IN THE METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL HELD AT PRETORIA. PARTSON CHAKAAMBA and JACOB TIMBA ARBITRATION AWARD

Transcription

1 IN THE METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL HELD AT PRETORIA IN THE ARBITRATION BETWEEN PARTSON CHAKAAMBA and JACOB TIMBA APPLICANT AND HEUNIS STEEL (PTY) LTD RESPONDENT ARBITRATION AWARD CASE NUMBER: METS 1654 DATE/S OF HEARING: 05 July and 29 November 2011, 17 January, 05 April, 17 July and 03 September 2012 DATE AWARD SUBMITTED: 29 October 2012 DATE CLOSING ARGUMENTS RECEIVED: 10 October 2012 NAME OF COUNCIL COMMISSIONER: Frans Stassen Centre for Dispute Resolution Gauteng and North West (011) Tshwane, Mpumalanga and Limpopo (012) Free State and Northern Cape (057) Western Cape (021) KwaZulu Natal (031) East London (Border Region) (043) Port Elizabeth (Midlands) (041)

2 1. DETAILS OF HEARING AND REPRESENTATION 1.1. The dispute related to the unfair dismissal of the two applicants on 26 November 2010 after a disciplinary enquiry that was held the previous day. The charges related to dishonesty concerning the use of a clock card. It was alleged that Jacob Timba (Timba) handed his clock card to Partson Chakaamba to clock in for him. It was further alleged that the applicants lied to the operational manager as to where and how the clock card was exchanged An independent person chaired the enquiry. He was Mr Johannes Hoogendyk an adequately qualified labour relations consultant who held a B.Com (Hons.) degree in industrial relations The two applicants were represented by Mr Mandla Skosana an official of the NUMSA union. Mr Mike de Beer the personnel manager of the respondent represented the employer party. Mr Skosana in particular filed a very helpful memorandum The two applicants pleaded guilty to the charged at the disciplinary enquiry. It is therefore not necessary to deal with the evidence in very much detail There were quite a number of hearing dates because of justifiable postponements necessitated for various reasons. They were 05 July 2011, 29 November 2011, 17 January 2012, 05 April 2012, 17 July 2012 and 03 September 2012 when the evidence was concluded. The parties then indicated that they prefer to file written submissions not later than 14 September The applicants submissions were received in time but that of the respondent was filed (accompanied by an apology) was filed on 10 October I then allowed another 14 days for the applicants representative to file a reply. However, he apparently decided not to respond thereto Although the procedural fairness of the dismissals was initially placed in dispute no convincing evidence showing any unfair process was adduced to justify any unfairness in this regard. Mr Skosana also did not address this issue in his written submission. The evidence from Hoogendyk, Muller and the applicants convinced me that there were no justifiable reasons for finding that an unfair process preceded the dismissals.

3 2. THE ISSUE TO BE DECIDED 2.1. It has to be decided whether it was a fair sanction to dismiss the applicants having regard to all the relevant circumstances of the matter. 3. PRELIMINARY ISSUES There were no preliminary issues. 4. SUMMARY OF EVIDENCE 4.1. As indicated earlier the applicants pleaded guilty to the charges preferred against them. The evidence adduced by the employer proved the fact that the applicants committed the offences. The applicants repeated their guilt during the arbitration hearing The factual background of the matter can be summarised as follows: On 15 November 2010 Chakaamba was on his way to the clocking machine. Timba was still outside the premises. Timba gave his clock card to Chakaamba by throwing it over the fence that separated the two at that stage. Timba requested Chakaamba to clock for him. This incident was observed by someone else who reported it to the manager. The two applicants then invented a story that the clock card was given to Chakaamba at the gate and not thrown over the fence. This lie was an attempt to get away with the incident. However, it did not end there and they were then brought before the disciplinary enquiry They pleaded guilty to the offences of which they were charged with. The evidence of the applicants at the disciplinary enquiry was that they felt sorry for what they did and that it would not be repeated. They also admitted that what they had told the manager (Muller) was not the truth but that they had told the truth at the disciplinary hearing, although, according to Chakaamba, his version was not correctly recorded by the chairperson. 5. ANALYSIS OF EVIDENCE AND ARGUMENT 5.1. The salient facts upon which the applicants were charged were not in dispute. They pleaded also guilty to the charges that were clearly not of a petty nature. The applicants were aware of the seriousness and the possible consequences of clocking in or out for another employee were considered to be fraud and that such action could lead to a dismissal. This fact was brought to the attention of employees on 08 October 2009 in writing.

4 5.2. The chairpersons evidence was that he considered the aggravating factors outweighed the mitigating factors. He also found that the generally clocking for another employee would warrant a final written warning but if the other employee was absent from work then a dismissal would follow. He concluded that the applicants in telling lies about why and how the clock card was exchanged seriously affected the situation to the extent that the employer could no longer trust the employees and that summary dismissal was appropriate The two applicants had no valid and or relevant previous disciplinary records. They each had more than 9 years of service with the respondent. A dismissal is not the default or automatic sanction in respect of serious offences. All relevant facts must be considered including alternative sanctions to avoid a dismissal such as final written warnings or suspension without pay for a period. This is confirmed by the well-known judgement of Sidumo in the Constitutional Court The chairperson made his decision based on the facts that were placed before him at the time of the disciplinary enquiry. In terms of the Sidumo judgment, the arbitrator must determine the fairness of the dismissal based on the evidence that the arbitrator accepted during the arbitration process having regard to all the relevant factors In the present matter I would be failing in my responsibility if I do not emphasize the fact that I was convinced that the two applicants showed genuine remorse during the arbitration process. In the present case, the clock card was not used to clock in for an absent employee. I am mindful of the fact that the offence is a serious one. The question is also whether by telling lies about their actions the matter became so serious that a dismissal was appropriate having regard to their clean records and genuine remorse and length of service. I am of the opinion the dismissals were unfair in the circumstances. The applicants are therefore entitled to some relief Jacob Timba did not want to return to the workplace but wanted compensation. He was earning R per month at the time of his dismissal. Compensation must be just an equitable having regard to all the relevant facts. The maximum compensation may not be more than the equivalent of remuneration for 12 months. In Timba s case, a too large amount of compensation would clearly be inappropriate in view of the breach of a serious rule in the workplace. I am of the view that compensation equal to one month s remuneration would be appropriate. Partson Chakaamba wanted to be re-instated. There is no reason to find that re-instatement is not possible. No evidence was tendered at the arbitration on which I could confidently find otherwise. I am of the opinion that re-instatement should be from 01 October

5 2012 so that the back pay should be equal to one month s remuneration, being R AWARD 6.1. The respondent is ordered to pay Jacob Timba compensation of R The respondent is ordered to re-instate Partson Chakaamba with effect from 01 October 2012 on terms and conditions not less favourable than those that existed at the time of his dismissal and pay him back pay to the amount of R Partson Chakaamba must report to the respondent s workplace at the usual starting time within five (5) days from receipt of the award The respondent must pay the compensation and back pay amounts, less compulsory statutory deductions (if any), to the applicants within seven (7) days from date of receipt of the award. FRANS STASSEN COUNCIL COMMISSIONER 1. M. Skhosana - Fax M. de Beer - Fax