South African Airways (SAA) has successfully overturned a ruling from the Commission for Conciliation, Mediation and Arbitration (CCMA) that reinstated a former employee following his dismissal for disobedience.

Regg Mashigo’s tenure with SAA began in 2011 as union representative, but by August 2012, he found himself in the contentious position of having to report to a lower-ranking colleague, Darrin Peters when he was deployed into the airport’s operations.

Mashigo refused to report to Peters and his refusal to comply with this directive led to a reassignment, allowing him to report to Lwazi Mathivha instead. 

However, issues arose when Mashigo was noted absent from work for significant periods from September 2012 to March 2013, prompting multiple charges related to unauthorised absences.

He faced further charges of disobedience related to events that transpired in March and April 2013, during which he neglected to follow standard protocols by not obtaining permission for absence from his workstation, and also failed to comply with a legitimate directive from Mathivha.

During the internal disciplinary investigation, he was found not guilty of taking a three-day leave in December 2012 and March 2013, as well as the accusation concerning his promotion of objectives of an unrecognised union.

Due to the guilty verdict concerning the outstanding charges, he was later dismissed in 2013, and he subsequently referred the matter to the CCMA.

At the CCMA, it was noted that Mashigo had obtained permission for absence from Peters, despite his initial refusal to report to him. Mathivha was on leave and Mashigo had to temporarily report to Mlangeni.

Mashigo also submitted timesheets that were approved by Peters, and in doing so, the commissioner stated that Peters was representing SAA. Hence the company compensated Mashigo even for days when he was absent.

However, when Mathivha returned from sick leave, she reversed the days and instructed that the money equal to the days taken, be deducted from Mashigo’s salary. The commissioner determined that this approach resulted in Mashigo being punished for an error committed by Peters and Mlangeni.

The commissioner criticised SAA for not having taken disciplinary action against Peters or Mlangeni. It was concluded that Mashigo was used as a sacrificial lamb for the gross negligence of Peters who permitted Mashigo’s absence from work. 

Consequently, the CCMA awarded Mashigo with a reinstatement alongside back pay amounting to over R286,000, a decision which prompted SAA to escalate the matter to the Labour Court in Johannesburg.

Acting judge Hedda Schensema presided over the appeal and delivered a scathing critique against CCMA’s findings. She condemned the commissioner for disregarding evidence that Mashigo was cognisant of the procedure necessary to secure authorization for absence, and yet he contacted Peters despite Peters lacking the authority to grant him permission.

Moreover, the judge stated that Mashigo had declined to report to Peters, and Peters also testified that he was not authorised to approve the time sheets. Consequently, there was no basis for the commissioner to regard Mashigo’s evidence as more credible.

In addition, judge Schensema said the commissioner’s conclusion that the dismissal was unfair merely because Peters and Mlangeni were not also charged, was unsupported by the evidence.

“Mashigo’s credibility was compromised by his contradictory defence: On the one hand, he claimed to have refused to report to Peters, and on the other, relied on Peters’ authority to justify his absences. As a result, the award must be set aside,” said the judge.

sinenhlanhla.masilela@iol.co.za

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