In Air Liquide (Pty) Ltd v Nkgoeng NNO and Others [2022] 7 BLLR 636 (LAC), the employee was absent from work and was contacted by the branch manager regarding his whereabouts.
The employee claimed that he was in fact on site and gave a description of his whereabouts, but his branch manager could not find him there. The branch manager later phoned the employee and instructed him to come and see him. The employee alleged that he did go and see his branch manager but could not find him. The employee was dismissed for gross dishonesty for lying about being at work and gross insubordination for failure to obey an instruction to meet his branch manager. The employee referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the arbitrator accepted the employee’s claim that he was at work. The dismissal was accordingly found to be substantively unfair, and reinstatement was ordered. This decision was based on the fact that the arbitrator accepted that a printout from the canteen was proof that the employee had been at work.
The employer took the matter on review to the Labour Court (LC) but the LC dismissed the review application.
Both the CCMA and LC found that the printout from the canteen was proof of the employee’s attendance at work as the veracity of the canteen printout had not been challenged.
On the other hand, the employee had conceded that the depot was so small that there was no way his manager would not have seen him if he had been at work on that day. This printout was for the canteen and was not an actual attendance register for the worksite. Furthermore, no evidence was led regarding how close the canteen was to the worksite. Based on this, the Labour Appeal Court (LAC) held that no reasonable arbitrator could have reached this decision based on the printout from the canteen.
Furthermore, the CCMA arbitrator had made a finding that the employer’s witnesses were unreliable, and the employee was a credible witness, but he set out no legal basis for making such a credibility finding.
The LAC found that these findings were not rationally connected with the evidence. In this regard, the arbitrator failed to consider that the employee corroborated the evidence of the employer’s witnesses and, therefore, the LAC was of the view that the employer’s witnesses were more reliable than the employee.
In this regard, the employee confirmed that he was not seen at work on the day in question, he confirmed that his manager had not seem him and that the workplace was so small that there was no way his manager would not have seen him if he was present. Furthermore, he confirmed that he had told his manager that he was at boiler four and that his manager had not found him at boiler four and that he did not go and see his manager after being requested to do so. He also confirmed that he only signed the attendance register the next day.
The LAC found that this evidence led to a finding that the employee was not present at work and the LC should have found that the arbitrator’s finding was not rationally connected to the evidence before him.
This was, therefore, not a decision that a reasonable decision maker could make, and the arbitration award was set aside. The LAC found that the dismissal was substantively and procedurally fair and no order was made as to costs.
Monique Jefferson
