FAWU Welcomes CCMA Findings Reinstating Members

 

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!