Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Waglay JP and Davis JA and Savage AJA
• Judgment Date: 10 December 2021
• Court: Labour Appeal Court
• Hearing Date: 03 November 2021
• Docket Number: PA12/2020

Davis JA:

Introduction:

[1]

When does attendance at a rugby match trigger a dismissal from employment? This case turns on an answer to that question. On the morning of 9 June 2018, the third respondent advised one of the appellant's managers that he had taken ill and that he would not be attending work on that day. It turned out that on that very day,

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Davis JA

that the third respondent claimed to be ill, he and his father travelled for at least an hour from Jeffreys Bay, where he resided to Port Elizabeth to attend a rugby match. It is instructive to note, that had he left his home and attended to his employment responsibilities, the trip would have taken 20 minutes.

[2]

When he returned to work for his next shift, his manager Mr Jonel Krige enquired as to where the third respondent had been on the previous day. He responded, that although he was not well, , he returned to work, ,on the previous day (9 June) he had attended a rugby match.

[3]

Pursuant thereto, the appellant investigated the circumstances of the third respondent's disappearance from work, and following thereon instituted a disciplinary enquiry against the third respondent based on the following charge:

'Gross misconduct in that on 9th June 2018 you breached company policies and procedures when you abused authorised leave in the form of sick leave when you informed your manager that you were unable to report for your scheduled shift but was observed at an extended function in Port Elizabeth. This could have resulted in your claiming wages to which you were not entitled to in the form of sick leave if this was not picked up.'

[4]

The third respondent was found guilty of the charge and dismissed. He then referred an unfair dismissal dispute to the first respondent which was arbitrated by the second respondent who issued an award in which he found the dismissal substantively and procedurally unfair.

[5]

After considering the testimony of both the appellant and the third respondent, the second respondent found that the third respondent had not sought to hide the fact that he had attended a rugby match, that there was no evidence that he had previously been given a written or final warning. Further the appellant had not charged him for dishonesty and thus the employment relationship had not yet broken down. The second respondent therefore concluded that the dismissal was unfair and ordered the appellant to reinstate the third respondent retrospectively

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Davis JA

with effect from 18 February 2019. It is against these findings that the appellant applied to set aside this award on review before the court a quo.

The court a quo:

[6]

Although Lallie J held that the second respondent had erred in finding the dismissal procedurally unfair, the learned judge found that the dismissal was substantively unfair. Following the approach adopted by the second respondent, Lallie J said:

'When the evidence which was led at arbitration is considered in its totality it proves that the commissioner considered whether the third respondent acted dishonesty. He found that he did not. He based his finding on the applicant's failure to tender admissible evidence proving the dishonesty as well as the absence of a policy which required...