|This case deals with the review of an arbitration award which was issued on 17 March 2013. Below, are the facts that lead to the aforementioned arbitration award.
Lucas Moeketsi Molehe (“the Applicant”) was employed by the Department of Social Development, Free State Province (“the third Respondent”), as a social auxiliary social worker, since 1980. On or about 14 September 2011, the Applicant was sentenced to direct imprisonment (for 4 years) for charges of bribery and corruption. The applicant was incarcerated from 14 September 2011, until 2 July 2012. On or about 14 March 2012, the Applicant was issued with a written notice, from the third Respondent, advising him of termination of his services, on the basis of incapacity.
Abraham Nthako N.O, (the second Respondent, hereinafter referred to as “the Arbitrator”) found that the Applicant’s dismissal was procedurally unfair, hence he awarded the Applicant three months’ compensation (adding up to a total of R58,900.50). The basis for his finding is a follows:
- The third Respondent dismissed the Applicant on the basis of incapacity, because the applicant was incarcerated;
- The third Respondent failed to refer the matter to a disciplinary hearing, to be able to hear the Applicant’s side of the story; and
- Although criminal cases are different from labour matters, that does not mean the third Respondent should not hold a disciplinary action.
With regards to the question of substance, the Applicant did not delve much into that aspect, and in the case of Samancor Tubatse Ferrochrome v MEIBC  ZALAC7, was it echoed that the dismissal, for incapacity, of an employee who was incarcerated for a considerable period of time was substantively fair. The main thrust of the Applicant’s grounds of review, as per his founding and supplementary affidavit, are that the Arbitrator concluded, that his dismissal was substantially fair in a situation whereby the third Respondent did not give viva voce evidence. Even after the Applicant, in his own version, as he set out the background of [t]his dispute during the arbitration hearing, was found guilty beyond reasonable doubt, of bribery and corruption in relation to his ‘clients’, he still seeks to be reinstated.
|Relying on Ferrochrome v Metal & Engineering Industries Bargaining Council & others,in respect of the principle of ‘incapacity’, in labour law, arising from imprisonment, did the applicant argue that incapacity, which is outside of the control of the employee, cannot be a cause for dismissal. The aforementioned case was, however, overturned on appeal because of the way the review test was applied.
With regards to how the incapacity, which is outside of an employee’s control, could lead to either a fair or unfair dismissal overturned on appeal, the court referred to National Union of Mineworkers & another v Smaancor Ltd, (Tubatse Ferrochrome) & others,which stated that the assessment, in respect of the question of whether an employee can perform in terms of the employment contract, incapacity herein, boils down to whether the employee is at fault for this.
Lastly, the point of review applications is for the interpretation of labour law to not be done with rigidity. The third Respondent did not lead evidence at the Arbitration, but instead, chose to cross-examine and argue only. The Applicant, in his own testimony, confirmed that his dismissal was substantively fair, so that killed the need for the third Responded to lead evidence anyway.
Accordingly, the application was dismissed with costs.
The rigid application of principles, such as the distinction between criminal and disciplinary proceedings are to be avoided.
Written by Puseletso Radebe and supervised by Omphile Boikanyo