|Bitmap| ARBITRATION AWARD Commissioner: Thulani Dube Case No.: NW5919-03 Date of Award: 19 /12/03 In the ARBITRATION between: David Motaung (Union / Applicant) and Nando`s (Respondent) Union/Applicant's representative: David Motaung Union/Applicant's address: P.O Box 956 Baratheo 0338 Telephone: Telefax: Respondent's representative: Leigh Dauberman Respondent's address: P.O Box 53618 Troyeville 2139 Telephone: 014 552 1127 Telefax: 014 552 1768 DETAILS OF THE HEARING AND REPRESENTATION The dispute was referred for arbitration in terms of Section 191(5A)(a) of the Labour Relations ACT 66 OF 1995 as amended (" LRA"). The hearing was held in the offices of the CCMA at Zinniaville on the 25 November 2003 .The proceedings were recorded electronically (3 tapes were used) The applicant appeared in person. The respondent was represented by Leigh Daubermann its H.R Manager. ISSUES TO DECIDED I must decide whether or not the dismissal of the applicant was procedurally and substantively fair. SURVEY OF EVIDENCE RESPONDENT'S VERSION: Leigh Daubermann This is a summary of his evidence under oath He testified that the applicant was issued with a notice to attend an inquiry on the 29th July 2003. The charge was that the applicant had committed a misconduct by repeatedly coming late to work. The hearing was postponed to the 6th August 2003. The hearing was conducted in a fair procedure. The initiator was Paul Gomez for the respondent. Louis van Zyl was a witness. At the conclusion Daubermann as chaiperson of the enquiry found the applicant guilty on the balance of probabilities. He considered both mitigating and aggravating factors and issued a sanction of dismissal. He verbally informed the applicant of his decision. PAUL GOMEZ LUIZ This is the summary of his sworn evidence He is employed as the manager of the respondent. He charged the applicant for being late for duty without permission or notice to the management. The applicant had been late on two occasions. On the 22nd April 2003 the applicant arrived 30 minutes late for duty and was issued a written warning valid for 6 months. On the 24th June 2003 he received a warning for being late for 8 minutes. He received a final warning for insurbordination after he refused to sign the attendance register. The applicant arrived late again and a hearing was arranged. The hearing was held on the 6th August after being postponed. The applicant was fifteen minutes late on the day of the incident. He stated that he cannot trust the applicant as their relationship had become intolerable. LOUIS VAN ZYL This is a summary of his evidence He is employed as assistant manager of the respondent. On the 24th June 2003 the applicant refused to sign the attendance register. He was then issued with a final warning. On the day of the incident the applicant arrived 15 minutes late. The applicant had phoned to notify the management that he would be late. The applicant did appeal against the sanction of dismissal APPLICANT'S VERSION DAVID MOTAUNG This is a summary of his evidence The applicant stated that he was employed as a griller on a salary of R I 350. He was employed on the 26th May 1999. He testified that the first written warning he received after attending a funeral and then he arrive late at work. He in fact had phoned Gomez and informed him that he will be late for duty. They agreed that he would work an extra 45 minutes to cover for the lost time. He refused to work overtime on the third day after this incident. Gomez issued him with a written warning. The other warning was for late coming after he was delayed by the shuttle ferrying him to work. On the 29th July 2003 he was issued a notice to attend hearing for late coming. The applicant stated that he was with another employee known as Naomi when he arrived late. He was not aware that van Zyl had already opened the shop when they arrived. He did not plead guilty at the hearing. He confirmed that he was allowed to be represented at the hearing. He called and cross-examined witnesses. At the conclusion of the hearing he was told that he had been dismissed. ANALYSIS OF EVIDENCE AND ARGUMENT In the evidence of both Gomez and van Zyl it is averred that the applicant is a difficult person to work with. In their evidence as witness of the respondent they testified that the applicant repeatedly arrived late. In the evidence of Gomez it is stated that applicant received a written and final written warning for late coming. The applicant in his evidence argues that at all these he had provided plausible reasons for his failure to arrive on time. It is clear that the applicant breached the rule of the respondent by repeatedly arriving late on three occasions. From the evidence it is clear that the respondent is consistent in applying discipline on such misconducts. The applicant was not given a chance to improve his conduct and no counseling was done in an attempt to correct the behaviour of the applicant. The sanction of dismissal in this instance is harsh. It is law that I can only interfere with the sanction if it is so "excessive as to shock ones senses of fairness. In such a case I have a duty to intervene. See Country Fair Foods (Pty) Ltd v CCMA (1999) 20 ILJ 1701(LAC). The sanction of dismissal of the applicant is excessive and it shocks my sense of fairness. The applicant relief sought is compensation and having noted Gomez submission on the relationship with the applicant. I have noted that ordering reinstatement in this matter would be creating an intolerable situation at the respondent workplace. AWARD In having found that the dismissal of the applicant was substantively unfair, I make this order: 1. The respondent to pay the applicant compensation equal to six months salary which is an amount of R 8100-00(Eight thousand and one hundred) 2. The amount is payable or before the 31st December 2003. 3. No order of costs is made Signed at Klerksdorp on the 19 December 2003 CCMA Commissioner: Thulani Dube Sector: Food/Beverage (manufacture & processing) No of tapes (3) ?? ?? ?? ?? Page 2 of 5 Page 1