GATW8528-19 Isaac Milanzi
3rd February 2020
In the CONCILIATION between (Union/Applicant)
Ms. Sarjo Kekuta Sissohare
c/o Jansen and Jansen Inc. P.O. Box 14458
012 348 0450
012 348 0763 [email protected]
High Commission of the Republic of Gambia
261 Middle Street Brookfield Office Park Pretoria
012 040 0374
Case Number: Commissioner: Date of Award:
Sarjo Kekuta Sissohare
High Commission of the Republic of Gambia
Telephone: Telefax: E-mail:
Telephone: Telefax: E-mail:
BACKGROUND TO THE ISSUE
 The applicant was in the employ of the respondent for period of about three years as a Private Secretary. The applicant was allegedly unfairly dismissed on the 29th of April 2019. The applicant on the 29th of May 2019 declared a dispute at the CCMA in Tshwane alleging a substantively and procedurally unfair dismissal. The relief sought by the applicant is reinstatement for what she considered an unfair dismissal.
 The respondent is a foreign mission situated at 261 Middle Street, Brookfield Office Park, Pretoria. In terms of the various Vienna and United Nations Conventions, which have been post or incorporated into South African domestic law by virtue of the provisions of Section 2(1) of the Diplomatic Immunities Act 87 of 1981, mission and diplomatic representatives enjoy immunity and inviolability.
 I must advise the parties on a path forward after the parties failed to reach a settlement agreement at conciliation. It must be noted that conciliation is an informal process and held on a without prejudice basis.
SURVEY OF INFORMAL SUBMISSIONS
 The applicant submitted that in January 2019 she fell ill whilst at work and was admitted to hospital and a doctor issued her with a medical certificate recommending that she be booked off for a period of three months. She submitted it to the respondent. On/or about the 27th of February 2019 while on sick leave, she was called to a meeting at the respondent’s premises where she was told that she was entitled to two weeks sick leave and that her three months sick leave was not approved.
 On/or about the 4th of April 2019 she returned to work from sick and she discovered that she was locked out of her computer, She was later escorted out of the respondent’s premises. On/or about the 8th of April 2019 she received a notice to attend a disciplinary hearing scheduled for the 24th of April 2019. She was charged for bringing the respondent into disrepute; dereliction of duty; unauthorized absence; and failure/refusal to inform the respondent about her whereabouts.
 The dismissal was procedurally unfair in that was notified to attend the disciplinary hearing while whilst she was on sick leave and the chairperson of the disciplinary hearing was biased in that he did not consider the medical certificate. The dismissal was substantively unfair in that the charges in that they lacked substance and were proffered in order to terminate her employment. She seeks to be reinstated.
 The respondent submitted through its representative and note verbale that the charges were proffered against the employee after she failed to attend work for approximately three months and for publishing defamatory remarks on public platforms. The defamatory remarks were unfounded and malicious and undermined the relations between the respondent and the Republic of South Africa.
 The applicant was afforded a fair opportunity to present her case on the 28th of March 2019 and it was postponed to the 24th of April 2019 due to the absence of the applicant.
ANALYSIS OF SUBMISSIONS
 If dismissal is common cause between the parties, the onus rests with the employer in terms of section 192 (20 of the Labour Relations Act to prove on a preponderance of probabilities that the dismissal of the employee was for a fair reason related to the employee’s conduct or capacity or was based on the operational requirements of the employer and that the dismissal was effected in accordance with a fair procedure.
 The dispute arose in South Africa in the areas of jurisdiction of the Commission. The employer party to the dispute is a foreign mission which enjoys diplomatic immunity and inviolability, what it actually means is that South African domestic law would not apply to such entities.
 In terms of section 23 of the Constitution of the Republic of South Africa, Actv106 of 1996 (as amended), everyone has a right to fair labour practices. Fair labour practice includes the right not to be unfairly dismissed. It is a right which the employees are entitled to enforce even if it may be against the government, there is no immunity but however as a member and signatory to several Vienna Conventions and United Nations treaties, we are also obliged to observe the international law and respect it.
 The test for fairness is entrenched in section 188 of the Labour Relations Act. The Act provides that a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for the dismissal was for a fair reason related to the employee’s conduct or capacity or was based on the operational requirements of the employer and that that the dismissal was effected in accordance with a fair procedure.
 “There can be no question that the ultimate test that a Commissioner must apply is one of fairness. The test is foreshadowed both in Section 23 of the Constitution and Section 188 of the LRA………”
 The law seems to recognize misconduct as a valid ground to justify the dismissal of an employee. However, like all the offences, it must be proven on a balance of probabilities. It will not be sufficient to make bold allegations against an employee without any concrete and verifiable incidents. There must always be evidence to back-up allegations of
misconduct. In this matter the employee was charged for gross negligence (sleeping on duty). It seems that the respondent in this matter had a valid ground to take disciplinary action against the employee.
 Indeed an employer an employee should treat each other with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.
 An employee has the right not to be unfairly dismissed. The test for fairness is a two-thronged process. Even if a valid and fair reason may be found for the dismissal, it is also required that the dismissal must be effected in accordance with a fair procedure. Even if a valid and fair reason may be found for the dismissal, it is also required that the dismissal must be effected in accordance with a fair procedure. The applicant stated in his submission that the dismissal was procedurally unfair in that the chairperson of the disciplinary hearing was biased. The employee bears the onus to prove that the chairperson of the disciplinary hearing was indeed biased.
 This is an Advisory Award issued for the sake of advice and fairness to both path parties and in terms of which the Commission would recommend as follows:
(a) The applicant party is advised to write to the respondent proposing a meeting in order to discuss and resolve the matter;
(b) The respondent is advised to respond and agree to meet the trade union within fourteen (14) days upon receipt of the applicant party’s letter.
 The parties are further advised to seek the assistance of the CCMA to facilitate that meeting in order to reach an agreement in resolving the dispute.
 If the parties do not agree with this advisory award, they must inform the Commission to issue a certificate of outcome stating that the matter is unresolved.
 I make no order as to costs.
CCMA COMMISSIONER: (Isaac Milanzi)