Name: Vhulenda Mauda

Module Code: MRL3702

Student Number: 61831336
Assignment No. 1

1
Summary of Facts
Mr. Chiloane was an employee at Shoprite Checkers (Pty) Ltd as Non-Food General
Assistant from 25 September 2017. During Mr Chiloane time at the company, he was
charged with a misconduct relating to poor timekeeping 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.
Mr. Chiloane 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.
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.
The matter was the referred an unfair dismissal dispute to the CCMA and 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 about 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.
"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." (“www.saflii.org”) 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 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
a foregoing, he found that the dismissal was substantively unfair and ordered that he be re-
instated back to his position with full back pay.
But the company seeks to review the award on the basis that the arbitrator committed gross
illegal 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 after the final written warning issued on 01 January 2020, Mr
Chiloane yet committed another misconduct where he failed to work an afternoon shift.
(“Shoprite Checkers (Pty) Ltd v Chiloane and Others (JR1280/20) [2021 ...”) 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.

2
Issues in dispute in the case
Issue that are being dealt with in this case are the behaviors of an employee Mr. Chiloane
whom is found guilty of poor time-keeping and absenteeism. Before everything escalated to
court hearing, Mr Chiloane was given a few 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.
Court’s Verdict
The award was reviewed and set aside and was substituted with an order that the dismissal
of Mr Chiloane was both procedurally and substantively fair. (“Shoprite Checkers (Pty) Ltd v
Chiloane and Others (JR1280/20) [2021 ...”)
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.
3. No order as to costs.
Legal Opinion
Mr Chiloane is guilty of poor timekeeping and absenteeism, he was found guilty of both
charges and dismissed from the company. I think the dismissal of Chiloane was appropriate
and fair as poor time-keeping and absenteeism are unacceptable when it comes to work
ethics those kinds of behaviours are prohibited.
Shoprite Checkers (Pty) is within their rights to act upon an employee who is not performing
as expected, action should be taken against misconducts that employee commit to ensure
the maintenance of proper work ethics
This is a misconduct by Mr. Chiloane because before everything reached labour court, he
was given written warnings, but the misconduct became incessant and legal action had to be
taken against him which I approve of.
Anything that interferes with work ethics should not be left unattended because it affects the
business’s progress and day-to-day work.