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IN THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE

Not Reportable

CASE NO: JR 1280/20

In the matter between:

SHOPRITE CHECKERS (PTY) LTD Applicant

and

MALEBOGO SOLOMON CHILOANE First Respondent

COMMISSION FOR CONCILIATION, MEDIATION AND Second Respondent

ARBITRATION

COMMISSIONER VUSI MFANA MNISI N.O. Third Respondent

Date heard: 28 October 2021

Date Delivered: 05 November 2021

___________________________________________________________________

JUDGMENT

_________________________________________________________________________

MANGENA AJ
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[1] This is an unopposed review application in which the applicant seeks an order
to review and set aside the award issued by the third respondent under case
number MPEM 3262-20.

[2] The application arises out of the following brief facts: Mr Chiloane (employee)
was employed by Shoprite Checkers (Pty) Ltd as a Non-Food General
Assistant from 25 September 2017. During the period of his employment he
was charged with misconduct relating to poor time-keeping and absenteeism.
On each occasion he was charged, the company issued him with written
warnings valid for a period ranging from 3 to 6 months. When the misconduct
became incessant, the company imposed final written warnings and on each
occasion stated in the warnings that: Possible consequences of future
repetition or failure to rectify will lead to further action being taken against you
which could lead to possible dismissal from the company if found guilty.

[3] On the 11 March 2020, Mr Chiloane was once again arraigned to appear
before the disciplinary enquiry to answer to the charges of unacceptable
absenteeism/poor time keeping. He was found guilty and dismissed from the
company.

[4] Aggrieved by the outcome of the disciplinary hearing, he referred an unfair

dismissal dispute to the CCMA and the matter was adjudicated by the third
respondent. In the arbitration, the company led evidence of two witnesses
who testified at length on the various misconduct hearings conducted against
Mr Chiloane and his failure to rectify his behaviour. Mr Chiloane testified for
himself and admitted to his continuous absenteeism but stated with regard to
the charges preferred against him on 11 March 2020 that he reported to the
line manager. There was no evidence of how this report was made.

[5] After listening to the evidence, the commissioner rendered an award in which
he recorded that it is common cause that applicant (Mr Chiloane) had been a
serial recipient of written warnings for poor time keeping. However, he could
not find that the dismissal was substantively fair on the basis that he was
granted leave to be away from work by his line manager on 26 and 27
December 2019. He further recorded that the invitation to attend a disciplinary
hearing on 11 March 2020 was based on the previous warnings and not on
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any allegations of new misconduct as Mr Chiloane had not committed any

offence since he was issued with a written warning on 01 January 2020. On
the basis of aforegoing he found that the dismissal was substantively unfair
and ordered that he be re-instated back to his position with full back pay.

[6] Shoprite Checkers seeks to review the award on the basis that the arbitrator
committed gross irregularity in the conduct of the proceedings in that he
ignored relevant evidence to the effect that Mr Chiloane had admitted to
absenteeism and therefore the breaking of the rule. He further ignored that
subsequent to the final written warning issued on 01 January 2020, Mr
Chiloane yet committed another misconduct where he failed to work an
afternoon shift. The contention by the employer is substantiated by numerous
written warnings which have been issued against the employee, Mr Chiloane.
The arbitrator has clearly committed an error by ignoring these facts. The
error is in my view so material that it made him arrive at a decision which no
reasonable decision-maker could arrive at. Given the numerous warnings
issued against Mr Chiloane and his continuous failure to redeem himself, the
employer cannot be faulted for dismissing him. Absenteeism is an operational
risk that any employer should mitigate against and one way of doing so is by
imposing sanction of dismissal in appropriate cases. This is one such case.

[7] The applicant has asked that the award be reviewed and set aside and be
substituted with an order that the dismissal of Mr Chiloane was both
procedurally and substantively fair. I intend to make this order. The applicant
did not ask for costs, correctly so in my view. There will accordingly be no
order as to costs.

[8] It is ordered that:

Order:

1. The arbitration award issued by the third respondent on 13 August

2020 under case number MPEM 3262-20 is reviewed and set aside.

2. The decision of the third respondent is substituted with a decision that

the dismissal of the applicant (first respondent in this matter) was both
procedurally and substantively fair.
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3. No order as to costs.

_____________________

M. I. Mangena

Acting Judge of Labour Court of South Africa

Appearances:
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For the Applicant : Ms Masuku of Wilken Incorporated

For the First Respondent : No appearance