Phai v Fidelity Guards (Pty) Ltd (LC 137 of 96) [1997] LSLC 12 (12 June 1997)

IN THE LA BO U R COU R T OF LE S O T H O CA S E NO LC 137/96 HELD AT MA S E R U IN THE MATT E R OF: MOLI S A N A PETE R PHAI APPLI C A N T AND FIDELI T Y GUA R D S (PTY) LTD RE S P O N D E N T ________________________________________________________________________ JUDGMENT ________________________________________________________________________ This application arises out of the dismissal of the applicant by the respondent on the 30th October, 1996 for having allegedly absconded from work. The applicant complains that his dismissal was unfair because he was on sick leave and he was not afforded an opportunity to be heard before the dismissal. The applicant did not lead any evidence. However, the respondent subjected him to a lengthy cross-examination. It must, however, be noted that whatever the applicant said under cross-examination was not on oath. It goes without saying therefore , that his evidence, will have to be treated with caution. The respondent on the other hand led the evidence of three witnesses. It is that version of the respondents’ evidence which the Court shall rely on for purposes of summarising the facts because it was given on oath. Mr Daniel Phapho who is the applicant’s co-worker testified that on the 8th June, 1996 it was a Saturday. He was working in Ladybrand, while applicant was in Maseru collecting client’s monies for banking. Before he (Phapho) left for Ladybrand he instructed applicant to take his (Phai’s) vehicle to the mechanic for engine overhaul at the end of the shift. He also told him to take the firearm safe box to the South African Boder Police for safe keeping. Since they work until banks close, it would have been around 1100 hours when applicant took the vehicle to the mechanic because on Saturdays banks close at 1100 hours. When he came back from Ladybrand, he had to go via the South African Police at the border to also leave his firearm. He found that the applicant had already left the box there, but did not check if the applicant’s firearm was also there. He specifically stated that he did not check because he trusted the applicant. He thereafter proceeded to the same garage where applicant had taken his vehicle, because his also had a problem with the starter. He found applicant already there. The witness told the Court that the mechanic told him that another one of the company vehicles which had been brought there a week earlier was ready for collection. He gave him (Phapho) the keys to remove it. Phapho called the applicant and handed him the keys in the presence of the mechanic with the instruction that he should go and park the vehicle at the site at Maseru Sun Cabanas. He testified that it should have been between 12.00 noon and 1300 hours when he so instructed the applicant. The witness testified further that the next day, which was a Sunday, he received a report in the morning that one of their company vehicles had overturned at Ha Tsolo between 0600 hours and 0700 hours that morning. He rushed to scene of accident accompanied by the mechanic to whom they had taken their vehicles with the applicant the previous day. On arrival they found that the vehicle which had overturned was the one which the applicant was instructed to go and park after it had been released by the mechanic the previous day. The vehicle had been carrying cement and there was also a dog with a broken leg inside. The witness stated that he did not know how the vehicle got there, but the last person to drive it had been the applicant. The witness concluded his evidence by stating that he then went to Clocolan to report to Mr Fourie, the respondent’s Assistant Manager. Mr Fourie confirmed in his evidence that Mr Phapho came to inform him about the accident. He testified further that he asked Phapho to take him to the scene; which he did. He found the vehicle on the Thetsane road. It was a complete right off and there was cement scattered all around and inside the vehicle. He also confirmed that the dog was there. He stated further that he interviewed the local people about what happened and when the accident occured. He was told that it occured at between 0600 hours and 0700 hours on Sunday morning. He was further told that the driver of the vehicle and another person had been taken to hospital. He then arranged for a breakdown. At around 1500 hours that afternoon, the witness said he went to Queen Elizabeth II Hospital where he found the applicant convalescing. He asked him what happened and all applicant could say was “what is wrong with my friend?” He talked to the Doctor who was treating applicant who told him he treated the applicant and another person who was covered with cement for shock, however, when he tried to take the particulars of that other person he disappeared. Mr Fourie testified further that he again went to see the applicant on Monday 10th June. He had gone to ask him about his firearm which was not in the container where it ought to have been kept at the end of the shift on Saturday. He stated that they exchanged greetings with applicant, but as soon as he asked him about the firearm he feigned fainting. He said in his observation the applicant was not unconscious. He then went to the police to report the loss of the firearm. Whatever could be said to be applicant’s version is contained in his answers to questions said was not under oath. under cross-examination, which as already Notwithstanding cautioning itself about the admissability of applicant’s evidence, applicant’s answers were clearly evasive, full of fabrications and deliberate concealment of information that ought to be readily within applicant’s knowledge. For instance, applicant claimed that the accident occured while he was using the vehicle lawfully to transport his property from Ha Tsolo to Lifelekoaneng. He claimed he had been given permission to use this vehicle by Mr Phapho. However, Phapho categorically denied ever authorising the use of the vehicle as alleged, or even having authority to release the vehicle for private use by the applicant. The latter failed under cross-examination to prove Phapho wrong. He could only ask Phapho two questions which had no bearing on the alleged authorization to use the vehicle. When he was asked what property it was that he was going to fetch from Ha Tsolo, he said it was a bed and mattress and cement. In his evidence Mr Fourie testified that the vehicle that applicant was driving was an armoured Hiace combi with space for a driver and his passenger at the front seat and only one person at the back. He stated that the space for the one person at the back is about one meter and there was no way a bed and mattress could fit in there. Again this evidence could not be contradicted by the applicant. Whilst applicant alleged that he knew that the accident occured on Saturday 18th June at around 2200 hours, he could not recall when he was admitted to hospital. Asked when he was released from hospital he did not know. Neither could he remember how long he spent in hospital. Asked if there could be some records that would show when he was discharged from hospital, he said he had only sick leaves. It must be stated that those sick leaves which are annexed to applicant’s originating application do not show when he was discharged from hospital. Asked if his hospital file would show such information he said no. There is no doubt that applicant was running away from divulging this important information by conveniently not recalling when he was admitted, when he was discharged and how long he spent in hospital. His hospital file and his Health Book, which is kept by him would surely have such information. Indeed when this was suggested to him by the Court he could not but agree. In our view applicant’ s story as conveyed under cross-examinations was full of cover-ups, evasiveness and deliberate untruths. Despite the fact that its admissability was already to be done with caution, it is, however, rejected for the above reason. It is therefore the respondent’s version that will guide us. Both parties agree that following the accident; the applicant was charged with the use of company vehicle without permission and being in possession of a firearm without permission. The applicant was served with the notification of hearing on the 19th July, 1996. The hearing was to be on the 2nd August, 1996. Both the chairman of the inquiry, Mr Burger, and Mr Fourie who was to be a witness testified that the applicant did not attend. His representative was, however, in attendance, but did not know where the applicant was, or why he had not attended. Mr Burger testified further that he postponed the hearing to the 5th August and caused notice to that effect to be served on the applicant. The applicant again did not attend. He stated further that he issued a third notification postponing the hearing to the 6th August, and again caused same to be served on the applicant. This time the applicant attended. The witness testified that he asked the applicant a couple of questions, one of which was whether he had had enough time to prepare for the hearing, he said no. The witness said that they then agreed with the applicant to postpone the hearing to the 30th August, 1996. Mr Burger is supported in this regard by Mr Fourie. According to Mr Fourie’s testimony, about a week after the 6th August, which should have been during the week beginning Monday 12th August, 1996, the applicant served him with annexure “C” to the originating application. Annexure “C” is a copy of a medical certificate which purported to book applicant off work from 1st August, 1996 to 28th August, 1996. The certificate bore the rubber stamp date of 7th August, 1996. Mr Fourie testified that he informed applicant that because of the conflicting dates the certificate was not acceptable . According to the dates of the certificate, applicant’s first day at work would have been the 29th August. It is common cause between the parties that on that day applicant did not attend work. Friday the 30th August was the agreed date of hearing of the applicant’ s case. According to the evidence of Mr Burger and Mr Fourie the hearing was scheduled for 0830 hours. However, at that time there was no sign of the applicant. They allegedly waited for the applicant until 1030 hours when the chairman called all those present. The hearing allegedly continued in applicant’s absence and he was found guilty and dismissed. However, because he was not there the decision could not be communicated to him. Mr Fourie went further to say that he only saw applicant at around 1200 hours. He said he asked him where he had been and he said he was in hospital. He asked him for the proof and he said he would obtain a certificate from hospital. The witness stated further that applicant came back at around 3:00 p.m. He testified that it was at this time that he handed applicant annexure “B” which informed him that he had been dismissed for absconding on Thursday 29th August. The letter had been written by Mr Burger in Bloemfontein and faxed to Mr Fourie for delivery to the applicant. It is here where the Court has serious problems with the evidence of Mr Fourie and Mr Burger. If the hearing was held at 10.30 a.m. as alleged, no reason is advanced why the letter was not written dismissing applicant for the misconducts with which he had been charged. Applicant’s absence could not prevent the letter being prepared, or as was the case with annexure “B” being written in Bloemfontein and faxed to Mr Fourie. Furthermore, the details of the sending fascimile machine printed at the top of annexure “B” show that, annexure “B” was transmitted from Fidelity Guards Fax No 051 4327736 on Friday 30th August, 1996 at 0854 hours. The fax number shows that the letter was indeed transmitted from Bloemfontein just six minutes before 9:00 O’clock. The letter dismissing applicant was as it can be seen ready before the alleged time of the hearing. We conclude from these two factors that it is not true that the hearing was held. It is however, true that the applicant was dismissed for the alleged misconduct of absconding. The issue for determination is whether in so doing the respondent acted unfairly as the applicant alleges. Mr Dlamini who appeared for the respondent contended that by absenting himself from work without explanation, the applicant was in breach of his contract and the letter of the dismissal on the grounds of absconding was merely confirming this breach. He contended further that as a matter of fact this Court has not been favoured with an explanation of where applicant was from Monday the 10th of June to Friday the 30th August. He submitted that the medical certificates submitted by the applicant are fake and by applicant’s own admission they were negotiated by him. He concluded by imploring the Court to find that applicant has not explained his absence for the three months. Indeed under cross-examination Mr Dlamini did put it to the applicant that the Court does not know where he was the whole of June and the whole of July, 1996. His response was a simple “it is not necessary”. In our view applicant’s answer was self-defeating, because the reason for his dismissal is that he had absconded. To enable the Court to determine whether he had infact absconded it was necessary that the applicant explained his whereabouts. The little this Court knows about his whereabouts in June is from Sunday 9th to Wednesday 12th June, these being the dates on which Mr Fourie went to see him in hospital. It may safely be assumed that he was in hospital for the whole of that month and part of July because on the 19th July, Mr Fourie went to serve him with notice of disciplinary hearing while he was still in hospital. Thereafter nobody knows where he was. To make it worse, he does not recall when he was discharged or how long he spent in hospital. Applicant did not even make an attempt to call for his hospital records or his Health Book which is kept by him both of which would show dates of his admission and discharge. Applicant was to appear before a disciplinary hearing on the 2nd August, he did not attend. He was again to appear on the 5th August, he still did not attend . No excuse has been given either to the respondent or to this Court why applicant was not able to attend the hearing on those two dates. For the period 20th July to 5th August applicant was not at work for reasons which were never made known to the respondent or to this Court. Even on the 6th he did not explain why he was not coming to work because there is no evidence that he was ever suspended and he had no sick leave to justify his absence. As Mr Fourie said in his evidence it was only in the second week of August, that applicant brought a backdated sick leave certificate. Despite applicant having been at work on the 6th when his disciplinary hearing was postponed, the sick leave certificate claimed he was incapacitated from attending work as it backdated his incapacitation to August 1st, 1996. No explanation accompanied this discrepancy. Even in Court applicant did not attempt to explain it. To add to its clearly controversial nature, the certificate was dated 7th August, 1996. It was, however, delivered to Mr Fourie about a week after that date. Applicant was not helpful on when he handed in this certificate, because he again could not remember. He, however, did not contradict Fourie’s evidence that it was a week after it was allegedly issued. Again, no explanation accompanied this discrepancy. The Court too was not favoured with any explanation why this happened. In the circumstances we agree that applicant’s absence for this period was indeed unexplained. On the 29th August he was supposed to be reporting back to work, this being the date given by his controversial sick leave, as his last day of absence was supposed to be August 28th. He failed to turn up for work. Asked by the Court where he was he said he had gone to hospital as he had an appointment with the Doctor on that day. Asked why he did not tell the employer that despite his sick leave showing his last day of absence as 28th August, he would still be absent on the 29th because of the appointment, his response was a mixture of “I had not been told to resume work and I was still ill.” Significantly, however, no medical certificate was given to the respondent as proof that applicant had a check up to attend. It was only on the 30th that the applicant brought the certificate which was dated 30th August, 1996 but again retrospectively booking him off with effect from the 29th August. Asked why this was so, he had a very lengthy and incoherent explanation, which only went to show that he infact negotiated to be issued with the sick leave as a way of explaining his absence. Indeed it was put to him that he was clearly negotiating the hospital staff to give him sick leave, he agreed. The latest sick leave certificate purported to give him yet another one month of absence due to illness. By the time this latest certificate arrived, the respondent had already decided to terminate him for desertion. Clearly if it had been accepted it would also have had the effect of once again causing the disciplinary hearing to be postponed because applicant would be certified ill. It was Mr Dlamini’s further contention that the sick leave certificates are silent because they do not say what applicant is suffering from. Indeed they do not disclose what applicant’s specific problem which renders him indisposed is. His certificates bear stamps which cannot possibly have any link with granting of sick leave to patients, for instance the Almoner’s office which is the payment office. The other one has three rubber stamps on it. Again the applicant has an incoherent explanation of how this came about. However, all in all one is left in no doubt that the so-called sick leave certificates were not authentic documents. They had been irregularly negotiated and granted by persons other than duly authorised medical officers. This the applicant admitted in his attempt to explain the evident abnormalities of his certificates of illness. It is in the light of the totality of these irregularities that we are of the view that for at least the whole of August the applicant had absconded from work without explanation. The sick leave certificates fail to salvage the applicant as they are not authentic. Applicant was playing a hide and seek game that the respondent could not fairly be expected to condone endlessly. He was trying at all costs to frustrate the holding of the inquiry by absenting himself without explanation only to emerge days or weeks later with concocted certificates of illness. On another occasion he claimed to have not had enough time to prepare despite having had more than two weeks prior notice of the hearing i.e 19th July to 5th August. There was no way that the respondent could give a hearing to a person who was not interested in the same. Neither is there anything preventing respondent from using applicant’s excessive absenteeism as reason for the termination, notwithstanding the pending disciplinary hearing into other acts of misconduct. Such absenteeism is infact reason enough for termination without a hearing. We are of the view therefore, that given the above situation, the respondent did not act unfairly in terminating applicant’s contract. Accordingly this application is dismissed. Costs shall be costs in the suit. THUS DONE AT MASERU THIS 12TH DAY OF JUNE, 1997. L. A LETHOBANE PRESIDENT J. M. KENA MEMBER I AGREE A. T. KOLOBE MEMBER I AGREE FOR APPLICANT : FOR RESPONDENT: IN PERSON MR DLAMINI