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IN THE LABOUR COURT OF SOUTH AFRICA

JOHANNESBURG

Case no: JR 1733/04

In the matter between:

LAMINATE PROFILES CC APPLICANT

And

AUBREY MOMPEI FIRST RESPONDENT

COMMISSIONER M.E. PHALA N.O SECOND RESPONDENT

COMMISSIONER FOR CONCILIATION,

MEDIATION AND ARBITRATION THIRD RESPONDENT

JUDGMENT

SANDI AJ:

[1] The applicant (“the employer”) has instituted this review application in terms of the provisions of s 145 of the Labour Relations Act, 66 of 1995, seeking relief in the following terms:

“1. Reviewing and setting aside the arbitration award made by the second respondent under CCMA case Ref GA 11510-02, dated 8 March 2004.

2. Directing that the applicant did not dismiss the first respondent, alternatively directing that the dismissal of the first respondent was fair.

3. In the alternative to paragraph 2 above, referring the dispute between the applicant and the first respondent for arbitration before a commissioner other than the second respondent.

4. Directing that such of the respondents as may choose to oppose the relief sought herein be ordered to pay the costs of the application for review jointly and severally, the one paying, the others to be absolved.

5. Further and/or alternative relief.”

[2] The application concerns the alleged dismissal of the first respondent (“the employee”) at a time when he was an awaiting trial prisoner.

[3] The employee had referred a dispute about an unfair dismissal to the third respondent (the CCMA). The employer disputed that the employee was dismissed by it. For that reason the arbitrator ruled that the provisions of section 192 (1) of the Labour Relations Act 66 of 1995 applied namely, that the employee bore the onus to prove the existence of the alleged dismissal. Consequently, the employee commenced giving evidence. His father also testified on his behalf.

[4] The employee’s case is the following. On 20 October 1994, the employee commenced his employment with the employer. On 6 March 2001 he reported to the employer that the police wanted to arrest him on a charge relating to the rape of his stepdaughter. At that time he was earning a gross salary of R 410 .00 per week. He testified that he was dismissed from his employment on 9 March 2001, the date that was inserted by the employer on his Unemployment Insurance Fund Card (UIF Card) as the date of termination of his contract of employment.

[5] On 8 March 2001 the employee was arrested by the police for the said charge and was kept in custody until he was acquitted of the said charge on 25 March 2002.

[6] He testified that while in custody, his father visited him and told him that his employment had been terminated. His father had been given by the employer an amount of R 284.40, which was his savings, and the UIF card.

[7] The employee testified that, after his acquittal, he telephoned the employer who told him that he had employed someone in his place. He said that the employer told him that there was absolutely nothing he could do about that. The employer informed him that he owed him no money for the six years that he had been in his employment.

[8] The employee’s father, Mr. Mompei, testified that while the employee was in custody the employer telephoned him. He said he went to the employer who gave him an amount of R 284.40 and the employee’s UIF card. He said that there was no discussion between them.

[9] On the other hand, Mr. Gatley (of the employer) as well as two members of the employer’s staff, namely Messrs Radebe and Masemola also testified.

[10] The employer’s version was as follows: The employee worked for the employr from 1994 to 2001. On 5 March 2001 the employee told Mr. Gatley that he had a big problem because the police were looking for him. He suggested to the employee that he should surrender himself to the police instead of being arrested. The employee did not communicate with him from 8 March 2001 until his release from prison on 25 March 2002, on which occasion the employee telephoned him and told him that he wanted his job back.

[11] As from 8 March 2001 the employee did not report for work. The employer sent one of his employees, Mr. Radebe, to look for him. According to him Radebe went there on four occasions but could not find the employee. In his evidence Radebe confirmed this. The employer said that he then decided to wait until the employee contacted him.

[12] At the beginning of June 2001 the employee’s father telephoned him to tell him that the employee was in prison and would not be returning to work. He told the employee’s father that the employee’s wages was paid directly into his bank account and that the only things that were outstanding were the employee’s UIF card and savings.

[13] Indeed, on 8 June 2001 the employee’s father came to see him. The employee’s payment as well as the UIF card were given to his father. After

he had met the employee’s father, he employed somebody else to replace the employee.

[14] He concluded that the employee would not be returning to work after the employee’s father told him so. He did not investigate whether or not the employee was an awaiting trial prisoner. The employee’s father told him he was worried that the employee could be imprisoned for a period of twenty years. At arbitration the following transpired between the Commissioner and the Mr. Gatley:

“Commissioner: Now as an employer and I believe that you are a very responsible employer. It did not occur to you that Aubrey might be innocent? It did not?

Mr. Gatley: I had no thoughts on the matter Mr. Commissioner.

Commissioner: You had no opinion whatsoever.

Mr. Gatley: I had no opinion on it whatsoever. You know what was happening to Aubrey I had no opinion on that whatsoever.

Commissioner: I see. You then based on the conversation you had with the father you had decided that you are terminating his services?

Mr. Gatley: No. He requested it you know, and I gave it to him.”

In the above extract Aubrey is the employee.

[15] Mr. Masemola, the employee’s instructor, stated that on 8 March 2001 the employee’s father spoke to him at his place of employment and told him that the employee was in prison and would not be returning to work. I must mention that this statement was not put to the employee’s father during cross-examination.

[16] In his founding affidavit, in the review application, the employer stated that the UIF card completed by him indicated that the employee’s services were terminated on 9 March 2001. However, he said that the employee was not dismissed because he absconded from work and thereby terminated his contract of employment with effect from 9 March 2001. He assumed that the employee had run away because the police were looking for him. He also said that on 8 June 2001 Mr. Masemola told him that the employee’s father informed him (Masemola) that the employee “was in big trouble and would not be coming back to work because he was in prison”. He said that by the time Mr. Radebe informed him that he could not find the employee at his residence he was “convinced” that the employee had absconded from work. The employer conceded that it had no code of conduct that regulates a case of this nature.

[17] It is not apparent from the arbitration proceedings and the review application why the employer reached the conclusion that the employee had absconded from work, and why he assumed that the employer had run away from the police when he himself suggested to the employee that he should surrender himself to the police.

[18] After hearing evidence and argument the Commissioner issued the following award:

“(a) The respondent is ordered to re-instate the applicant retrospectively to the date of dismissal (9 March 2001). The applicant is to report for duty 5 days after receipt of the award.

2. Furthermore the respondent is ordered to pay the applicant the equivalent of six months’ wages R 9480 as accrued remuneration which to me is just and equitable.

2. The amount above is to be paid within six months after receipt of the award.”

[19] In making the award the commissioner made inter alia the following findings, namely that the employee was dismissed from his employment on 9 March 2001; that he was in prison from 8 March 2001 to March 2002; the employer acted hastily by dismissing the employee without a hearing; that the employee did not evince any intention of terminating his contractual relationship with the employer; that as early as June 2001 the employer was aware that the employee was in prison and that the employer did not have any code of conduct that deals with an employee’s desertion of his employment. He concluded that the dismissal was unfair.

[20] The award is attacked by the employer on a number of grounds. They are the following: the commissioner did not appreciate his duties as a Commissioner and was not fair and objective and was biased in favour of the employee; the Commissioner should have accepted the evidence tendered on behalf of the employer that the employee and his family had disappeared and were not living at the given address at the time relevant to this arbitration.

[21] Sarcastic remarks made by the Commissioner in his award form part of the attack. I need not detail these remarks as I consider them irrelevant for the determination of the issues before me.

[22] For the purpose of this application I accept Mr. Radebe’s evidence that in March 2001 he could not find the employee at his place of residence. The employee was in prison at the time and no steps adverse to him were taken by the employer. I accept that the employer only took action against the employee on or about 8 June 2001 when he learnt from the employee’s father that the employee was in prison. It was after he had completed his UIF card and paid him an amount of R 284.40.

[23] I accept the employer’s evidence that it was on 8 June 2001 that he learnt for the first time that the employee was in prison, and that it was as a result thereof that he indicated on the UIF card that the employee’s services were terminated on 9 March 2001. I accept too that on 8 June 2001 the employer had not employed anyone to replace the employee.

[24] However, in the light of what is stated above, I do not accept that the employee deserted his employment. In March 2001 the employer was aware that the police were looking for the employee and the employer suggested to the employee that he should hand himself over to the police. In early June 2001 the employee’s father told him that the employee was in prison. As on 8 June 2001 the employer had no idea as to what was going to happen to the employee. The opinion of the employee’s father that the employee could be sentenced to imprisonment for a period of twenty years is irrelevant and in any event the employer had no view on the matter. It therefore cannot be said that the employee absconded from or deserted his employment

[25] The employee was temporarily unable to perform his obligations in terms of his employment contract by virtue of the fact that he was in detention. In Beretta v Rhodesia Railways Ltd 1947 (2) SA 1075 (SR) at 1080, it was held that “a contract of employment is not automatically terminated by the temporary inability of the servant to fulfil his obligation thereunder, but that it may be terminated if the inability persists.”

[26] Immediately after his acquittal the employee telephoned the employer. He informed the employer of his acquittal and demanded his job back.

[27] In my view the evidence shows that the employee was dismissed from his employment on or about 8 June 2001. However, the dismissal was made with effect from 9 March 2001.

[28] On the authority of Skweyiya v Lingelihle Town Council (1990) II ILJ 136 at 141B, the date of dismissal in this case should be the date on which the employer elected to terminate the employee’s contract of employment and not the date on which the employee was arrested and detained by the police. On this aspect of the matter I come to the conclusion that the employee was dismissed on 8 June 2001.

[29] The next issue for decision is whether the employer was entitled to dismiss the employee without any hearing.

[30] Both at arbitration and before this court the parties agreed that no hearing was held before the employee’s dismissal. At the time that the employer dismissed the employee and employed someone else in his place, he knew that the employee was in custody and ought to have granted him an opportunity to be heard before his dismissal. See Skweyiya’s case supra. The employer cannot plead desertion in circumstances where he knew the employee’s whereabouts. Apart from this, an alternative remedy was available to the employer in that he could have employed someone on a temporary basis, until such time that he was in a position to deal with the matter in an appropriate fashion. In any event there should have been some form of a hearing or discussion with the employee.

[31] It was submitted by the Counsel, acting for the employer, that after his release from prison the employee did not tender his services to the employer. Counsel submitted that that was an indication that the employee was aware that his contract of employment had terminated whilst he was in prison. He submitted that the employee did not seek reinstatement either.

[32] The following extract from the employer’s evidence does not support Counsel’s submission:

“ The first contact I had with Aubrey was by telephone when he came out of prison. He phoned me and told me he was out of prison and wanted his job back. And I told him that his father had told me that he was not coming back and collected his blue card. I had also employed a person, a permanent replacement to replace Aubrey…”

[33] The above extract shows quite clearly that the employee tendered his services after his release from prison. It also indicates that he had no intention of relinquishing his job. In all probability had he mandated his father to terminate his employment contract, he would not have acted in the manner he did.

[34] Another issue raised in the review application is that the working relationship between the employer and the employee had been finally severed. The basis of this submission is the allegation made by the employer in the review application. The applicant contends that after the employee’s release from prison the rest of his workforce indicated that they were not prepared to work with the employee.

[35] No reason is given as to why the rest of the workforce adopted such an attitude. Furthermore, this allegation, which is in the nature of hearsay evidence is not supported by any affidavit from the employees and was not raised at the arbitration proceedings. If this state of affairs indeed had resulted in operational problems, these should have been discussed with the employee. Certainly, the two employees Messrs Radebe and Masemola (the employee’s instructor) did not say so in their evidence. The allegation is not supported by the evidence.

[36] In the circumstances, and in accordance with the principles laid down in Carephone (Pty) Ltd v Marcus No and Others (1998) ILJ 1425 (LAC), I find that the Commissioner’s award reasoning rationally justifiable in accordance with the material that was placed before him.

[37] The award of compensation in the sum of R 9 840. 00 and its classification as accrued remuneration is also attacked. It was submitted that it is vague and that the commissioner failed to indicate the period for which it was awarded, and further that its formulation lacks clarity.

[38] As stated above, the contract of employment was not terminated by the employer on 9 March 2001 as indicated on the UIF card, but on 8 June 2001. It was therefore in force during the period 9 March to 8 June 2001.

[39] Because of the employee’s detention during the period 8 March 2001 to 25 March 2002 the Commissioner should have found, as was held by Revelas, J, in the matter of Trident Steel (Pty) Ltd v Commissioner for Conciliation, Mediation and Arbitration and others (2005) 26 ILJ 1519 (LAC), that imprisonment suspends the obligation of an employer to pay the employee a salary and for that period an employee is not entitled to remuneration.

[40] It follows that the employee was not entitled to remuneration during the period of his detention and no compensation should have been awarded to him in respect thereof.

[41] Counsel for the employer submitted that the Commissioner committed an irregularity in that he did not apply his mind to the relief he had to grant in that he awarded reinstatement for a period longer than that set out in the judgment of Zondo, JP in Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC).

This judgment has subsequently been endorsed by the Labour Appeal Court in Chemical Workers Industrial Union and Others v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC).

[42] In my view, the employee is entitled to be reinstated to his employment from a date no longer than 12 months prior to the date of finalisation of the arbitration proceedings (i.e. 8 March 2004).

In the circumstances, the award has to be corrected in the manner indicated above.

[43] During argument counsel for the employer sought to introduce a new ground of attack against the Commissioner’s award. He submitted that the Commissioner was biased in favour of the employee. In this regard he referred me to the questions the Commissioner put to the employer. When I pointed out to Counsel that he had no basis for making such a submission as it is not supported by the employer’s founding affidavit, Counsel asked for a postponement of the matter to amend the papers. The application was opposed vigorously by the employee’s representative. However, argument proceeded to finality and I indicated to the parties that I would deal with this issue in my judgment.

[44] I refuse the application for a postponement in order to allow the applicant to amend its papers. It was made for the first time during counsel’s argument, without notice to the employee or his representative and the Commissioner who is entitled to respond thereto. The application is not supported by any affidavit from the employer and Counsel gave no explanation for making the same at a very late stage of the proceedings and without an application for condonation. It is in the interest of justice that this matter be finalised. In any event my view is that the attack has no merit whatsoever and that the Commissioner was entitled to ask the questions which he did.

[45] In the result the following order is made:

(a) The application for a postponement is dismissed.

(b) The review application is dismissed with costs.

(c) The Commissioner’s award is corrected and is substituted by the following: “The respondent is ordered to reinstate the applicant to the position he held in his employment immediately before 8 March 2001.”

(d) The order in paragraph (c) above is to operate with retrospective effect to 8 March 2003.

B. SANDI

ACTING JUDGE OF THE LABOUR COURT, JOHANNESBURG

Date of Judgment: 27 February 2007

Applicant’s Counsel: Kocks & Dreyer Attorneys

69 Voortrekker Avenue

EDENVALE

1610

Ref: H. F. Kocks / IVR / 1332

Tel no: (011) 454 8015

Fax no: (011) 454 8241

Respondent’s representatives: National Contract Workers Union

158 Market Cnr. Vonwiellig Streets

2^ND Floor F.H.A House Suite no.: 211

JOHANNESBURG

Ref: Mr. Ntela

Cell no.: 073 348 2542

Tel no.: (011) 333 2663

Fax no.: (011) 337 9759

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