Members
Reinstated At Gallo Group Pty Ltd
Two Members
of FAWU employed by Gallo Group, a mussel processing factory in Velddrif on the
West Coast, were reinstated retrospectively through the outcome of an
arbitration hearing at the CCMA (WECT2964-20) after being represented by FAWU
organiser, Elind Haarder on 23 April 2021.
The award
indicated that the dismissal was substantively unfair but procedurally fair.
The employer
accused employees of acting fraudulently in relation to absenteeism by claiming
sick leave instead of disclosing that they were on their way home when they
were supposed to be at work. FAWU referred the matter to the CCMA after their
dismissal on 31 January 2020. The employer alleged that the trust relationship
has broken down and she could not continue to work with them. The union claimed that the hearing was unfair
since the initiator and the chair person is the same person. The employer
claimed it was standard practice for her to chair meetings at the workplace due
to the cost of using an outside party.
The purpose
of the arbitration hearing was to determine whether the dismissals were
substantively and procedurally fair. Commissioner M. Nash found the dismissal to
be procedurally fair because …”a dismissal does not become automatically unfair
when the initiator and the chairperson is the same person but rather, is based
on whether the applicants were afforded the opportunity to defend themselves,”
which did take place in this incident.
Commissioner
Nash used The Code of Good Practice (Section 8- LRA) to assess whether the
sanction was appropriate. He subsequently found that the applicants simply
showed bad judgment and there was “ … a clear misrepresentation of the facts..”
because of the failure to mention that they were still on their way home with a
taxi on the day they were supposed to report to work. He found the employees played open cards when
confronted by the employer and showed remorse for their actions. The arbitration
award mentions “…the sanction of dismissal was inappropriate although acts of
dishonesty are regarded as serious transgressions. It does not however mean
that dismissal is the appropriate sanction.” Commissioner Nash conveyed that he
saw no evidence to suggest that reinstatement would be impractical, as it
remains the primary remedy prescribed by the LRA. He also said that employees
should be reminded of their responsibility to act honestly with their
employers.
The effect
of the lockdown and the delay of CCMA cases were considered when the two employees
were awarded 5 months retrospective back pay due by the end May 2021 failing it
will attract interest at the prescribed rate. They were to report back to work by 1 June 2021.
Viva FAWU!
