerine Holdings: Commissioner: Byrne Constructive dismissal - Employee resigning because of perceived lack of sympathy by employer after armed robbery at workplace. The applicant had suffered a psychological trauma after the store he worked at was robbed. He took two months unpaid leave to be treated by a traditional healer. The applicant claimed that during his absence, the respondent had phoned him and ordered him to return to work. It also instructed him to sign an acknowledgement of debt for the money that was stolen. The applicant resigned as he felt that the respondent was not sympathetic to him, and alleged that he had been constructively dismissed. The respondent claimed that the applicant had been sent for counselling and refused to attend. It denied forcing the applicant to return to work, indicating that the reason for phoning him was to check progress. It also claimed that the deduction made was to repay the stolen money because the applicant had failed to drop it into the safe. Noted: That the respondent had offered the applicant an alternative employment in a nearby branch but the applicant had declined the offer. Also noted: That the applicant had not made any attempt to contact the respondent to inform it that he was not happy about the situation. Further noted: That the applicants manager had called him upon receiving the resignation letter to discuss the matter. Held: That the applicants resignation was not related to any act or omission by the respondent. The commissioner held that while the respondent might have shown more sympathy, the applicant had not granted management an opportunity to remedy his complaints. The application was, therefore, not constructively dismissed. The case was dismissed. GAPT8737-06 De Jager v Motlhe Jooma Sabdia Incorporated Commissioner: Ntsoane Constructive dismissal Poor work performance of employee - Employee summoned for disciplinary inquiry and she resigned.

The applicant was employed as a senior litigation typist. She was issued with notice of a disciplinary enquiry and resigned before attending it. She then referred a case of constructive dismissal to the CCMA. The applicant alleged that the respondent had impossible demands. When she asked for time off on some Fridays, he would agree, but when Friday came and she wanted to leave, the respondent would give her a pile of files to complete before she leaves. The respondent alleged that the applicant was responsible for compiling a trail list of cases, which was often incomplete or had faults. The respondent alleged that some clients would end up complaining as they were not notified about court dates. The respondent further alleged that the applicant was issued with written warnings due to her poor performance. She complained about overload of work, and new staff members were employed, but the problem of poor performance persisted. Noted: That the respondent argued that when it arranged for disciplinary hearing, it was trying to give the applicant a chance to voice her frustrations. It was noted that the applicant never lodged any grievance against the respondent. The applicant had been sent for counselling several times, but did not improve. Held: That the applicant had realised that the charges against her were serious, and if found guilty she would be dismissed. She decided to resign before the disciplinary enquiry in order to keep her career record clean. By planning to discipline the applicant, the respondent did not make the employment relationship intolerable. Also held: That as the applicant had tendered resignation to avoid a disciplinary hearing, that did not constitute constructive dismissal. The application was dismissed. WE8435-06 Kharva v Oasis Group Holdings (Pty) Ltd Commissioner: van Staden Constructive dismissal- Employee presented with new contract containing restraint of trade clause. The applicant, who was a qualified chemical engineer, resigned after working for four years as a financial analyst. He alleged that he had been constructively dismissed. The applicant alleged that the reason for his resignation was that the respondent had presented him with a new contract of employment which had a more onerous restraint of trade clause. The respondent denied that it had made his continued employment intolerable. It claimed that all its senior executives had willingly signed the new restraint clause. Noted: That the applicant had never referred a formal grievance about his complaint to management. Also noted: That the applicant was invited to participate in a share scheme that would have almost doubled his remuneration.

Held: That it was unbelievable that the respondent would have set out to render intolerable the life of a valued employee. The applicant resigned because he had secured another employment which almost double his salary. Also held: That the applicant had failed to prove that he was constructively dismissed. He was, therefore, ordered to pay the respondents costs of arbitration. Case references Jooste v Transnet Ltd v South African Airways (1995) 16 ILJ 629 (LAC) Lubbe v ABSA Bank Bpk (1998) 1 BLLR 1224 (LAC) Old Mutual Group Schemes v Dreyer (1999) 20 ILJ 2030 (LAC) Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) Sappi Craft (Pty) Ltd t/a Tugela Mill v Majake No & Others (1998) 19 ILJ 1240 (LC) Small & Others v Nqella Creations (Pty) Ltd (1986) 7 ILJ 614 (IC) Zolezzi v BTI Connex Travel (Pty) Ltd (2004) 1 BALR 130 (CCMA) DEFINITION OF AN EMPLOYEE KNDB9566-06 Mthethwa v Athena Interactive Training Network Commissioner: Grobler Employee or independent contractor - Unfair labour practice - Working relationships. After the applicant had terminated his employment with the previous employer, he approached the respondent. The parties agreed that they would form a separate company in which the applicant would hold some of the shares. It was further verbally agreed that the proposed arrangement would be put into effect once the applicant had been sufficiently trained to run the proposed company. The applicant was engaged as a facilitator in the respondents business providing training. The applicant claimed that while negotiations were underway to establish the new company, he had been employed by the respondent. The relationship between the parties was terminated. The applicant claimed that he was unfairly dismissed and referred the case to the CCMA. The commissioner had to determine whether the applicant was employed by the respondent. Noted: That the relationship between the applicant and the respondent had changed over time. The applicant had a business card which showed that he was a director of the respondent. He received a salary, and worked at the respondents offices for eight hours a day, five days a week. The respondent retained facilitators on an independent contract basis. The respondent was paid on completion of a particular assignment and not for time served. Also noted: That the applicant was employed by another entity which was party to that venture.

Held: That the applicant was not an employee but an independent contractor. The application was dismissed. DERIVATIVE MISCONDUCT FS3056-06 SACCAWU obo Abrahams v Markhams - Commissioner: van Aarde Derivative misconduct Applicant failing to report thefts by colleagues Dismissal fair. The applicant, an administrative manager at one of the respondents stores, was dismissed, along with several colleagues, when the respondent was informed by an employee that she and other members of staff had been stealing goods from the store. The informant blew the whistle after police raided her house and discovered stolen goods. The applicant denied involvement in the thefts, and claimed that her dismissal was procedurally unfair because an official of her union had been denied the right to appear at her disciplinary inquiry, leaving her with no option but to withdraw from the inquiry. The respondent submitted that in terms of the collective recognition agreement, representation by a trade union official is not allowed, but either a shop steward or a colleague. Noted: That under the common law, employees owe a duty of care and fidelity to their employers. This includes a duty to report misconduct committed by colleagues. The law encourages whistle-blowing, and protects those who do so. Moreover, if employers cannot identify the actual perpetrators of misconduct, they may, in appropriate circumstances, take disciplinary action against a group. The relationship between employers and employees has as one of its essentials one of trust and confidence, and, even at common law, conduct inconsistent with that essential warranted termination of employment. Failure to assist an employer in bringing the guilty ones to book violates this duty and may itself justify dismissal. This principle has also been extended to cases involving alleged poor work performance. The whistle-blower and a number of her colleagues were involved in a conspiracy to steal goods from the respondent. All the thefts had occurred in the store managers absence, while the applicant was in control. Also noted: That employees charged with misconduct are entitled to be represented at their hearings by colleagues or by shop stewards. The companys disciplinary code did not provide for representation by union officials not employed by the respondent. Held: That there was, accordingly, no basis for the applicants claim that she had been unfairly treated because a union official had been denied the right to represent her, and because the hearing had been held in her absence after she had walked out.

Also held: That the dismissal of the applicant had been both procedurally and substantively fair. The trade union and the applicant were ordered to pay the costs of both the CCMA and the respondent. Case references BMW (SA) (Pty) Ltd v Van der Walt (2000) 21 ILJ 113 (LAC) Chauke & Others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) Council for Scientific & Industrial Research v Fijen (1996) 17 ILJ 18 (A) County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC) F Mkhwanzi & 2 Others v Pep Stores (Pty) Ltd unreported case number KN35074/7 FAWU & Others v ABI Ltd (1994) 15 ILJ 1057 (LAC) FEDCRAW obo Selepe & Others v Snip Trading (Pty) Ltd (2003) case number FS 4666-02 (CCMA) Gemini Indent Agencies CC t/a S & A Marketing v CCMA (1999) 20 ILJ 2872 (LC) Grieve v Denel (Pty) Ltd (2003) (unreported) case number C7/03, dated 16 January 2003 MAWU v IA Bell Equipment Co (unreported) dated 24 September 1986 NUMSA v Transvaal Pressed Nuts, Bolts and Rivets (Pty) Ltd (1988) 9 ILJ 457 (IC) SACCAWU & Others v Cashbuild Ltd (1996) 4 BLLR 457 (IC) SACCAWU v Pep Stores (1998) 18 ILJ 939 (CCMA) SACTWU obo Motaung & Others v Pep Stores (2001) Standard Bank of South Africa v CCMA (1998) 18 ILJ 903 (LC) Wahl v AECI Ltd (1983) 4 ILJ 298 (IC) read with ILO Convention 119 of 1963: Termination of Employment Recommendation DESERTION GAPT5686-06 Mtshekhi v Africa Security Solutions - Commissioner: van Wyk Desertion - Employee dismissed Employee absent from work during a strike. The commissioner was called upon to determine whether the applicant was unfairly dismissed. The applicant was working as a grade D security guard in a private company. He was dismissed from his employment by the respondent after he was absent from work during a strike. The applicant alleged that he was procedurally and substantively unfairly dismissed and sought compensation as a relief. Noted: That the applicant was given a fair opportunity to state his case during an internal disciplinary hearing. The commissioner noted that the applicant had stayed away from work without notifying it the respondent. Held: That the applicant had no right to stay away during the strike as he was not a member of the relevant union. The commissioner found that the dismissal was procedurally and substantively fair. The application was dismissed.

GAJB19819-07 Tshirando v Fidelity Reaction Services - Commissioner: Magwaza Desertion - Employee absent from work without notifying employer. The commissioner had to determine whether the applicant was unfairly dismissed. The respondent argued that despite all efforts to contact the employee, it had not been able to find him. The employee was dismissed for desertion. The applicant claimed that the respondent had dismissed him telephonically without a hearing. Held: That the applicant had been absent from work and had failed to notify his employer of his whereabouts. The allegation that he had been dismissed by telephone was insufficient. The applicant did not give any reason for his failure to contact the respondent after receiving a telegram. The dismissal was fair and the application was dismissed. Case reference Phenithi v Minister of Education & Others (2005) 26 ILJ 1231(O) GAJB21562-07 Motimele v Bennet - Commissioner: Hlogwane Desertion - Employee told to stay at home until employer buys new car. The applicant was employed as chauffer driver. He alleged that he was unfairly dismissed and referred the case to the CCMA seeking compensation. The respondent disputed the existence of a dismissal and contended that the applicant had absconded. The applicant testified that the respondent sold the vehicle which he was driving while performing his duties. He alleged that the respondent told him to stay at home until he bought a new car, but was never contacted. The applicant testified that he met the respondent at the airport while he was busy doing his private business. The applicant alleged that he reminded the respondent that he is still waiting for him to call so that he can continue with his work. The applicant said that the respondent told him that he was no longer going to call him as the applicant was taking his clients. Noted: That the applicant was still having the respondents uniform. He admitted that he gave the respondents clients his phone numbers as it was a company policy to give clients company business cards. The applicant could not remember the date of his dismissal and he could not produce evidence that he was dismissed. Dismissal occurs when an employer terminates an employees services with or without notice. Also noted: That after the applicant was laid off, he was servicing the respondents clients without authorisation.

Held: That was a serious misconduct and it showed that he did not have the intention to continue with his employment. The commissioner found that the applicant was not dismissed but had absconded. The application was dismissed. GAJB28177-06 SACCAWU obo Mudau v Shoprite Commissioner: Magwaza Desertion Employee leaving work without permission. The commissioner was called upon to determine whether the applicant had been dismissed and, if so, to decide whether his dismissal was for a fair reason. The applicant, worked as a packer for 25 years. He was dismissed for allegedly leaving work without permission and for spraying the respondents product for sale without paying for it. He argued that he had long service with the company and a clean work record. Noted: That employees who had committed similar offences were dismissed, and the applicant was supposed to have known it. Held: That it is the respondents right to uphold workplace discipline and sanctions against any transgression. It was noted that the applicant had admitted guilty. The dismissal of the applicant was fair, application was dismissed. DISMISSAL FOR MISCONDUCT GAJB21648-07 Mothibe v Musicman - Commissioner: Sekhabisa Misconduct Employee dismissed for misuse of email. The applicant was dismissed for misusing email. He was charged with: Receiving, sending and storing pornographic material, Overusing the system for personal use, and Not clearing the inbox regularly as expected (there were 1389 messages found in his inbox). The applicant referred case to the CCMA for unfair dismissal. He mentioned that he did not agree with the minutes of the disciplinary hearing as he never admitted that he circulated the e-mails. Noted: That the applicant had attended workshops where they were informed about company rules and policies regarding email usage, clearing of the computer system, prohibition of usage and circulation of pornographic materials. Furthermore, the company policy stipulated that its network infrastructure would be monitored for attempts to probe, circumvent or subvert system or network security measures. Internet users who were granted e-mail facilities should examine and clear their inboxes frequently. Lastly, it stated that services should not be used to visit undesirable sites, and network traffic might be monitored to ensure compliance with the policy.

Also noted: That the technician contracted to the respondent from the IT company had found pornographic materials inside the applicants computer. The applicant did not dispute that his computer was overloaded with messages. Held: That the applicants conduct violated the respondents policy. It was also held that he had committed a serious offence. His dismissal was found to be both substantively and procedurally fair. The application was dismissed. KNDB2639-07 Ngcobo v S.B.V - Commissioner: Nhlabathi Misconduct Employee dismissed Employee hijacked and robbed substantial amount of money. The applicant was employed as an assistant protection officer. He was dismissed for misconduct following a disciplinary enquiry. He referred the case of unfair dismissal to the Road Freight Industry Bargaining Council and the case was referred to the CCMA as the bargaining council did not have jurisdiction. The applicant signed for the vehicle vault key register and took it. He alleged that he was hijacked when he was moving to the lower level of the building and was robbed of a substantial amount of money. The applicant was notified to attend a disciplinary enquiry, and he had requested it to be converted into a consultation meeting. His request was declined as he walked out of the disciplinary hearing. He was advised that the hearing would continue in his absence. Noted: That it was the responsibility of the applicant to ensure that the vehicle vault was locked and that the key was kept in his possession. If the applicant had delegated that responsibility to a subordinate, he should have trained that person on the company procedures. Held: That the applicant was given an opportunity to defend his case at the disciplinary hearing, but had walked out. He knew of the vault key rule but he transgressed it resulting in the loss of R2, 5 million. The commissioner found that the dismissal of the applicant was fair. The application was dismissed. DISMISSAL OR RESIGNATION GAJB6345-07 van Dyk & Automstar 132 (Pty) Ltd v Cleveland Silica Commissioner: Naidoo Dismissal or resignation Employee resigned because respondent swore at him. The applicant, a maintenance manager, commenced to work with the respondent in July 2004. He alleged that he had resigned because the respondent swore at him. He testified that he had resigned on two previous occasions, but had stayed on the employment after the respondent had convinced him to stay. However, the respondent claimed that the applicant had left employment after a quarrel with a co- worker. Noted: That the applicant had admitted that he had resigned from his employment.

Held: That there was no evidence to prove that the respondent had forced the applicant to resign. Even if it transpired that the respondent did swore at the applicant, that did not warrant that the applicant could claim that his work life was intolerable. The commissioner found that the applicant had left the employ of the respondent on own his free will, and was not dismissed as he alleged. The application was dismissed LP613- 07 Adams v Ages Development (Pty) Ltd - Commissioner: Mello Dismissal or resignation - Employee left after signing resignation letter which was written by employer. The commissioner had to determine whether the applicant was unfairly dismissed or had resigned. He left the services of his employer after signing a resignation letter, which was written by the respondent. The applicant claimed that the respondent had forced him to sign that letter. Noted: That the respondent was not happy with the applicants work. When it complained about it, they argued and the applicant packed his tools and left. The respondent admitted that though he did not remember, he could have said unpleasant things to the applicant which forced him to leave work. When the applicant came back to fetch his salary, it was noted that the respondent had asked him to sign the letter before he could pay his salary. Held: That the applicant did not resign from his work, but the respondent had forced him to sign the letter before he could get his salary. If the applicant wanted to resign, he was supposed to write the letter himself. That showed that the respondent no longer needed the services of applicant. The commissioner found that the dismissal was substantively and procedurally unfair. The respondent was ordered to pay the applicant seven months salary. GAJB4858-07 Mpaago v Essat Commissioner: Naidoo Dismissal or resignation Employee not honouring contract of employment. The commissioner was called upon to determine whether the applicant was dismissed or resigned from her work. The applicant did not return to work from leave on the agreed date and the respondent accommodated her by extending leave. The applicant referred a case to the CCMA alleging that she was unfairly dismissed. The respondent disputed that the applicant was dismissed, but argued that she had resigned. Noted: That the applicant did not return from leave on the agreed date and the respondent had accommodated her by extending leave. The applicant did not return to work on the extended date. The evidence showed that the applicant had a tendency of leaving work and return after a period of time when she pleased. Held: That the applicant had breached employment contract by not returning to work. The commissioner found that the applicant was not dismissed, but had left on her free will. The application was dismissed.

GAJB7778-07 Ketso v Mokhotsi - Commissioner: Magwaza Dismissal or resignation Employee terminating contract of employment without notice. The applicant was employed as a domestic worker by the respondent for three years. The parties had an argument relating to work. Upon exchanging words, the applicant left work and did not return. The applicant referred the case to the CCMA alleging that she was unfairly dismissed and sought compensation. The commissioner had to determine whether the applicant was dismissed or had resigned. The respondent argued that the applicant was not dismissed, she left her work without notifying it after they had an argument. Held: That the applicant had left her employment without proper notice. The application was dismissed. DRUNKENNESS ON DUTY ECEL3190-06 Ntoyakhe v Open Arms Home for Children Commissioner: Mare Dismissal Employee dismissed for assault Driving under influence of alcohol Employee offering liquor to a minor The commissioner had to determine whether the dismissal of the applicant was both substantively and procedurally unfair. The applicant was employed as a resident manager at a childrens home run by the respondent. The respondents board dismissed the applicant after he was found guilty of assault, drunken driving, offering a liquor to minor and appearing at work in an intoxicated state. He denied that he was guilty of these offences, except for assault. The applicant claimed that he was provoked. He claimed that the presiding officer was incompetent as he was from outside the respondent. Noted: That the charges of assault and drunken driving were based on a police docket and court record. Held: That the applicant was guilty of dereliction of duties. Also held: That the dismissal was substantively fair but procedurally unfair. The commissioner ordered the respondent to pay the applicant an amount equal to two months salary. Case references Orange Toyota (Kimberley) v van der Walt & Others (2001) 1 BLLR85 (LC) Semenya & Others v CCMA & Others (2006) 6 BLLR 521 (LAC)

KNDB3833-06 Mkatshwa v Bosasa Security (Pty) Ltd - Commissioner: Hiralall Dismissal Employer dismissing employee in absentia - Employee found drunk on duty. The applicant was employed as a security guard. He was found to be under the influence of alcohol while on duty on two consecutive days. It was alleged that he smelt alcohol and the alcohol test showed that he was drunk. The applicant denied that he was drunk on duty. A disciplinary hearing was postponed twice due to his non-appearance and he was, subsequently, dismissed in his absence. He claimed that he was unaware that a disciplinary enquiry had been scheduled. Noted: That on the first occasion, the applicant had been tested with an alcometer, and the test results had proved positive. His supervisor testified that the applicant smelt alcohol and his eyes were bloodshot. The applicant knew that employees were not allowed to be under the influence of alcohol while on duty. Held: That the applicant had admitted to what had happened and was found guilty of the charge. The commissioner found that there was no basis for interfering with the sanction of dismissal, and the respondent could not be blamed under the circumstances. The dismissal of the applicant was substantively and procedurally fair. The application was dismissed. GA14592-04 Malile v Sandblasters & Painting Contractors - Commissioner: Boyce Dismissal Employee found drunk on duty. The commissioner was called upon to determine whether the applicant was unfairly dismissed. The respondent alleged that it had found the applicant under the influence of alcohol while on duty. The applicant attended a disciplinary hearing, was found guilty and dismissed. He claimed that he was denied representation at the disciplinary enquiry. He sought compensation as a relief. Noted: That the applicant alleged that he was not granted a chance to state his case at the disciplinary hearing, not represented and not afforded the services of an interpreter. Held: That the dismissal of the applicant was unfair because the respondent did not follow the correct procedures when dismissing him. The respondent was ordered to pay the applicant compensation equal to 12 weeks salary. GAJB2491-07 Dorfling v Stalle - Commissioner: Mathebula Misconduct Employee dismissed after found under the influence of alcohol. The commissioner had to determine whether the dismissal was both substantively and procedurally fair. The applicant was charged with misconduct after being found under the influence of alcohol. Noted: That the applicant together with his co-worker were found drinking on duty. The respondent sent them home so that they can come the following day,

but the applicant did not come back. The commissioner noted that the employee who was drinking with him was not dismissed. Held: That the respondent was inconsistent when applying its discipline. Also held: That the respondents version was inconsistent and contradictory. The dismissal of the applicant was substantively unfair. The respondent was ordered to compensate the applicant with three months salary.

FAILURE TO PROMOTE GAJB11907-05 Blackburn v SAA - Commissioner: Kleinot Unfair labour practice Failure to promote. The commissioner had to determine whether the respondent had committed an unfair labour practice by failing to promote the applicant. The applicant started working at South African Airways in 1970. In 1985, he was diagnosed with multiple sclerosis and declared unfit to fly by the Institute for Aviation Medicine. The respondent decided to terminate the applicants services. In 1992, the applicant was declared fit again and was issued with a fresh flying licence. The applicant applied for the position of a pilot but his application was rejected. The respondent claimed that he had a surplus of pilots. The applicant applied several times. In 1997 he was appointed as a new appointee. That implied that the applicant would move up to be a senior pilot when those above him die, retire or leave the services of the respondent. Furthermore, the applicant claimed that the respondent had failed to reinstate him as a contributing member to the Transnet Pension Fund. Held: That the respondent had committed an unfair labour practice by failing to re-admit the applicant to the pension fund. There was, however, no ground for unfair labour practice in respect of the adjustment to the senior position. The respondent was ordered to compensate the applicant with 12 months salary and to back-pay him into the Transnet Pension Fund. Case references Cobra Watertech v NUMSA (1995) 6 BLLR 1 (LAC) Department of Justice v CCMA & Others (2004) 4 BLLR 297 (LAC) HOSPERSA & Another v Northern Cape Provincial Government Administration (2000) 21 ILJ 1066 (LAC) KNDB15051-06 Wopula v Isipingo Hospital - Commissioner: Deyzel

Unfair labour practice Employee alleged that she was denied promotion. The applicant was employed as a professional nurse. Later on, she was given the post of acting unit manager of the Orthopaedic ward. She referred the case of unfair labour practice to the CCMA alleging that she was denied promotion. The commissioner was called upon to determine whether the respondent committed an unfair labour practice by failing to promote her. The unit manager of the Orthopaedic ward left the respondents employ during 2005, since then the applicant was acting in that position. The respondent claimed that the main purpose of her acting as a unit manager was to evaluate her competency and work performance. If the respondent was satisfied with the required standard of performance and level of competence, it would have appointed her as unit manager. The acting period was similar to a probation period. Noted: That the respondent had expected a high level of performance from a unit manager. According to the respondent it was noted that the applicant was not promoted to the position due to lack of confidence by the central management committee, as they thought that she would not improve the performance of the unit. Held: That the respondent had not acted unfairly in deciding not to appoint the applicant permanently as a unit manager. The application was dismissed. KNDB12939- 06 Mpanza v United National Breweries - Commissioner: Naidoo Unfair labour practice Employee alleged he was denied permanent position after acting as production manager. The applicant was employed as a quality controller. As a result of the development plan, he was given the position of acting production manager. It was agreed that the applicant would be evaluated, if he performs up to the required standard, he would be offered a permanent position. The position was given to someone else and the applicant felt that he was unfairly treated and referred a case to the CCMA for unfair labour practice. Noted: That the applicant was charged with fraud for claiming overtime when he was still acting as production manager. He was charged, dismissed and he appealed against the sanction. The applicant signed an agreement that he would remain on the position of a quality controller. Held: That the applicant was found guilty of dishonesty. It was, therefore, unreasonable for the respondent to reward the applicant with a promotion. The commissioner found that the applicant had failed to prove that he was unfairly denied promotion or subjected to any form of unfair labour practice. The application was dismissed and the applicant was ordered to pay the costs for postponement of the proceedings. MP924-07 NUM obo Moeng v Douglas Colliery - Commissioner: Mohlala Unfair labour practice Employer declining to appoint employee for promotion post - Employee did not meet requirements.

The applicant had applied unsuccessfully for the post which had been advertised internally and externally. He contended that the respondent had unfairly failed to promote him, claiming that he had all the relevant experience required for the position. The respondent claimed that, initially, the applicant was not short listed as he did not meet the requirements. He was, subsequently, short listed to the post because NUM had requested that he be given exposure for future opportunities. It indicated that the applicant was the third best candidate at the interviews, and was sent for psychometric test after the first two candidates had declined the offer. The respondent also claimed that the applicants outcome of the psychometric test had revealed that the applicant lacked certain skills. It was, therefore, recommended that the post be re-advertised. Selected CCMA Arbitration Awards Summaries: July December 2007 CCMA Research Unit: Operations & Information Department (Head Office) SELECTED CCMA ARBITRATION AWARDS JULY DECEMBER 2007 INDEX Absenteeism 2 Abusive language 3 Agency shop agreement 4 Assault 5 Bribery 6 Constructive dismissal 7 Definition of an employee 10 Derivative misconduct 10 Desertion 11 Dismissals for misconduct 12 Dismissal or resignation 13 Drunkenness on duty 14 Failure to promote 16 Falsification of records

17 Fixed term contract 18 Incapacity 19 Incompatibility 20 Insubordination 20 Job grading 20 Late coming 21 Negligence 21 Organisational rights 23 Retrenchment 23 Right to disciplinary hearing 23 Sexual harassment 24 Sick leave 25 Strike 25 Theft 26 Unfair labour practice 27

ABSENTEEISM GAJB14240-07 Nzembe v Valverde Country Lodge - Commissioner: Serero Absent without permission - Employee sick for four days - Employee produced sick certificate which accounted for one day sick leave - Dismissal unfair. The commissioner was called upon to determine whether the applicant was unfairly dismissed. The applicant had requested permission to leave early as she was sick. The respondent asked her to submit a medical certificate on her return. The applicant was absent from work for four days, when she returned to work, she produced a medical certificate which accounted for only one days absence.

After a disciplinary hearing, she was found guilty of unauthorised absence and was dismissed. The respondent claimed that in terms of the company disciplinary code, unauthorised absence is a dismissible offence. It further alleged that the applicant had failed to produce a medical certificate for the entire period of her illness. The applicant argued that she had phoned the respondent and indicated that she was ill. Noted: That the respondent had failed to explain why the chairperson of the hearing made no reference to the alleged final written warning for insubordination. The chairperson recommended a final written warning because applicant had no relevant warnings. Held: That the respondent was aware that the applicant was ill. The commissioner found that the dismissal was unfair. The respondent was ordered to compensate the applicant with five months salary. GAPT1713-07 SAACAWU obo Ramoalosi v Brikor (Pty) Ltd - Commissioner: Matjie Absent without permission Jailed employee dismissed for failing to inform employer of his whereabouts. It was common cause that the applicant had failed to report for duty from 8 January to 5 February 2007 after the festive season. He was charged with unauthorised absence from work and was subsequently dismissed following a disciplinary hearing. The applicant referred a dispute to the CCMA challenging the fairness of his dismissal and sought reinstatement. The applicant claimed that he was arrested on 13 December 2006 for theft allegation reported by a colleague and was later released on bail. He claimed that on his return to work, he had been denied access into the respondents premises by the security guard as per managements instruction. He also claimed that during the disciplinary hearing, the respondent had denied him an opportunity to call witnesses. The respondent claimed that the applicant had failed to inform it of his whereabouts. It indicated that it had a policy which states that unauthorised absence from work for a period of five or more consecutive days is a dismissible offence. According to the respondent, all employees were aware of the policy. The respondent denied refusing the applicant to call witnesses. It argued that the applicants witnesses were on leave and he was advised to postpone the hearing, but had refused to do so. It also claimed that the applicant had deliberately stayed away from working because of the pending investigation. Noted: That the applicant had testified at the disciplinary hearing that he awaited the outcome of the criminal trial. The commissioner noted that the applicant had only returned to work after the magistrate had advised him to do so.

Also noted: That no satisfactory explanation was given by the applicant for his failure to call witnesses. Held: That the applicant had breached the company rule. The commissioner held that the respondent had succeeded to discharge the onus of proving that the dismissal was fair. The applicants dismissal was, therefore, held to be both procedurally and substantively fair.

FS5879-06 Mthethwa v Capitol Caterers Commissioner: van Aarde Repeated late coming and absenteeism Absent for two weeks Hospitalised Medical certificate submitted to manager. The applicant, was dismissed after he had been absent from work for about two weeks. He claimed that he had been hospitalised after suffering a serious illness, and that his wife had informed the secretary/administration officer about his state of health. On returning to work, he handed the medical certificate to his manager and he was dismissed. Noted: That an employees absence from work due to incapacity warrants a dismissal only if its duration is unreasonable. Absenteeism rarely warrants dismissal at first instance. The elements of absenteeism are that the employee was absent from work, that no permission was given for the absence, and that the employee had failed to inform the employer of the reasons for his absence. Wilful absence from work constitutes a breach of contract and justifies a summary termination of the contract of employment. Also noted: That employees on authorised sick leave cannot be guilty of absenteeism unless it is apparent that the sick leave is being abused. There was no principle of law to support the view, apparently adopted by the respondent, that employees dismiss themselves after a certain period of unauthorised absence. In all such cases, the employer exercised the choice of dismissing the employee. The commissioner also noted that the respondent is not entitled to summarily dismiss an employee for a trifling absence which causes little or no prejudice to the employer. Employers treat absenteeism on a progressive scale when imposing penalties. Dismissal, as a final sanction, is normally justified only if the employee fails to heed the final warning. However, in such cases, it is still incumbent on the employer to prove that the absence did amount to absenteeism. Further noted: That employees cannot be guilty of absenteeism when they are not contractually obliged to render service. Employees on authorised leave, sick leave or maternity leave are entitled to remain away from work for the duration of the specified period.

Held: That the dismissal of the applicant had been both substantively and procedurally unfair. The respondent was ordered to reinstate the applicant and to pay salaries in arrears. Case references CWIU v Boardman Brothers (Natal) (Pty) Ltd (1995) 16 ILJ 619 (LAC) Maleke v Khans Tire & Tube Centre (2006) case number MINT 4119C (MIBCO) MAWU v Horizon Engineering (Pty) Ltd (1989) 10 ILJ 782 (ARB) Mambalu v AECI Explosives Ltd (Zomerveld) (1995) 16 ILJ 960 (IC) Mgobhozi v Naidoo NO & Others (2006) 3 BLLR 242 (LAC) Mkele v SA Breweries Ltd (1991) 12 ILJ 900 (IC) Naidoo v La Mercy Beach Hotel (1996) 1 BLLR 98 (IC) Negro v Continental Spinning & Knitting Mills (Pty) Ltd 1954 (2) SA 203 (W) NUMSA & Others v Steloy Stainless Precision Casting (Pty) Ltd (1995) 7 BLLR 87 (IC) SACWU v Dyasi (2001) 7 BLLR 731 (LAC) Seabelo v Belgravia Hotel (1997) 6 BLLR 829 (CCMA) Sibisi v Gelvendor Textiles (1985) 6 ILJ 122 (IC) South African Broadcasting Corporation v CCMA & Others (2001) 4 BLLR 449 (LC) Dhlamini v Wilco Mall (2006): case number FS 2304-05 (CCMA) Radebe v Harrismith Inn v African Stay Hotel (2006) case number FS 4384-05 (CCMA) ABUSIVE LANGUAGE ECEL1952-05 SACCAWU obo Ludada v Ellerines Holdings Commissioner: Koorts Abusive language Employee dismissed for uttering racist remarks Employee refused to obey instructions. The applicant, who had been employed a sales advisor and a shop steward, was dismissed for allegedly uttering racist remarks to his managers, refusing to obey instructions and failing to update his diary and filing system. It was alleged that the applicant refused to help a white manager to improve sales figures. The respondent alleged that the applicant shouted apartheid when he was suspended. The applicant was called for a disciplinary hearing, found guilty and dismissed. He referred the case of unfair dismissal claiming that the incidents of misconduct did not occur. He also alleged that the presiding officer of the disciplinary hearing was biased. Noted: That the applicant had denied insulting his managers, but did not dispute that he had shouted apartheid when he was suspended or had refused to obey an instruction to update his sales figures. Held: That the applicant had committed a serious misconduct by uttering racist remarks to his managers as those remarks had clear racial connotation, were offensive and abusive.

Also held: That there was no basis for the applicants claim that the presiding officer of the disciplinary hearing was biased. The dismissal was held to be both substantively and procedurally fair. The application was dismissed. Case references CCAWUSA & Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10ILJ 311 (IC) County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC) AGENCY SHOP AGREEMENT KNDB13549-06 Full Range Employers Organisation obo Members v National Bargaining Council for the Clothing Manufacturing Industry Commissioner: Molony Agency shop agreement Whether agency shop can be concluded by council and extended to non-parties. The commissioner was called upon to decide whether the National Bargaining Council for the Clothing Manufacturing Industry (the Council) can conclude an agency shop agreement and extend it to non parties. The applicant argued that it is not possible in terms of the provisions of the LRA for the Council to conclude the agency shop agreement and extend it to non parties who fall within the scope of that council. It was argued that the collective agreement is not binding on members of the employers organisation and cannot, therefore, be enforced. The applicant claimed that while an agency shop agreement is a collective agreement, they differ materially from other collective agreements. It also argued that in terms of s 25 of the LRA, an agency shop agreement can only be entered into between a representative trade union and an employer. The present agreement was reached by parties at the council and, therefore, falls out of the section. It alleged that because the agency shop agreement cannot be entered into at or by a council, it may also not be extended to non-parties to the Council. The respondent argued that s 25 of the LRA cannot be interpreted in isolation as the respondent sought to do. It is part and parcel of the LRA which gives primacy to collective bargaining and majoritarianism. An agency shop agreement arises from collective bargaining and, as such, s 25 of LRA should be interpreted in this context. The LRA does not state that agency shops can only be entered into between employers and trade unions at workplace level. An agency shop agreement is a collective agreement and may, therefore, be concluded at council level, and be extended to non-parties in terms of s 32 of the LRA. The respondent claimed that the applicants case was to attack the validity of the agency shop.

Noted: That the applicant had referred a dispute in terms of s 24(6) of the LRA. The nature of the dispute is not determined by the applicant. An arbitrator has the duty to determine the real nature of the dispute. Also noted: That the applicant in this matter, sought an order to the effect that the collective agreement was not valid because, amongst other reasons, an agency shop agreement cannot be entered into by parties to Council. Held: That the dispute was certainly not about the application and interpretation of a collective agreement. The commissioner, therefore, held that the CCMA lacked jurisdiction over the matter as the purpose of s 25 (1) of the LRA is to make it clear that agency shop agreements are voluntary. It does not limit an agency shop agreement to a workplace, rather, it sets out that such an agreement may voluntarily be entered into at workplace level. Also held: That an agency shop agreement is a collective agreement, whether entered into at workplace level or at council level. It can be extended to non parties like any other collective agreement in term of s 32 of the LRA. The matter was, therefore, dismissed. Case references Amandale Building Materials (Pty) t/a Alltocrete Brickworks & Another v NUM (2002) 11 BLLR 1058 (LC) Crown Cork Company SA (Pty) Ltd v NUMSA (1998) 12 BALR 1615 (IMSSAA) Mineworkers Union & Another v AECI Explosives & Chemical Ltd, Modderfontein Factory (1995) 3 BLLR 58 (IC) NUCW v Oranje Mynbou en Vervoer Maatskappy Bpk (2000) 2 BLLR 196 (LC) Solidarity & Others v Minister of Public Service & Administration (2004) 6 BLLR 593 (LC) ASSAULT LP2082-07 NUM obo Mokome v Lonmin Platinum - Commissioner: Kganyago Dismissal - Employee assaulted miner - Employee wanted to be represented by trade union official at hearing. The applicant was charged for allegedly assaulting a miner. He was called to a disciplinary hearing, and was subsequently dismissed. The applicant appealed that he was supposed to be represented by a trade union official during the disciplinary hearing. He denied that he had assaulted the miner, and alleged that the miner assaulted him first. Noted: That the applicant claimed that he had allegedly assaulted the miner in self defence. Held: That the applicant was not a shop steward. It was, therefore, not necessary for him to be represented by a trade union official.

Also held: That the respondent had done nothing wrong by allowing the applicant to be represented by a fellow employee. The commissioner found that the applicants dismissal was both procedurally and substantively fair. The application was dismissed. WE4777-07 Frans & Others v The Orion Organisation Commissioner: Bhana Dismissal for assault and fighting Employer failing to prove that employees assaulted residents. The respondent runs an organisation that cares for mentally, physically and intellectually disabled/ill and abused persons of different ages. It houses these residents in several units called houses. Each house has one or more persons in charge of the unit and its residents and these people are commonly called house parents. The applicants were all house parents in charge of different units. They were charged with verbal abuse, assault and threatening to assault residents and dismissed after a disciplinary enquiry. The applicants averred that they were not guilty of the charges and that the dismissal was procedurally unfair in that the chairperson was not impartial and had been involved in the case prior to the enquiry. They alleged that they went to the mens residents to investigate death threats against one of them. There, they found knives and called in the police to come and investigate. They denied assaulting the residents. They claimed that the police intervened and calmed the situation by scaring off the residents responsible for plotting the death of one of the house parents. The applicants also contended that the chairperson of the hearing had been involved in the investigations. They further challenged the credibility of the respondents witnesses. They claimed that the witnesses were mentally handicapped, and had been coached by the respondent prior to the arbitration hearing. The respondent argued that the applicants had either lied in the disciplinary enquiry or at arbitration. It argued that it was of the opinion that its witnesses were consistent and truthful. The respondent also alleged that the applicants had contradicted each other. It denied biasness during the enquiry. It claimed that there was sufficient proof of the applicants guilt and requested that they not be reinstated or compensated because the trust relationship had been destroyed. Noted: That the respondents witnesses had to be treated with caution as they were mentally disabled. The commissioner noted that one reason for this was that most of them had low IQ levels and the other reason was that the respondents representative had a discussion with the witnesses prior to them testifying. The applicants had also raised the issue of the witnesses being coached prior to testifying. Also noted: That none of the respondents witnesses were very credible or consistent. The commissioner also noted that the respondents witnesses were displayed unstable behaviour during cross-examination, they contradicted each other through out their testimony, and they denied, but later admitted to the plot to kill a house parent. Some witnesses were confused and could not give a clear

indication as to where the incident occurred and whether it had taken place at all. The applicants on the other hand were consistent in their testimonies and corroborated much of one anothers versions. Further noted: That the majority of the respondents witnesses had claimed to have heard about the incident, and only two witnesses claimed to have seen it. The commissioner further noted that there had been no evidence presented on the assault charge. Held: That the respondent had failed to prove that the applicants were guilty. Therefore, it was held that the applicants dismissal had been substantively unfair, but procedurally fair as they had failed to prove biasness of the chairperson. Reinstatement was inappropriate as was alleged by the respondent, the commissioner ordered compensation. Case references Plaatjies & Another v Road Accident Fund 1999 1 AIISA at 168 National Employer's General Insurance Co Ltd v Jagers 1984 (4) SA 437 (A) at 440E-G) Blue Ribbon Bakeries v CP Naicker & Others 2000 Case No: D1345/99 (LC) Patrick Leboho v CCMA 2005 JR689/2004 (LC) GAJB23377-07 BCAWU obo Tlou v Cash Build South Africa - Commissioner: Hintsho Assault Dismissal fair. The applicant was involved in a fight with a fellow employee. The respondent claimed that an assistant manager had found the two employees fighting. The assistant manager tried to stop them, but the applicant continued kicking the other employee. One of the respondents witnesses alleged that the applicant had started the fight. The respondent also claimed that both employees had been charged and, were, subsequently, dismissed. The applicant testified that the fellow employee had provoked him by asking him why he was eating dry brown bread and why he always had no money. He claimed that he responded by telling his co-employee that that was not his business. He claimed that the co-employee started beating him and defended himself by retaliating. The applicant also claimed that the respondents witnesses had been sleeping when the skirmish broke out. He contended that the respondent had only dismissed him and other employee had been dismissed and re-employed. Noted: That fighting and assault are classified as serious misconduct. Held: That the respondent was, therefore, allowed to terminate the employees services on the first offence based on the facts and evidence. The respondents witnesses version was consistent.

Also held: That the applicants dismissal had been fair. BRIBERY GAJB14043-07 Magoma v Hi-Fi Corporation Jabulani - Commissioner: Shear Personal gain Applicant receiving money from private delivery transport owners. The applicant was caught by an assistant manager in the act of receiving money from a private transport delivery guy. He was dismissed for accepting money from private delivery transport owners upon referring the respondents customers to them. The applicant claimed that the customer had advised him that she preferred using private delivery transport as the respondents charges for delivery were too expensive. He alleged that the customer, out of her own free will, had entered into some arrangement with the delivery transport owner to have her refrigerator delivered. He denied soliciting money from independent contractors. The applicant challenged the statement that such an occurrence had been going on for a while, and that he had been receiving money for that. He also claimed that the store manager hated him. The respondent claimed that the employees were not entitled to conduct private work for personal gain without authorisation from management as per the code of conduct. Held: That the applicant had knowingly engaged in the receipt of monies, contrary to the interests of his employer. The commissioner held that the applicant knew that the respondent charged for deliveries, and yet colluded in the solicitation of business for independent contractors. That the applicants dismissal was both procedurally and substantively fair. CONSTRUCTIVE DISMISSAL WE12636-06 van Tonder & Barnard v van der Merwe Commissioner: Crafford Constructive dismissal - Employee had affair with one of the partners. The commissioner had to determine whether the applicant was constructively dismissed. The applicant was employed as a general practitioner by the respondents medical practice. She had an affair with one of the partners. The applicants relationship soured when the partners wife discovered about their relationship. The partner informed the applicant that they could no longer work together as their affair was known. The applicant resigned and lodged a case with the CCMA for constructive dismissal. The respondent denied that he had constructively dismissed the applicant.

Noted: That the applicants consultations had been reduced and some of her belongings had been removed from her consulting room by the partners wife. The applicant claimed that she was under extreme pressure to leave the practice and that the working conditions were intolerable. Held: That the fact that the applicant had an affair with her employer does not give the employer a licence to exert pressure on the employee. The applicant proved that she was constructively dismissed. The applicant was awarded compensation equivalent to five months salary. Case references Amalgamated Beverage Industries Ltd v Jinker (1993) 14 ILJ 1232 (LAC) Mafomane v Rustenburg Platinum Mines Ltd (2003) 10 BLLR 999 (LC) WE6277-07 Fitschen v University of Cape Town - Commissioner: Wilson Whether CCMA had jurisdiction to arbitrate amendments of dispute- Employee referred dispute of unfair labour practice Employee amended dispute to be constructive dismissal Application dismissed. The applicant was employed as a lecturer on a fixed - term contract. She claimed that the respondent had promised to offer her a permanent position on condition that she served a three year probation period. During that probation period, she was required to complete a PhD degree. The applicant found it impossible to complete a PhD while working. She applied for sabbatical leave to further her studies, but was denied. She resigned and claimed that the respondent had committed an unfair labour practice which constituted constructive dismissal. Noted: That the applicants referral forms (both form 7.11 and 7.13) stipulated that the issue in dispute was an alleged unfair labour practice and not constructive dismissal. At no time prior to her resignation did the applicant inform the respondent that the working conditions were intolerable. There was no evidence that the parties had contemplated a constructive dismissal dispute. The real dispute was for unfair labour practice relating to benefits. Held: That CCMA lacked jurisdiction to arbitrate the dispute on an alleged constructive dismissal, but for unfair labour practice as was stipulated before. The application was dismissed. Case references Caci Beauty Salon & Spar v van Heerden & Another (2001) 7 BLLR 737 (LC) NUMSA & Others v Cementation Africa Contracts (Pty) Ltd (1993) 191 ILJ 1203 (LC) Tao Ying Metal Industry (Pty) Ltd & Another v May Pooe & Others (2007) 7 BLLR 583 (SCA) GAJB144008-06 Dreyer v Momentum Commissioner: Juries

Constructive dismissal Employee resigned after merger- Conditions of employment had become less favourable. The applicant, a development manager, resigned after a merger. She claimed that her resignation constituted a constructive dismissal as the employment relationship had been rendered intolerable, and that her conditions of employment had been less favourable after the merger than those she had enjoyed with the former employer. The respondent denied that the applicant had been dismissed and claimed that the difficulties which the applicant complained of were normal consequences of a merger. Held: That the respondent had not done anything to render the employment relationship intolerable. It had proved that the applicants conditions of service were more favourable after the merger. The applicant had failed to prove that the respondent refused to rectify the problems which she had complained of. It also indicated that some problems which the applicant complained of were inherited from the previous employer. Also held: That the applicant had a problem with the manner in which the present company operated. She felt that she was sidelined, marginalised and was no longer consulted or involved in problem solving. The commissioner found that there was no constructive dismissal, the application was dismissed. Case references Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC) 3 Pretoria Society for the Care of Retarded v Loots (1997) 18 ILJ 981 (LAC) Smithkline Beecham (Pty) Ltd v CCMA & Others (2000) 21 ILJ (LC) MP1761-06 SACCAWU obo Malekane v Ellerine Holdings: Commissioner: Byrne Constructive dismissal - Employee resigning because of perceived lack of sympathy by employer after armed robbery at workplace. The applicant had suffered a psychological trauma after the store he worked at was robbed. He took two months unpaid leave to be treated by a traditional healer. The applicant claimed that during his absence, the respondent had phoned him and ordered him to return to work. It also instructed him to sign an acknowledgement of debt for the money that was stolen. The applicant resigned as he felt that the respondent was not sympathetic to him, and alleged that he had been constructively dismissed. The respondent claimed that the applicant had been sent for counselling and refused to attend. It denied forcing the applicant to return to work, indicating that the reason for phoning him was to check progress. It also claimed that the deduction made was to repay the stolen money because the applicant had failed to drop it into the safe.

Noted: That the respondent had offered the applicant an alternative employment in a nearby branch but the applicant had declined the offer. Also noted: That the applicant had not made any attempt to contact the respondent to inform it that he was not happy about the situation. Further noted: That the applicants manager had called him upon receiving the resignation letter to discuss the matter. Held: That the applicants resignation was not related to any act or omission by the respondent. The commissioner held that while the respondent might have shown more sympathy, the applicant had not granted management an opportunity to remedy his complaints. The application was, therefore, not constructively dismissed. The case was dismissed. GAPT8737-06 De Jager v Motlhe Jooma Sabdia Incorporated Commissioner: Ntsoane Constructive dismissal Poor work performance of employee - Employee summoned for disciplinary inquiry and she resigned. The applicant was employed as a senior litigation typist. She was issued with notice of a disciplinary enquiry and resigned before attending it. She then referred a case of constructive dismissal to the CCMA. The applicant alleged that the respondent had impossible demands. When she asked for time off on some Fridays, he would agree, but when Friday came and she wanted to leave, the respondent would give her a pile of files to complete before she leaves. The respondent alleged that the applicant was responsible for compiling a trail list of cases, which was often incomplete or had faults. The respondent alleged that some clients would end up complaining as they were not notified about court dates. The respondent further alleged that the applicant was issued with written warnings due to her poor performance. She complained about overload of work, and new staff members were employed, but the problem of poor performance persisted. Noted: That the respondent argued that when it arranged for disciplinary hearing, it was trying to give the applicant a chance to voice her frustrations. It was noted that the applicant never lodged any grievance against the respondent. The applicant had been sent for counselling several times, but did not improve. Held: That the applicant had realised that the charges against her were serious, and if found guilty she would be dismissed. She decided to resign before the disciplinary enquiry in order to keep her career record clean. By planning to discipline the applicant, the respondent did not make the employment relationship intolerable. Also held: That as the applicant had tendered resignation to avoid a disciplinary hearing, that did not constitute constructive dismissal. The application was dismissed.

WE8435-06 Kharva v Oasis Group Holdings (Pty) Ltd Commissioner: van Staden Constructive dismissal- Employee presented with new contract containing restraint of trade clause. The applicant, who was a qualified chemical engineer, resigned after working for four years as a financial analyst. He alleged that he had been constructively dismissed. The applicant alleged that the reason for his resignation was that the respondent had presented him with a new contract of employment which had a more onerous restraint of trade clause. The respondent denied that it had made his continued employment intolerable. It claimed that all its senior executives had willingly signed the new restraint clause. Noted: That the applicant had never referred a formal grievance about his complaint to management. Also noted: That the applicant was invited to participate in a share scheme that would have almost doubled his remuneration. Held: That it was unbelievable that the respondent would have set out to render intolerable the life of a valued employee. The applicant resigned because he had secured another employment which almost double his salary. Also held: That the applicant had failed to prove that he was constructively dismissed. He was, therefore, ordered to pay the respondents costs of arbitration. Case references Jooste v Transnet Ltd v South African Airways (1995) 16 ILJ 629 (LAC) Lubbe v ABSA Bank Bpk (1998) 1 BLLR 1224 (LAC) Old Mutual Group Schemes v Dreyer (1999) 20 ILJ 2030 (LAC) Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) Sappi Craft (Pty) Ltd t/a Tugela Mill v Majake No & Others (1998) 19 ILJ 1240 (LC) Small & Others v Nqella Creations (Pty) Ltd (1986) 7 ILJ 614 (IC) Zolezzi v BTI Connex Travel (Pty) Ltd (2004) 1 BALR 130 (CCMA) DEFINITION OF AN EMPLOYEE KNDB9566-06 Mthethwa v Athena Interactive Training Network Commissioner: Grobler Employee or independent contractor - Unfair labour practice - Working relationships. After the applicant had terminated his employment with the previous employer, he approached the respondent. The parties agreed that they would form a separate company in which the applicant would hold some of the shares. It was

further verbally agreed that the proposed arrangement would be put into effect once the applicant had been sufficiently trained to run the proposed company. The applicant was engaged as a facilitator in the respondents business providing training. The applicant claimed that while negotiations were underway to establish the new company, he had been employed by the respondent. The relationship between the parties was terminated. The applicant claimed that he was unfairly dismissed and referred the case to the CCMA. The commissioner had to determine whether the applicant was employed by the respondent. Noted: That the relationship between the applicant and the respondent had changed over time. The applicant had a business card which showed that he was a director of the respondent. He received a salary, and worked at the respondents offices for eight hours a day, five days a week. The respondent retained facilitators on an independent contract basis. The respondent was paid on completion of a particular assignment and not for time served. Also noted: That the applicant was employed by another entity which was party to that venture. Held: That the applicant was not an employee but an independent contractor. The application was dismissed. DERIVATIVE MISCONDUCT FS3056-06 SACCAWU obo Abrahams v Markhams - Commissioner: van Aarde Derivative misconduct Applicant failing to report thefts by colleagues Dismissal fair. The applicant, an administrative manager at one of the respondents stores, was dismissed, along with several colleagues, when the respondent was informed by an employee that she and other members of staff had been stealing goods from the store. The informant blew the whistle after police raided her house and discovered stolen goods. The applicant denied involvement in the thefts, and claimed that her dismissal was procedurally unfair because an official of her union had been denied the right to appear at her disciplinary inquiry, leaving her with no option but to withdraw from the inquiry. The respondent submitted that in terms of the collective recognition agreement, representation by a trade union official is not allowed, but either a shop steward or a colleague. Noted: That under the common law, employees owe a duty of care and fidelity to their employers. This includes a duty to report misconduct committed by colleagues. The law encourages whistle-blowing, and protects those who do so. Moreover, if employers cannot identify the actual perpetrators of misconduct, they may, in appropriate circumstances, take disciplinary action against a group. The relationship between employers and employees has as one of its essentials

one of trust and confidence, and, even at common law, conduct inconsistent with that essential warranted termination of employment. Failure to assist an employer in bringing the guilty ones to book violates this duty and may itself justify dismissal. This principle has also been extended to cases involving alleged poor work performance. The whistle-blower and a number of her colleagues were involved in a conspiracy to steal goods from the respondent. All the thefts had occurred in the store managers absence, while the applicant was in control. Also noted: That employees charged with misconduct are entitled to be represented at their hearings by colleagues or by shop stewards. The companys disciplinary code did not provide for representation by union officials not employed by the respondent. Held: That there was, accordingly, no basis for the applicants claim that she had been unfairly treated because a union official had been denied the right to represent her, and because the hearing had been held in her absence after she had walked out. Also held: That the dismissal of the applicant had been both procedurally and substantively fair. The trade union and the applicant were ordered to pay the costs of both the CCMA and the respondent. Case references BMW (SA) (Pty) Ltd v Van der Walt (2000) 21 ILJ 113 (LAC) Chauke & Others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) Council for Scientific & Industrial Research v Fijen (1996) 17 ILJ 18 (A) County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC) F Mkhwanzi & 2 Others v Pep Stores (Pty) Ltd unreported case number KN35074/7 FAWU & Others v ABI Ltd (1994) 15 ILJ 1057 (LAC) FEDCRAW obo Selepe & Others v Snip Trading (Pty) Ltd (2003) case number FS 4666-02 (CCMA) Gemini Indent Agencies CC t/a S & A Marketing v CCMA (1999) 20 ILJ 2872 (LC) Grieve v Denel (Pty) Ltd (2003) (unreported) case number C7/03, dated 16 January 2003 MAWU v IA Bell Equipment Co (unreported) dated 24 September 1986 NUMSA v Transvaal Pressed Nuts, Bolts and Rivets (Pty) Ltd (1988) 9 ILJ 457 (IC) SACCAWU & Others v Cashbuild Ltd (1996) 4 BLLR 457 (IC) SACCAWU v Pep Stores (1998) 18 ILJ 939 (CCMA) SACTWU obo Motaung & Others v Pep Stores (2001) Standard Bank of South Africa v CCMA (1998) 18 ILJ 903 (LC) Wahl v AECI Ltd (1983) 4 ILJ 298 (IC) read with ILO Convention 119 of 1963: Termination of Employment Recommendation DESERTION

GAPT5686-06 Mtshekhi v Africa Security Solutions - Commissioner: van Wyk Desertion - Employee dismissed Employee absent from work during a strike. The commissioner was called upon to determine whether the applicant was unfairly dismissed. The applicant was working as a grade D security guard in a private company. He was dismissed from his employment by the respondent after he was absent from work during a strike. The applicant alleged that he was procedurally and substantively unfairly dismissed and sought compensation as a relief. Noted: That the applicant was given a fair opportunity to state his case during an internal disciplinary hearing. The commissioner noted that the applicant had stayed away from work without notifying it the respondent. Held: That the applicant had no right to stay away during the strike as he was not a member of the relevant union. The commissioner found that the dismissal was procedurally and substantively fair. The application was dismissed. GAJB19819-07 Tshirando v Fidelity Reaction Services - Commissioner: Magwaza Desertion - Employee absent from work without notifying employer. The commissioner had to determine whether the applicant was unfairly dismissed. The respondent argued that despite all efforts to contact the employee, it had not been able to find him. The employee was dismissed for desertion. The applicant claimed that the respondent had dismissed him telephonically without a hearing. Held: That the applicant had been absent from work and had failed to notify his employer of his whereabouts. The allegation that he had been dismissed by telephone was insufficient. The applicant did not give any reason for his failure to contact the respondent after receiving a telegram. The dismissal was fair and the application was dismissed. Case reference Phenithi v Minister of Education & Others (2005) 26 ILJ 1231(O) GAJB21562-07 Motimele v Bennet - Commissioner: Hlogwane Desertion - Employee told to stay at home until employer buys new car. The applicant was employed as chauffer driver. He alleged that he was unfairly dismissed and referred the case to the CCMA seeking compensation. The respondent disputed the existence of a dismissal and contended that the applicant had absconded. The applicant testified that the respondent sold the vehicle which he was driving while performing his duties. He alleged that the respondent told him to stay at

home until he bought a new car, but was never contacted. The applicant testified that he met the respondent at the airport while he was busy doing his private business. The applicant alleged that he reminded the respondent that he is still waiting for him to call so that he can continue with his work. The applicant said that the respondent told him that he was no longer going to call him as the applicant was taking his clients. Noted: That the applicant was still having the respondents uniform. He admitted that he gave the respondents clients his phone numbers as it was a company policy to give clients company business cards. The applicant could not remember the date of his dismissal and he could not produce evidence that he was dismissed. Dismissal occurs when an employer terminates an employees services with or without notice. Also noted: That after the applicant was laid off, he was servicing the respondents clients without authorisation. Held: That was a serious misconduct and it showed that he did not have the intention to continue with his employment. The commissioner found that the applicant was not dismissed but had absconded. The application was dismissed. GAJB28177-06 SACCAWU obo Mudau v Shoprite Commissioner: Magwaza Desertion Employee leaving work without permission. The commissioner was called upon to determine whether the applicant had been dismissed and, if so, to decide whether his dismissal was for a fair reason. The applicant, worked as a packer for 25 years. He was dismissed for allegedly leaving work without permission and for spraying the respondents product for sale without paying for it. He argued that he had long service with the company and a clean work record. Noted: That employees who had committed similar offences were dismissed, and the applicant was supposed to have known it. Held: That it is the respondents right to uphold workplace discipline and sanctions against any transgression. It was noted that the applicant had admitted guilty. The dismissal of the applicant was fair, application was dismissed. DISMISSAL FOR MISCONDUCT GAJB21648-07 Mothibe v Musicman - Commissioner: Sekhabisa Misconduct Employee dismissed for misuse of email. The applicant was dismissed for misusing email. He was charged with: Receiving, sending and storing pornographic material, Overusing the system for personal use, and Not clearing the inbox regularly as expected (there were 1389 messages found in his inbox).

The applicant referred case to the CCMA for unfair dismissal. He mentioned that he did not agree with the minutes of the disciplinary hearing as he never admitted that he circulated the e-mails. Noted: That the applicant had attended workshops where they were informed about company rules and policies regarding email usage, clearing of the computer system, prohibition of usage and circulation of pornographic materials. Furthermore, the company policy stipulated that its network infrastructure would be monitored for attempts to probe, circumvent or subvert system or network security measures. Internet users who were granted e-mail facilities should examine and clear their inboxes frequently. Lastly, it stated that services should not be used to visit undesirable sites, and network traffic might be monitored to ensure compliance with the policy. Also noted: That the technician contracted to the respondent from the IT company had found pornographic materials inside the applicants computer. The applicant did not dispute that his computer was overloaded with messages. Held: That the applicants conduct violated the respondents policy. It was also held that he had committed a serious offence. His dismissal was found to be both substantively and procedurally fair. The application was dismissed. KNDB2639-07 Ngcobo v S.B.V - Commissioner: Nhlabathi Misconduct Employee dismissed Employee hijacked and robbed substantial amount of money. The applicant was employed as an assistant protection officer. He was dismissed for misconduct following a disciplinary enquiry. He referred the case of unfair dismissal to the Road Freight Industry Bargaining Council and the case was referred to the CCMA as the bargaining council did not have jurisdiction. The applicant signed for the vehicle vault key register and took it. He alleged that he was hijacked when he was moving to the lower level of the building and was robbed of a substantial amount of money. The applicant was notified to attend a disciplinary enquiry, and he had requested it to be converted into a consultation meeting. His request was declined as he walked out of the disciplinary hearing. He was advised that the hearing would continue in his absence. Noted: That it was the responsibility of the applicant to ensure that the vehicle vault was locked and that the key was kept in his possession. If the applicant had delegated that responsibility to a subordinate, he should have trained that person on the company procedures. Held: That the applicant was given an opportunity to defend his case at the disciplinary hearing, but had walked out. He knew of the vault key rule but he transgressed it resulting in the loss of R2, 5 million. The commissioner found that the dismissal of the applicant was fair. The application was dismissed. DISMISSAL OR RESIGNATION

GAJB6345-07 van Dyk & Automstar 132 (Pty) Ltd v Cleveland Silica Commissioner: Naidoo Dismissal or resignation Employee resigned because respondent swore at him. The applicant, a maintenance manager, commenced to work with the respondent in July 2004. He alleged that he had resigned because the respondent swore at him. He testified that he had resigned on two previous occasions, but had stayed on the employment after the respondent had convinced him to stay. However, the respondent claimed that the applicant had left employment after a quarrel with a co- worker. Noted: That the applicant had admitted that he had resigned from his employment. Held: That there was no evidence to prove that the respondent had forced the applicant to resign. Even if it transpired that the respondent did swore at the applicant, that did not warrant that the applicant could claim that his work life was intolerable. The commissioner found that the applicant had left the employ of the respondent on own his free will, and was not dismissed as he alleged. The application was dismissed LP613- 07 Adams v Ages Development (Pty) Ltd - Commissioner: Mello Dismissal or resignation - Employee left after signing resignation letter which was written by employer. The commissioner had to determine whether the applicant was unfairly dismissed or had resigned. He left the services of his employer after signing a resignation letter, which was written by the respondent. The applicant claimed that the respondent had forced him to sign that letter. Noted: That the respondent was not happy with the applicants work. When it complained about it, they argued and the applicant packed his tools and left. The respondent admitted that though he did not remember, he could have said unpleasant things to the applicant which forced him to leave work. When the applicant came back to fetch his salary, it was noted that the respondent had asked him to sign the letter before he could pay his salary. Held: That the applicant did not resign from his work, but the respondent had forced him to sign the letter before he could get his salary. If the applicant wanted to resign, he was supposed to write the letter himself. That showed that the respondent no longer needed the services of applicant. The commissioner found that the dismissal was substantively and procedurally unfair. The respondent was ordered to pay the applicant seven months salary. GAJB4858-07 Mpaago v Essat Commissioner: Naidoo Dismissal or resignation Employee not honouring contract of employment.

The commissioner was called upon to determine whether the applicant was dismissed or resigned from her work. The applicant did not return to work from leave on the agreed date and the respondent accommodated her by extending leave. The applicant referred a case to the CCMA alleging that she was unfairly dismissed. The respondent disputed that the applicant was dismissed, but argued that she had resigned. Noted: That the applicant did not return from leave on the agreed date and the respondent had accommodated her by extending leave. The applicant did not return to work on the extended date. The evidence showed that the applicant had a tendency of leaving work and return after a period of time when she pleased. Held: That the applicant had breached employment contract by not returning to work. The commissioner found that the applicant was not dismissed, but had left on her free will. The application was dismissed. GAJB7778-07 Ketso v Mokhotsi - Commissioner: Magwaza Dismissal or resignation Employee terminating contract of employment without notice. The applicant was employed as a domestic worker by the respondent for three years. The parties had an argument relating to work. Upon exchanging words, the applicant left work and did not return. The applicant referred the case to the CCMA alleging that she was unfairly dismissed and sought compensation. The commissioner had to determine whether the applicant was dismissed or had resigned. The respondent argued that the applicant was not dismissed, she left her work without notifying it after they had an argument. Held: That the applicant had left her employment without proper notice. The application was dismissed. DRUNKENNESS ON DUTY ECEL3190-06 Ntoyakhe v Open Arms Home for Children Commissioner: Mare Dismissal Employee dismissed for assault Driving under influence of alcohol Employee offering liquor to a minor The commissioner had to determine whether the dismissal of the applicant was both substantively and procedurally unfair. The applicant was employed as a resident manager at a childrens home run by the respondent. The respondents board dismissed the applicant after he was found guilty of assault, drunken driving, offering a liquor to minor and appearing at work in an intoxicated state. He denied that he was guilty of these offences, except for assault. The applicant claimed that he was provoked.

He claimed that the presiding officer was incompetent as he was from outside the respondent. Noted: That the charges of assault and drunken driving were based on a police docket and court record. Held: That the applicant was guilty of dereliction of duties. Also held: That the dismissal was substantively fair but procedurally unfair. The commissioner ordered the respondent to pay the applicant an amount equal to two months salary. Case references Orange Toyota (Kimberley) v van der Walt & Others (2001) 1 BLLR85 (LC) Semenya & Others v CCMA & Others (2006) 6 BLLR 521 (LAC) KNDB3833-06 Mkatshwa v Bosasa Security (Pty) Ltd - Commissioner: Hiralall Dismissal Employer dismissing employee in absentia - Employee found drunk on duty. The applicant was employed as a security guard. He was found to be under the influence of alcohol while on duty on two consecutive days. It was alleged that he smelt alcohol and the alcohol test showed that he was drunk. The applicant denied that he was drunk on duty. A disciplinary hearing was postponed twice due to his non-appearance and he was, subsequently, dismissed in his absence. He claimed that he was unaware that a disciplinary enquiry had been scheduled. Noted: That on the first occasion, the applicant had been tested with an alcometer, and the test results had proved positive. His supervisor testified that the applicant smelt alcohol and his eyes were bloodshot. The applicant knew that employees were not allowed to be under the influence of alcohol while on duty. Held: That the applicant had admitted to what had happened and was found guilty of the charge. The commissioner found that there was no basis for interfering with the sanction of dismissal, and the respondent could not be blamed under the circumstances. The dismissal of the applicant was substantively and procedurally fair. The application was dismissed. GA14592-04 Malile v Sandblasters & Painting Contractors - Commissioner: Boyce Dismissal Employee found drunk on duty. The commissioner was called upon to determine whether the applicant was unfairly dismissed. The respondent alleged that it had found the applicant under the influence of alcohol while on duty. The applicant attended a disciplinary hearing, was found guilty and dismissed. He claimed that he was denied representation at the disciplinary enquiry. He sought compensation as a relief.

Noted: That the applicant alleged that he was not granted a chance to state his case at the disciplinary hearing, not represented and not afforded the services of an interpreter. Held: That the dismissal of the applicant was unfair because the respondent did not follow the correct procedures when dismissing him. The respondent was ordered to pay the applicant compensation equal to 12 weeks salary. GAJB2491-07 Dorfling v Stalle - Commissioner: Mathebula Misconduct Employee dismissed after found under the influence of alcohol. The commissioner had to determine whether the dismissal was both substantively and procedurally fair. The applicant was charged with misconduct after being found under the influence of alcohol. Noted: That the applicant together with his co-worker were found drinking on duty. The respondent sent them home so that they can come the following day, but the applicant did not come back. The commissioner noted that the employee who was drinking with him was not dismissed. Held: That the respondent was inconsistent when applying its discipline. Also held: That the respondents version was inconsistent and contradictory. The dismissal of the applicant was substantively unfair. The respondent was ordered to compensate the applicant with three months salary.

FAILURE TO PROMOTE GAJB11907-05 Blackburn v SAA - Commissioner: Kleinot Unfair labour practice Failure to promote. The commissioner had to determine whether the respondent had committed an unfair labour practice by failing to promote the applicant. The applicant started working at South African Airways in 1970. In 1985, he was diagnosed with multiple sclerosis and declared unfit to fly by the Institute for Aviation Medicine. The respondent decided to terminate the applicants services. In 1992, the applicant was declared fit again and was issued with a fresh flying licence. The applicant applied for the position of a pilot but his application was rejected. The respondent claimed that he had a surplus of pilots. The applicant applied several times. In 1997 he was appointed as a new appointee. That implied that the applicant would move up to be a senior pilot when those above him die, retire or leave the services of the respondent.

Furthermore, the applicant claimed that the respondent had failed to reinstate him as a contributing member to the Transnet Pension Fund. Held: That the respondent had committed an unfair labour practice by failing to re-admit the applicant to the pension fund. There was, however, no ground for unfair labour practice in respect of the adjustment to the senior position. The respondent was ordered to compensate the applicant with 12 months salary and to back-pay him into the Transnet Pension Fund. Case references Cobra Watertech v NUMSA (1995) 6 BLLR 1 (LAC) Department of Justice v CCMA & Others (2004) 4 BLLR 297 (LAC) HOSPERSA & Another v Northern Cape Provincial Government Administration (2000) 21 ILJ 1066 (LAC) KNDB15051-06 Wopula v Isipingo Hospital - Commissioner: Deyzel Unfair labour practice Employee alleged that she was denied promotion. The applicant was employed as a professional nurse. Later on, she was given the post of acting unit manager of the Orthopaedic ward. She referred the case of unfair labour practice to the CCMA alleging that she was denied promotion. The commissioner was called upon to determine whether the respondent committed an unfair labour practice by failing to promote her. The unit manager of the Orthopaedic ward left the respondents employ during 2005, since then the applicant was acting in that position. The respondent claimed that the main purpose of her acting as a unit manager was to evaluate her competency and work performance. If the respondent was satisfied with the required standard of performance and level of competence, it would have appointed her as unit manager. The acting period was similar to a probation period. Noted: That the respondent had expected a high level of performance from a unit manager. According to the respondent it was noted that the applicant was not promoted to the position due to lack of confidence by the central management committee, as they thought that she would not improve the performance of the unit. Held: That the respondent had not acted unfairly in deciding not to appoint the applicant permanently as a unit manager. The application was dismissed. KNDB12939- 06 Mpanza v United National Breweries - Commissioner: Naidoo Unfair labour practice Employee alleged he was denied permanent position after acting as production manager. The applicant was employed as a quality controller. As a result of the development plan, he was given the position of acting production manager. It was agreed that the applicant would be evaluated, if he performs up to the required standard, he would be offered a permanent position. The position was

given to someone else and the applicant felt that he was unfairly treated and referred a case to the CCMA for unfair labour practice. Noted: That the applicant was charged with fraud for claiming overtime when he was still acting as production manager. He was charged, dismissed and he appealed against the sanction. The applicant signed an agreement that he would remain on the position of a quality controller. Held: That the applicant was found guilty of dishonesty. It was, therefore, unreasonable for the respondent to reward the applicant with a promotion. The commissioner found that the applicant had failed to prove that he was unfairly denied promotion or subjected to any form of unfair labour practice. The application was dismissed and the applicant was ordered to pay the costs for postponement of the proceedings. MP924-07 NUM obo Moeng v Douglas Colliery - Commissioner: Mohlala Unfair labour practice Employer declining to appoint employee for promotion post - Employee did not meet requirements. The applicant had applied unsuccessfully for the post which had been advertised internally and externally. He contended that the respondent had unfairly failed to promote him, claiming that he had all the relevant experience required for the position. The respondent claimed that, initially, the applicant was not short listed as he did not meet the requirements. He was, subsequently, short listed to the post because NUM had requested that he be given exposure for future opportunities. It indicated that the applicant was the third best candidate at the interviews, and was sent for psychometric test after the first two candidates had declined the offer. The respondent also claimed that the applicants outcome of the psychometric test had revealed that the applicant lacked certain skills. It was, therefore, recommended that the post be re-advertised. Noted: That the respondents reasons for not appointing the applicant were reasonable. Held: That the right to appoint and promote employees is within management prerogative as long as it is exercised fairly and equitably. That the respondents failure to promote the applicant was not unfair and did not constitute an unfair labour practice. The application was, therefore, dismissed. FALSIFICATION OF RECORDS GAPT9945- 06 SACTWU obo Ramafoko v Bader SA (Pty) Ltd) - Commissioner: van Wyk Dismissal Employee dismissed for falsification of records and misuse of company property.

The applicant was employed as an operator in the respondents leather tanning business. He was dismissed for alleged sabotage or deliberate misuse of company property and for making false reports to a company representative. The company conducted a test in order to asses certain health risks associated with its operations. The respondent alleged that the applicant had deliberately manipulated the test so that high risk was revealed. The respondent instituted a disciplinary action and dismissed the applicant. The applicant challenged his dismissal as substantively unfair and sought retrospective reinstatement with full pay back as a relief. Held: That the applicant had indeed manipulated the test results. The dismissal of the applicant, was, therefore, substantively fair and the application was dismissed. Case references Carter v Value Trick Rental (Pty) Ltd (2005) 1 BLLR 88 (SE) Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others (2006) 11 BLLR 1021 (SCA) LP3213-07 Mankgodi v Young Ways Twenty Eight CC - Commissioner: Mannde Dismissal Employee dismissed for failing to disclose previous criminal records. The commissioner was called upon to determine whether the dismissal of the applicant was procedurally and substantively fair. The applicant was dismissed for failing to disclose his previous criminal record. The respondent claimed that during the interview the applicant did not disclose his criminal records. The applicant had signed an indemnity form that authorised the respondent to check his previous criminal records. The respondent requested the applicant to bring his copies that detailed criminal records with the aim of checking if the crimes committed were minor, so that if they were minor, he could be allowed to drive. The applicant was found to be having several criminal records, such as murder, theft, culpable homicide and assault. The respondent summoned the applicant, and he admitted to the records. Noted: That if the crimes committed by the applicant did not fall under unwanted crimes, he was not going to be dismissed. The respondent gave room for other crimes so that the job seeker could be considered even if he had committed such crimes. Held: That the dismissal of the applicant was both procedurally and substantively fair. The application was dismissed. FIXED TERM CONTRACT GAJB11887-07 Mkhize v Polaris Coatings cc - Commissioner: Oosthuizen Fixed term contract Employee alleged that he was unfairly dismissed.

The applicant was employed as a painter on a fixed term contract. He alleged that he was told to stay at home by the respondent, was promised that he would be called back to work. The applicant referred the case to the CCMA alleging that he was unfairly dismissed. Noted: That the applicant did not dispute the evidence of the respondents witness who had testified that he was aware that his employment depended on the contracts received from clients. Other employees were laid off during rainy seasons as it was impossible for the respondent to continue with its business. Held: That the applicants fixed term contract came to an end and that that did not constitute an unfair dismissal. The applicants terms of employment were clearly explained to him by a supervisor in the language that he understood. The application was dismissed. GAPT3700-07 Rossouw v Clothing City Trading - Commissioner: Nephalela Fixed term contract - Employee alleged she was unfairly dismissed. The commissioner was called upon to determine whether the applicant was dismissed, if so, whether the dismissal was procedurally and substantively fair. The applicant was employed as an assistant manager. She claimed that she had suspected that her dismissal was based on the decrease in sales. The applicant testified that her immediate supervisor once told her that she would get rid of her if she did not perform. Held: That the respondent had proved that the fixed contract was signed by both parties. It was, therefore, held that the applicant was never dismissed. The application was dismissed. WE14117-07 Monakali v Peaceforce Security Cape CC Commissioner: de Kock Whether CCMA had jurisdiction to arbitrate - Employee on fixed term contract. The commissioner had to determine whether the CCMA had jurisdiction to arbitrate the dispute, and if so, whether to grant postponement of the con-arb. The applicant was employed by the respondent on a fixed term contract. She claimed that the respondent had failed to renew her contract of employment. She referred a case to the CCMA for unfair dismissal. The respondent argued that the CCMA lacked jurisdiction to hear the matter as no dismissal had taken place. The termination of the employment relationship was due to the natural expiration of a limited duration contract. The respondent also argued that there were some clauses on the fixed term contract indicating that on completion of the required job, the contract would automatically terminate. Such termination would not be construed as retrenchment but a completion of the contract. In addition, the fixed term contract would be terminated for the following reasons:

When the client terminates the agreement with respondent, When the client requires the respondent to reduce onsite resources, When the client requests that the applicant withdraw from the contract , and For any reasons as sufficiently recognised by law. Noted: That the applicant had agreed that she had signed the contract of employment which provided for a start and an end date. After the contract had been terminated, no other new date was entered into between the parties. Held: That the commissioner rejected the notion that there was no dismissal. The applicant was advised, if she wished to do so, to complete and serve on the respondent and the CCMA an LRA Form 7.13 for arbitration. Case references Buthelezi & Others v Labour for Africa (Pty) Ltd (1991) 12 ILJ 588 (IC) Denel (Pty) v Gerber (2005) 14 LAC 8.33.1 INCAPACITY GAPT9187-06 UPSWU obo Mogodi v Ikageng Cleaning Services Commissioner: van Wyk Incapacity Employee found guilty or negligence, misuse of clients property and poor work performance. The applicant was employed as an area manager. She was dismissed after been allegedly found guilty of negligence, misuse of clients property, poor work performance and dishonesty. The respondent alleged that the applicant had abused a company cell phone. Noted: That the respondent failed had to prove that the applicant had tried to hide the files or that she had performed poorly. It was noted that the applicant had exceeded her cell phone limit only by calls made for business purpose. Held: That the charges against the applicant were baseless and unfair. The disciplinary hearing was procedurally flawed. The applicant was awarded compensation equivalent to 12 months salary. Case references Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) (3) 6 SALLR 1 (LAC) County Fair Foods (Pty) Ltd v CCMA & Others (1999)11 BLLR 1117 (LAC) GAJB31556-05 Kubeka v Apex Pencil SA CC - Commissioner: Maseko Incapacity Employee dismissed for poor performance. The applicant was dismissed for misconduct. The commissioner was called upon to determine whether the dismissal was fair. The applicant testified that he was

dismissed for allegedly not taking calls and making few deliveries. A former employee of the respondent had testified that on the day of the incident he was a driver and the applicant was his assistant. Noted: That the respondent had failed to prove that this was a case of poor performance and not misconduct. The respondent did not dispute the evidence as presented by both the applicant and his former colleague. Held: That the applicant was dismissed for wrong reasons. It was held that the dismissal of the applicant had been substantively unfair. The respondent was ordered to pay the applicant compensation equal to seven months salary. GAJB21577-05 Matloa v SACCAWU - Commissioner: Mafani Incapacity Union organiser dismissed for poor work performance Failure to reach targets. The applicant was employed as a trade union organiser. He was dismissed while still on probation due to the fact that he did not meet the required standards. His letter of appointment stated that his probation period would be extended by a further one month. The job description stated that he would be responsible for organising, recognition agreements, shop stewards elections and chairing general meetings. Noted: That the applicant had acknowledged his job responsibilities as was stated by the respondent. It was noted that he did not meet the set required standards. Held: That the applicant had failed to meet the standards that were set by the respondent. It was held that the dismissal of the applicant was both substantively and procedurally fair. The application was dismissed. INCOMPATIBILITY GAJB30965-05 Glass v Liberty Group Ltd Commissioner: Smith Incompatibility- Employee dismissed for incompatibility and poor work performance. The applicants services were terminated for poor performance after the respondent claimed that the applicant had undermined authority and team work in the department. The commissioner was called upon to determine whether the dismissal for incompatibility was substantively and procedurally fair. The respondent claimed that it had held several meetings with the applicant in order to remedy the situation, but nothing had changed. Noted: The respondent argued that the applicants behaviour was the main cause of breaking down of the working relationship with her co-workers.

Also held: That the respondent had followed correct procedures. It was, therefore, held that the applicants dismissal was both procedurally and substantively fair. INSUBORDINATION GAPT2578-05 NUM obo Matabane & Others v Omega Risk Solution Commissioner: Maree Insubordination Employee dismissed for jeopardising respondents contract with client- Refusal to wear uniform. The applicants were employed as security guards. They were dismissed by the respondent on charges of jeopardising the respondents contract with a client by refusing to wear uniforms. According to the respondent, that led to gross insubordination. Noted: That the applicants had contravened a rule which they were aware of. Held: That the respondent had followed the correct procedures and the applicants dismissals were, therefore, fair. The application was dismissed. Case references Blaikie & CO. Ltd v Yeoman (1992) 1 LCD 5 (LAC) Early Bird Farms (Pty) Ltd v Mlambo (1997) 5 BLLR 541 (LAC) JOB GRADING GAPT5645-06 SOLIDARITY obo Van Niekerk v Standard Bank - Commissioner: Maree Job grading -Employee demoted to lower grade. The applicant was employed as senior clerk on level SGB 08. She claimed that she was demoted to level SGB 06 after a re-grading exercise. The applicant referred a dispute to the CCMA, complaining of an unfair labour practice which was committed by the respondent. The respondent explained that the re-grading exercise was embarked upon after inconsistencies with the grades were highlighted. Noted: That the union had been consulted about the exercise. Held: That the applicant must bear the onus of proving an unfair labour practice. The process of re-grading was necessary for the respondent operational requirements. Also held: The applicant had failed to prove that the respondents actions regarding her position and decreasing her salary had amounted to an unfair labour practice. The application was dismissed.

Case references Early Bird Farms (Pty) Ltd v Mlambo (1997) 5 BLLR 541 (LAC) Blaikie & Co Ltd v Yeomans (1992) 1 LCD 5 (LAC) LATE COMING FS1585-07 Moloi v Quthing Construction & Developers CK Commissioner: van Aarde Late coming - Employee dismissed for arriving late at work Employee showed negative attitude. The applicant was dismissed after he had arrived late for work and showed a negative attitude. The respondent claimed that the applicant had received a number of warnings, but his conduct did not improve. The last time he refused to sign a final written warning he was dismissed. The applicant contended that he had refused to sign the written warning because he had disagreed with what was written on it. Noted: That the applicant did not dispute that he had been given a number of warnings for his negative attitude during his short period of service. These warnings were to rectify the applicants attitude and conduct, but had no effect. Held: That the applicant should have been charged afresh with these offences and be called for a hearing. Also noted: That the applicant had received a months notice pay, and had been granted a hearing. Also held: That the dismissal was procedurally unfair and the applicant was awarded compensation equivalent to a months remuneration. Case references Automotive Association of SA (Pty) v Govender NO & Others (1999) 20 ILJ 2854 (LC) County Fair Foods (Pty) Ltd v CCMA (1999) ILJ 365 (LC) Hoch v Mustek Electronics (Pty) Ltd (2000) 21 ILJ 365 (LC) NUCCAW v CCMA (1999) 20 624 (LC) Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC) NEGLIGENCE GAPT408-07 Poee v Government Employee Pension Fund Commissioner: van Wyk Negligence Employee dismissed for overpaying pensioner- Dismissal fair. The applicant was employed as a senior clerk in the finance department. He was responsible for pension funds, and was dismissed for gross negligence.

The respondent claimed that the applicant had authorised payment into the account of a former state employee to the amount of R276 792, 00 instead of R72 227. The applicant claimed that the overpayment was not his fault as his responsibility was to check payments made. The applicant claimed that he was unfairly dismissed and referred a dispute to the CCMA seeking retrospective reinstatement as a relief. Held: That the applicant had been grossly negligent in executing his duties. It was held that the applicant had caused the State and taxpayers to foot the bill of R203 564, 99. Also held: That the applicants dismissal, was, therefore, substantively fair. Case references Commuter Handling Services (Pty) Ltd v Mokoena & Others (2002) 9 BLLR 843 (LC) County Fair Foods (Pty) Ltd v CCMA & Others (1999) 11 BLLR (LAC) Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others (2006) 11 BLLR GAJB7967-06 SATAWU obo Nyathi v SAA Commissioner: de Wet Negligence Employee dismissed for failing to follow proper procedures. The applicant was employed as an operations manager at South African Airways. His responsibility was to ensure that flights were crewed with qualified crew members. He was dismissed after allegedly failing to follow proper procedures in connection with the performance of his duties. The respondent testified that about 90 workers had been dismissed previously for not following proper procedures and for effecting changes without keeping records. The applicant claimed that his relationship with one of the respondents witnesses was not good by the time he was suspended. Noted: That the employee representatives conduct was disruptive during the hearing. The commissioner held that his behaviour amounted to contempt of CCMA and referred the matter to LC for a decision. Held: That the evidence established that the respondents code of conduct did include the rule on which the respondent relied. As the applicant assisted in drawing up the code of conduct, he was aware of the rule. The applicant was guilty of misconduct. Case references Hoechst (Pty) Ltd v Chemical Workers Industrial Union & Another (1993) 14 ILJ Motsenyane v Rockface Promotions (1997) 2 BLLR 217 (CCMA)

Saaiman & Another v De Beers Consolidated Mines (Finsch Mine) (1995) 16 ILJ 1551 (IC) GAPT1841-07 SACCAWU obo Mokoena & Lewis Group (Pty) Ltd Commissioner: van Wyk Negligence Employee dismissed for gross negligence, fraud and stock loss. The commissioner had to determine whether the applicants dismissal was unfair. The applicant was dismissed for gross negligence and fraud after the respondent had discovered that there was stock loss in one of its warehouses. The applicant had denied any wrongdoing and claimed that his dismissal was procedurally unfair. He claimed that the presiding officer at the disciplinary enquiry had refused postponement due to the fact that his shop steward was on leave. Noted: That there was no evidence that proved that the shop steward was on leave or the shop steward concerned was aware of the case. The applicant should have known before the hearing that the shop steward would be on leave and made alternatives to find another shop steward. He was aware of the rule that he had contravened. Held: That the applicant had failed to conduct weekly stock checks and that he had failed to follow instructions. He was grossly negligent and that had caused a substantial loss to the company. The applicants dismissal was procedurally and substantively fair. The application was dismissed. Case references Commuter Handling Services (Pty) Ltd v Mokoena & Others (2002) 9 BLLR 843 (LC) Metro Cash & Carry v Tshehla (1997) 1 BLLR 35 (LAC) ORGANISATIONAL RIGHTS GAJB23710-07 UPUSA obo Members v Sivuyile Security Services Commissioner: Zwane Collective bargaining Employer failed to grant trade union certain organisational rights. The commissioner was called upon to determine whether the applicant trade union should be granted certain organisational rights at the respondents workplace. The applicant contended that it had 14 members as the entire workforce comprised of 29 workers. The respondent claimed that it had other employees posted individually on other sites. The applicant contended that the site where these rights were sought should be regarded as a workplace as contemplated by the LRA. The employees on the site in question were in a group of 29.

The respondent claimed that the entire employee complement was 610 and not 29 as claimed by the applicant. Held: That the sites that the applicant was referring to constitute a workplace in the context of seeking to exercise organisational rights. It was noted that as the entire employee complement of the respondent was 610, the applicant, did not enjoy the majority in the workplace. The applicant, therefore, is not entitled to the organisational rights it had sought. The application was dismissed. RETRECHMENT WE598-07 Austin v SANS Souci Girls High School - Commissioner: Mazwi Retrenchment Whether CCMA had jurisdiction to hear matter- Employee employed on a fixed term contract. The commissioner was required to determine whether the applicants dismissal was both procedurally and substantively fair. At the commencement of the hearing, the respondent raised a point in limine that the CCMA lacked jurisdiction to hear the matter. It argued that the consultation process which led to the dismissal of the applicant involved more employees. It claimed that the dispute should have been referred to the Labour Court (LC) as directed on the certificate of outcome. The applicant submitted that the number of employees dismissed was the determinant factor. She claimed that the intention of the legislature was to allow individual employees who had been retrenched a choice to refer the matter to the CCMA. She also claimed that the certificate of outcome was of little consequence in so far as jurisdiction was concerned. Noted: That s 191(12) of the Labour Relations Act provides that if an employee is dismissed by reason of the employers operational requirements following a consultation procedure in terms of s 189 of the LRA that applied to that employee only, the employee may elect to refer the dispute either arbitration or Labour Court. Also noted: That the respondents argument pertaining to the certificate of outcome that directs the applicant to refer the dispute to the LC was of insufficient consequence. Held: That the CCMA had jurisdiction to hear the matter. Case references Dadoo Ltd v Krugersdorp Municipal Council (1920) AD 530 NUMSA v Driveline Technologies (2001) 1 BLLR 20 (LAC) Shenker v The Master & Another (1936) AD 136 RIGHT TO DISCIPLINARY HEARING

ECPE361-07 van Der Walt v van Staden - Commissioner: Gruss Procedural fairness in dismissal - Right to disciplinary enquiry - Employee called to meeting - Employee refused to answer questions on ground that matter was under investigation by police. The applicant was dismissed after being found guilty on charges of misappropriation of company goods and for conducting unauthorised hunting on the respondents farm. The applicant denied shooting the springboks. He claimed that he had permitted farm labourers to shoot one springbok but instead they shot more than what was required. He contended that he was not afforded an opportunity to defend himself at the disciplinary hearing. He also contended that the respondent was inconsistent in meting out the sanction because the labourers were not dismissed. He further contended that other employees who had previously committed the same offence were not dismissed. The respondent claimed that it had a rule that hunting on the farm was only permitted under its permission. It indicated that it had a meeting with the applicant and the labourers to discuss the matter but the applicant had refused to respond to the question claiming that he would only respond to the police. It indicated that it was unaware that a similar offence had been committed. Noted: That the applicant was called to a meeting but he refused to answer questions on the grounds that the matter was under police investigation. Also noted: That the respondent had testified that it had no knowledge of a similar offence being committed. The commissioner also noted that the labourers were not dismissed because they had testified that the applicant was the one who shot the springboks. Held: That the applicant had breached the company rule. The applicants dismissal was both procedurally and substantively fair. The application was, therefore, dismissed. SEXUAL HARRASMENT GAPT8009-06 Fourie v Sabre Footwear (Pty) Ltd - Commissioner: Koekemoer Sexual harassment - Employer instituting formal disciplinary action against employees for isolated incident of sexual harassment without first using informal procedure prescribed by sexual harassment code. The commissioner had to decide whether the applicants dismissal was both procedurally and substantively fair. The applicant was dismissed for sexually harassing a female colleague during a company training session. He denied committing the offence. He claimed that he only assisted the complainant by taking her to his bedroom because she was ill and unable to gain access to her apartment. He indicated that the complainant

had concocted the story. The applicant contended that the respondent had instituted a formal disciplinary action without first using informal procedure as prescribed by the companys sexual harassment policy. Noted: That the respondent had a sexual harassment policy, which provided for informal counselling before instituting a disciplinary hearing. The commissioner noted that no evidence was presented to prove that the applicant had been afforded an opportunity to make a choice between informal and formal process. Also noted: That the complainant and respondents witnesses submitted contradictory evidence. Held: That the respondent had failed to prove that the applicants dismissal was fair. The applicants dismissal was, therefore, held to be both procedurally and substantively unfair. The respondent was ordered to compensate the applicant an amount equivalent to five months salary. Case references Avril Elizabeth Home for Mental Handicapped v CCMA & Others (2006) 9 BLLR 833 (LC) Media 24 Ltd & Another v Grobler (2005) 7 BLLR 694 (SCA) Reddy v University of Natal (1998) 1 BLLR 29 (LAC) Rustenburg Platinum Mines Ltd v CCMA & Others (2006) 15 SCA 1.11.1

SICK LEAVE KNPM1666-07 Ngcoya v Nutec Southern Africa (Pty) Ltd Commissioner: Du Preez Sick leave Employee consulted traditional healer - Employer did not accept medical certificate from traditional healer - Employee dismissed. The commissioner was called upon to determine whether the applicant was unfairly dismissed. The applicant was sick and had consulted a traditional healer. The traditional healer gave him a medical certificate which he submitted to the respondent. The respondent informed him that a medical certificate from a traditional healer was not acceptable in terms of the companys code of conduct. He fell ill again and he told the respondent that he would come to work when he has recovered. The respondent told him that his absence was unauthorised and, subsequently, dismissed him. Noted: That the applicant had submitted a medical certificate from the traditional healer which was not acceptable. Also noted: That the applicant knew about the respondents code of conduct. He had been informed that his absence was without authorisation and that could

lead to a disciplinary enquiry. However, the applicant was not given an opportunity to respond to the charges laid against him. It was also noted that the applicant had a long service in the company and his disciplinary record was clean. Held: That the dismissal of the applicant was substantively fair and procedurally unfair. The respondent was ordered to compensate the applicant an amount equivalent to 12 months salary. LP2226-06 NUM obo Matlapeng & others v Anglo Platinum Mine (Amendulbult) Commissioner: Nyoffu Sick leave Employees consulted external doctors - Employer had medical services in the workplace - Employees dismissed. The applicants were employed in the mine. They claimed that they feel ill on different days and consulted external doctors. The applicants claimed that they needed specialised treatment when consulting external doctors. The respondent dismissed employees for misconduct, claiming that they misused sick leave. The commissioner was called upon to determine whether the applicants were indeed sick or obtained medical certificates, and whether their dismissals were fair. Noted: That the applicants had to travel hundred of kilometres to consult their family doctors. None of them had reported to their superiors that they were sick. Also noted: That all applicants had known that abuse of sick leave was an offence that was prohibited. There were medical services in the workplace but the applicants did not utilise it. None of the applicants testified that they had consulted a specialist doctor. Held: The applicants dismissals were fair. The application was dismissed. STRIKE GAPT5291- 07 DFUAWUSA obo members v Mansonia Joinery (Pty) Ltd Commissioner: van Wyk Strike Shop stewards dismissed Entire workforce went on strike without consulting union. The commissioner had to decide whether the dismissals of the applicants were procedurally and substantively fair. The three applicants were shop stewards, and had downed tools without consulting their union. The applicants claimed that the strike was justified because the respondent had failed to pay them amounts to which they were entitled to under an earlier private arbitration award.

Noted: That the applicants had ignored ultimatum issued by the respondents in unprotected strike. It was noted that the respondent had dismissed them after conducting a disciplinary hearing. Held: The application was dismissed. The respondent was ordered to pay the applicants monies that were unlawfully deducted from wages due to them. Case references Coin Security Group (Pty) Ltd v Adam & Others (2000) 4 BLLR 371 (LAC) Cape Gate (Pty) Ltd v NUMSA & Others (2007) 28 ILJ 871 (LC) NULAW & Others v Bader Bop Ltd & Others (2004) 8 BLLR 799 (LC) Vitapront Labour Brokers CC v SACCAWU & Others (2000) 2 BLLR 238 (LC) 2 BLLR 238 (LC) THEFT GAPT7203- 06 NUMSA obo Seruku v Total Waste Recyclers CC- Commissioner: van Wyk Theft Employees dismissed - Unauthorised possession of company goods. The commissioner was called upon to determine whether the dismissals of the applicants were fair. The applicants were apprehended in an aluminium yard where they had hidden three sealed tops in a rubbish bin. After they had been charged with theft, they were dismissed. The applicants sought retrospective reinstatement as a relief. The respondent contended that both the applicants were apprehended in an aluminium yard where they were not allowed to be there. One of the applicants testified that it was impossible for someone to steal aluminium vehicle tops, he claimed that the entire case against them was fabricated. Noted: That the respondent had appointed an external chairperson to chair the hearing. Held: That the rules of natural justice had been followed in conducting disciplinary proceedings. The arbitrator found that the applicants were guilty as charged. The applicants dismissals were, therefore, to be both procedurally and substantively fair. Case references Anglo American Farms and Boschendal Restaurant v Komiwayo (1992) 3 (6) SALLR 1 (LAC) Carter v Value Truck Rental (Pty) Ltd (2005) 1 BLLR (SE) GAPT512206 UPSWU & obo Phetla & Another v Fidelity Supercare Commissioner: van Wyk

Theft Employees dismissed Employees with unauthorised possession of company goods. The commissioner had to determine whether the applicants dismissals were unfair. The applicants were dismissed for being found in unauthorised possession of company property. They sought retrospective reinstatement as a relief. The respondents witness testified that an independent security guard conducted search on a taxi before it left the shopping centre. The security guard testified that he found various items belonging to the respondent in the applicants possession. The applicants claimed that no company property was found in their possession when the security guard was searching the taxi. The taxi driver testified that a toilet paper was found in the taxi when the security was searching. Held: That the applicants were afforded an opportunity to defend their case during a hearing that the version presented by respondent was more credible than the one presented by the applicants. The applicants dismissals were, therefore, both procedurally and substantively fair. The application was dismissed. Case references Anglo American & Boschendal Restaurant v Komjwayo (1992) 2 (6) SALLR 1 (LAC) Carter v Value Truck Rental (Pty) Ltd (2005) 1 BLLR 88 (SE) WE5165-06 FAWU obo Andrews & Others v Rohloff Administration Commissioner: Goldman Theft Employees dismissed after chickens fillets missing - Employees refuse to undergo polygraph test. The applicants were dismissed after two chicken fillets went missing in one of the respondents outlets. The respondent sent all its employees to undergo a polygraph test, but the applicants refused to do so. They were charged with unauthorised removal of company property and for refusal to undergo polygraph test. The applicants were on a final written warning for a similar offence. The applicants denied being involved in a ring of theft. They contended that the charge for refusal to undergo polygraph test was invalid. Applicants indicated that they had refused to undergo a polygraph test because they were not bound to do so. They claimed that other employees who had been previously found guilty for the same offence were not dismissed. Noted: That the only fact from which the respondent had inferred the applicants guilt was their refusal to undergo a polygraph test. The commissioner noted that

it is trite that polygraph testing is not regarded by the law as being 100% reliable and for that reason the findings with no other evidence cannot be regarded as accurate. The applicants were not contractually bound to undergo polygraph test. Also noted: That the respondent had appeared to be inconsistent in disciplining its employees, in that one of its employees who had confessed to stealing money was not dismissed. Held: That the applicants dismissals were both procedurally and substantively unfair. The respondent was, therefore, ordered to compensate the applicants an amount equivalent to two months remuneration. UNFAIR LABOUR PRACTICE WE 12662-07 COSAWU obo Matrose & Other v Steers Sanlam Centre Commissioner: Taft Unfair labour practice Employees failed to attend staff meeting Employees issued with final written warning valid for 12 months. The commissioner was required to determine whether the respondent had committed an unfair labour practice by issuing the applicants with final written warning which was valid for 12 months. That was after the applicants had failed to attend a staff meeting. The applicants union challenged the decision, stating that the penalty was too harsh as the applicants were not scheduled to work on that day. One of the applicants stated that he had worked a late shift on the day before the meeting. Noted: That the applicants were informed about the planned meeting a week before the time and would have received payment for attending on their day off. The applicants did not notify their manager in advance as to why they would not be attending. They only forwarded the reasons when they were issued with a final written warning. It was noted that an interpreter was hired for the meeting in order to update staff about changes. Also noted: That the first written and final written warnings issued to the applicants were related. They fell within the band of attendance related offences in terms of the companys policy. Held: The respondent did not commit any unfair labour practice against the applicants. 27