The Empact Group (corr), which employed the two, was ordered to reinstate them, with back pay. Picture: File
Kisses and hugs on Christmas Day, during the height of Covid 19, came at a price for two women, both hospitality workers at a hospital, after they were fired.
But the CCMA earlier ruled that their dismissals were substantively unfair. The commissioner ordered reinstatement and back pay.
The Empact Group (corr), which employed the two, was ordered to reinstate them, with back pay.
The company turned to the labour court sitting in Gqebera to overturn the CCMA’s findings.
The workers, only identified as Ms N Manoni and Ms A Cunningham worked at Greenacres Hospital in Gqebera as hostesses, serving food to patients in the wards.
On Christmas Day in 2020, during the height of the Covid pandemic, at the end of their shift they donned Christmas hats, threw caution to the social distancing winds and took pictures of themselves hugging and kissing in a festive spirit.
Unfortunately for them the pictures appeared on WhatsApp and Facebook, and their the employer, upon seeing them, feared reputational harm.
On 6 January 6, 2021, they were dismissed for the non compliance with the Disaster Management Act and the risk that their conduct could lead to the cancellation of the contract between the Empact Group and Netcare Greenacres Hospital.
The company charged them with misconduct, and they faced a disciplinary enquiry.
There was no dispute that they had been trained on Covid protocols, and they admitted guilt. Both asked for a written warning as a sanction. But this was not to be, and they were dismissed.
The employees referred their dispute to the CCMA. Conciliation proved to be unsuccessful and the dispute proceeded to arbitration.
The arbitration commissioner found that their dismissals were procedurally fair, but substantively unfair. The commissioner ordered their reinstatement and the company was ordered to pay them back pay.
The award was made in default as the company did not attend the hearing. Its representative - employed in human resources at the company - emailed the CCMA and employees two days before the arbitration hearing, informing them that his witness was on maternity leave.
He asked that the matter be postponed until she was back.
The matter, however, proceeded in the absence of the company having any representation at the hearing.
The arbitrator reasoned that there had been numerous postponements, the request for the postponement did not comply with the CCMA rules, and he was mindful of the need to resolve labour disputes fairly and quickly.
Unhappy with the finding that it had to reinstate the pair, the company chose to review and set aside the award before the labour court.
Acting Judge D Norton said he is satisfied that the company has demonstrated good cause to reinstate the review. He said there was no reason why the arbitrator could not wait for the witness to return from maternity leave.
The judge said the company did issue a birth certificate, so there was no reason not to believe that its application for the CCMA proceedings to be postponed, was not genuine. He also said that the witness was due back at work in about three weeks time (from the date of the CCMA proceedings), thus there was no need for a long wait before the issues could have been resolved.
“I am also satisfied that the decision of the arbitrator to proceed on an unopposed basis was unreasonable and constitutes a reviewable defect.”
The judge overturned the decision of the arbitrator and ordered that the matter must be decided afresh before a different commissioner.
Pretoria News
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