CASE STUDY – LABOUR COURT CASE:

C Msibi & 12 Others v CCMA & Others – JR 1365/13 (LC)

BACKGROUND TO THE CASE:

C Msibi & 12 others (the applicants) were employed as “Compounders” and “Assistant Compounders” in a large factory, based in Midrand, Gauteng. This factory is a third-party manufacturer of household cleaning liquids and gels, as well as personal care products. The main role of a Compounder and Assistant Compounder is to transform raw materials (chemicals) into manufactured bulk liquids or gels, which is then ready to be packaged into bottles/tubes/jars. These roles are therefore critical in ensuring the uninterrupted operational process of this large and complex manufacturing plant.
The thirteen employees were informed that they needed to report for duty over the Easter weekend in April 2013. This instruction was given to the employees by the Manufacturing Manager on the Monday, preceding the long weekend. It is important to note that all employees had contractually agreed to work overtime (which includes weekends and public holidays), when reasonably instructed to do so. The thirteen instructed employees did not report for duty during the long weekend. They also did not apply for leave or report their absence to their Manager, as procedurally required. On the Tuesday (after the long weekend) the thirteen employees returned to work, but were denied access to the organisation’s premises. They were verbally informed by the Operations Manager that they had been summarily dismissed as a result of their absconsion. They were henceforth ordered to leave the company premises.
Henceforth, the thirteen employees referred a case of unfair dismissal to the Commission for Conciliation, Mediation & Arbitration (CCMA). This referral resulted in a comedy of errors,

committed by CCMA Commissioners, due to the misconception of the substantive and procedural fairness of a dismissal due to the absconsion of an employee. Furthermore, this case was referred to the Labour Court, on two occasions, upon which the Judge ordered that, in the interest of justice, the matter be referred back to the CCMA for arbitration by a new arbitrator. The judge ordered the arbitrator to determine whether the employees did in fact abscond and whether the employer engaged in a fair process to dismiss the thirteen employees.

2. SPECIFIC ASSIGNMENT INSTRUCTIONS

i. This assignment is based on the foregoing background to the case and associated Labour Court case judgement.
ii. Study the aforementioned Labour Court case – C Msibi & 12 Others v CCMA & Others – JR 1365/13 (LC)
iii. Additionally, study the following two court cases:
a. South African Broadcasting Corporation v CCMA & Others [2002] 8 BLLR 693 (LAC);
b. Jammin Retail (Pty) Ltd v Mokwane & Others (JR 2784/09).
iv. All the required assignment material (court cases) are uploaded on the iKamva platform as additional resources to this assignment.
v. Complete the following assignment questions.

3. QUESTIONS

1. Define and critically discuss the difference in the requirements for (1) substantive and (2) procedural fairness in the following cases of misconduct:
(20 Marks)

a. Absence without leave
b. Absconsion

2. Based on the case study, write a concise but conclusive message to the thirteen employees, on behalf of the employer, to warn them of their misconduct. This message should also instruct them to report for duty within 24 hours from the date and time of the delivery of the message (30 March 2013 at 07h30).
(5 Marks)
a. Use the judgement of South African Broadcasting Corporation v CCMA & Others [2002] 8 BLLR 693 (LAC) as a guidance in formulating this message.
b. This message is intended to be sent electronically (via SMS) to the thirteen employees.

3. Formulate sections of a disciplinary policy (one paragraph each) which regulates employees’ behaviour and the employer’s disciplinary actions in cases of:
(10 Marks)
a. Absence without leave
b. Absconsion

4. Assume that the thirteen employees did not report for duty as instructed in Question 2 above, but did in fact return to work after the long weekend:
(10 Marks)
a. Formulate a disciplinary charge, which is to be issued to the employees in the form of a formal Notification for Disciplinary Enquiry.
b. This Notification should also inform the employee of his/her rights during the disciplinary enquiry.

Answers to above questions on Labour Relations

Answer 1: There are significant differences noted in case of the requirements for substantive and procedural fairness in case of misconduct. The main focus area of substantive requirement is the nature of misconduct itself, and this particular misconduct requires clear and convincing evidence in order to find someone guilty of misconduct. Fairness requirements on the other hand is related to procedures that are utilised in performing the investigation. In the given case scenario of C Msibi and 12 others, the difference in the requirement for substantive and procedural fairness is ……