The dismissal of an employee for leaving the workplace early

In the matter of Jordex Agencies v Queendy Gugubele N.O. decided in the Labour Court, Johannesburg under case number JR 2971/12 on 11 March 2015 Joan Msimango worked at Jordex Agencies as a cleaner from the 1st of October 2003 until the 2nd of August 2012 when she was dismissed. She was dismissed because of leaving the workplace early without permission being granted. Msimango took the matter to the Commission for Conciliation Mediation and Arbitration (CCMA) and the Arbitration Award which was granted in Msimango’s favour was challenged by Jordex Agencies, which Review Application was opposed by Msimango.

The Award

The CCMA found Msimango’s dismissal to be unfair because the witnesses that were called to testify were not employees at Jordex Agencies and were therefore not allowed to testify on Msimango’s behalf.

The CCMA found that Msimango had a cordial working relationship with Jordex Agencies and that her working hours were from 07h30 to 16h30. When the location of Jordex Agencies changed Msimango was given permission to leave work earlier to catch the last bus home at 16h45. The change as requested by some employees in working hours was effective from the 1st of April 2011. This was to the exclusion of Msimango who was not present when the request was made. The hours were changed from 08h00 to 17h00 so that couriers arriving after 16h30 could be catered for. The CCMA found that Msimango was not a courier and had been leaving work early for four years. There was tension between Miss Van Der Walt, the manager of Jordex Agencies and Msimango due to the fact that Msimango believed that Van Der Walt didn’t take her circumstances into consideration.

Item 3 of Schedule 8 to the Labour Relations Act 66 of 1995 (LRA), and the Code of Good Practice deals with disciplinary measures which are not dismissals and the procedures for these disciplinary procedures. The CCMA found that the rule changing Msimango’s working hours, which she was used to for four years, was unreasonable and that the dismissal had been unfair. The CCMA determined that Msimango had to be reinstated and paid R2 750-00 in compensation by Jordex Agencies.

Grounds for review

Jordex Agencies felt that the CCMA erred by preventing the chairperson Msimango from calling witnesses to testify on her behalf and that the CCCMA’s decision to find the dismissal procedurally unfair was not based on evidence, as Msimango had not been prevented from calling witnesses. There was an error made because one of the witness, Harry Jordaan, was not called as a witness due to the fact that he was deceased. Jordex Agencies argued that the CCMA was unreasonable by finding that they should have counselled Msimango about the warnings and dismissal and further claimed that the CCMA had been irregular by neglecting the validity of the rule (leaving work earlier) breached by Msimango. Jordex Agencies also felt that the CCMA was unreasonable in concluding that Jordex Agencies had been unreasonable in setting a standard of working hours for its employees.

Jordex Agencies claimed that Van Der Walt was justified in ensuring that all the employees had the same working hours.

Msimango felt that her Arbitration Award was reasonable and should not be reviewed or set aside, in turn she argued that the CCMA had erred in finding that Harry and Jordaan were two different people, but found that there was nothing wrong in how the CCMA had failed to deal with the validity of the leaving-work-early rule.

The Test for Review

The matter of Fidelity Cash Management Services v CCMA & Others [2008] 3 BLLR 197 (LAC) deals with the determination of the reasonability of Arbitration Awards. The Constitutional Court stated that the decision reached by the CCMA should be “one that a reasonable decision-maker could not reach”. If this is not the case then the decision will be reviewable and can be set aside. The Court also held that to determine fairness, the task is given to the Commissioner in terms of the LRA. The factors that should be considered are the totality of the evidence, whether the Commissioner dealt with the main issue and has considered all the evidence and reached a reasonable decision as confirmed in the Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others [2014] 1 BLLR 20 (LAC) case.

The judge in the matter considered all the evidence that was before the Commissioner and all the submissions by the Jordex Agencies and Msimango. Van Der Walt said that the reason why the other witnesses could not testify was because they were not part of the company. The CCMA had erred in finding that not calling the witnesses was procedurally unfair. Jordex Agencies had been denied the chance to respond to the allegation.

The CCMA had not considered the validity of the rule. In Herholdt v Nedbank LTD [2013] 11 BLLR 1074 (SCA), the Court held that material errors of fact are insufficient to set aside an Arbitration Award. The material errors are however important when their outcome would be unreasonable. The validity of the rule was not in dispute. In terms of Section 193 of the LRA, the reinstatement of employees where they were unfairly dismissed is allowed.

Jordex Agencies alleged that the CCMA had been unreasonable in deciding that the change in working hours had not catered for Msimango’s circumstances with reference to the SAPU and Another v National Commissioner of the South African Police Service and Another [2006] 1 BLLR 42 (LC) case, where an employer was allowed to regulate working practices. However the regulation of working practices of the police is governed by the South African Police Service Employment Regulations, and more specifically Regulations 30 and 31 which stipulates the following:

“30. Working hours of the service and conditions must support effective and efficient service delivery while, as far as reasonably possible, taking into account the personal circumstances of employees including those of employees with disabilities.

  1. Working hours

The National Commissioner must determine –

  1. The work week and daily hours of work for employees; and
  2. The opening and closing times of places of work and her or his control, taking into account –
  • The needs of the public in the service delivery improvement programme of the service; and
  • The need and circumstances of employees, including family obligations and transport arrangements”

The authority used by Jordex Agencies confirms that the Commissioner’s decision was not unreasonable. The authority also stipulates that the employer’s power to regulate work practices can be limited.

The employer must consider service delivery. The employer changed its hours to cater for couriers who arrive after 14h30. The courier services don’t affect Msimango. Jordex Agencies should have taken into account the effect of the changing work hours on Msimango. Msimango had to leave work earlier because of transport reasons which arrangement was effective for four years. The changes in working hours forced Msimango to breach the timekeeping rule. The CCMA’s decision is therefore one that a reasonable decision–maker would make on the evidence before her.

The Labour Court dismissed the Review Application and as a result Msimango was reinstated and compensated as above.

By Justina Chirwa
justina@dyason.co.za