The dismissal of a general worker who provided false information, not realising that people he regarded as immediate family (in the Zulu culture) were not covered by the employer’s policy, was found to be unfair.

Toyota SA Motors (Pty) Ltd v National Union of Metalworkers of SA on behalf of Njilo & others (2022) 43 ILJ 2393 (LC)

Case Summary 

A CCMA commissioner arbitrated a case of unfair dismissal, and the evidence led her to agree that the dismissal was indeed unfair. The employer in the case then requested that the award be reviewed by the Labour Court in terms of section 145 of the Labour Relations Act 66 of 1995.

The applicant was a general worker who had been dismissed for giving false information about his relationship with deceased family members. He received compassionate leave, which was not covered in the company’s leave policy. The applicant had a long history as an employee at the company, 17 years of service with a perfect disciplinary record, and the commissioner found no reason to believe that the trust relationship had been destroyed.

Being a general worker, the applicant requested leave from his (Zulu-speaking) group leaders, who then submitted the forms on his behalf to the HR department. The applicant stated that he had not been dishonest nor did he hide his relationship to the deceased family members from his group leaders, that they were well aware of who in his life had passed away, and that he as a Zulu man would assume responsibility for the son of his deceased brother, the wives of his deceased father and his aunt. In his culture, these are considered close family members.

The applicant claimed he was not aware of the intricacies of the company’s leave policy, which the arbitrator tended to believe, as the leave policy is a 35-page document with the compassionate leave section in an obscure place in smaller text. There was no indication that the applicant had ever received a copy of this document, or had it explained to him. According to him, he had merely heard from a colleague that one can apply for leave if family members pass away. He denied being dishonest and trying to take paid leave for which he knew he did not qualify.

The CCMA commissioner ruled that the dismissal was indeed unfair. The company, consequently, applied to the Labour Court to review the CCMA’s award.

In response to the application for review of this award by the Labour Court, the judge found it pertinent to refer back to a Constitutional Court case, which had more clearly defined the narrow standards of such a review. The Labour Court in this case was not obliged to provide a fresh take on the entire situation, but merely to determine if certain criteria for sound decision-making had been met by the arbitrator. Had the arbitrator misunderstood the facts in the enquiry? Had she come to a decision that another arbitrator faced with the same material would probably not have come to? These, among other criteria, were considered.

The Labour Court rejected the company’s assertion that the arbitrator had not given the parties an opportunity to address her on Zulu culture norms, and found that the employee had indeed provided more than enough information about this subject during the leading of evidence. The court also rejected the ground for review that the arbitrator had not correctly assessed the employee’s knowledge of the leave policy. It was also suggested that when cultural misunderstandings are bound to arise, the company should probably take more care to explain its complex leave policy to all employees, and there was no evidence that this had been done with this particular employee.

The Labour Court found that the decision the arbitrator came to was one which another reasonable decision-maker in her position would probably have made when faced with the same situation, that there were no irregularities in her assessments, and that the proceedings had been conducted correctly.

The company’s application for review was dismissed.

Submitted by Labour Guide