Toyota South Africa Motors (Pty) Ltd v NUMSA and Others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | B Whitcher J |
| Judgment Date | 14 July 2022 |
| Docket Number | D 692/19 |
| Hearing Date | 01 June 2022 |
| Court | Labour Court |
| Citation | 2022 JDR 2069 (LC) |
Whitcher J:
Introduction:
This is a review application brought in terms of section 145 of the Labour Relations Act, 1995, seeking that the arbitration award [1] be set aside and that the first respondent's dismissal be declared substantively fair. The applicant also seeks condonation for the late filing of the review and the record, which I deal with first.
2022 JDR 2069 p2
Whitcher J
Given the detailed reasons for and the nature of the delays and the subject matter of this case, condonation is hereby granted.
The applicant has a written leave policy which provides inter alia for compassionate leave in respect of the death of "immediate family" members, defined in the policy as "husband, wife, grandparents, father, mother, father-in-law, mother- in-law, sister, brother, brother-in-law, sister-in-law, child, grandchildren". The employee "must provide a copy of the death certificate of that family member, and in certain cases, an employee may be required to provide an affidavit indicating the relationship between the employee and the deceased person".
Mr Njilo was dismissed from the employ of the applicant on a charge of misconduct, specifically:
"Dishonesty in that during May 2013, July 2014 and February 2015 you provided false information about your relationship to the deceased which resulted in you receiving compassionate leave payments for which you did not qualify".
The leave forms in 2013 and 2014 reflect the deceased as "mother" and the one in 2015 as "son". Explained in western terms and that of the policy, the "son" was Mr Njilo's late brother's son and the "mother/s" had been his late father's second wife and his aunt.
The matter went to arbitration whereupon an award was issued in favour of Mr Njilo.
The arbitrator accepted Mr Njilo's version, which in broad terms is that he just knew, from a colleague, that one can apply for leave when a family member dies. He had been unaware of the intricacies of the compassionate leave policy; particularly that it did not cover people he regarded in Zulu culture as his "immediate family", "mother" and "son". He said in Zulu culture, a man assumes responsibility for his deceased father's wives and the children of his deceased brother. In any event, he had not hidden the relationship between him and the deceased when he approached
2022 JDR 2069 p3
Whitcher J
his (Zulu speaking) group leaders to apply for leave. He was traditional and would have used cultural names to describe the relationships; e.g. "mamncane" for his father's wife and so on.
It bears mention here that it appears from the record that, at least in respect of production line employees such as Mr Njilo, the practice is that the employee approaches his group leader to ask for leave who in turn completes the application form and forwards it to HR for approval, together with the supporting death certificate.
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