Man in a 10-year legal battle for reinstatement at Aspen Pharmacare after he was dismissed for late coming

A man who was dismissed for late coming has been embroiled in a decade long legal battle in an effort to regain his employment.

Ndumiso Tabata was dismissed from Aspen Pharmacare Ltd after nearly two years of employment. During this period, he received over five written warnings, including a final warning, for infractions related to time and attendance.

Tabata was eventually dismissed in December 2014 after arriving late for duty.

He referred a dispute to the National Bargaining Council for the Chemical Industry, and in October 2015, it was ruled that he had been unfairly dismissed and ordered his reinstatement.

The following month, the pharmaceutical company filed a review application to set aside the award and also filed a bond of security.

Complications that contributed to the delays started in December 2015 when the bargaining council provided an incomplete record of the arbitration proceedings, notably omitting necessary audio recordings from the hearing.

This incomplete record set off a chain reaction of legal hurdles. By March 2016, Aspen was communicating with Tabata’s union, the Chemical, Energy, Paper, Printing, Wood and Allied Workers' Union (CEPPWAWU), outlining the failure of the bargaining council to supply a complete record.

The union asserted that Aspen was responsible for ensuring completeness and accuracy in the judicial documentation since they initiated the review application.

In April 2016, the bargaining council provided the audio disc to the registrar who subsequently forwarded it to Aspen in May.

Once again, Aspen found that the audio disc was not complete. The issue was scheduled for a reconstruction of the record at the bargaining council. However, this effort did not succeed.

In May 2017, the registrar notified the parties that she had received what seemed to be the missing audio disc. This disc was only supplied to Aspen in August 2018, after it had been lost during the Labour Court's relocation to new facilities.

It was only in September 2018 that Aspen managed to bring a review application after getting hold of the complete transcribed record.

However, in November 2018, CEPPWAWU addressed a letter to Aspen informing them that the review application lapsed in August 2017, which was 60 court days after the audio disc had been made available in May 2017.

The union argued Aspen should have acted with more diligence and expedition when it came to accessing and transcribing the final disc and demanded the company to comply with the arbitration award and reinstate Tabata.

After a year, in January 2019, CEPPWAWU took initiative by filing to have the arbitration award made an order of court, but Aspen responded with its own bid to reinstate the review application, citing record-keeping challenges as a primary obstacle.

The registrar enrolled both applications to be heard on April 30, 2019. When the date came, the Labour Court ordered that the applications be heard simultaneously on a future date.

Growing impatient, in October 2019, Tabata through his union, sent a letter to the registrar advising that the two applications were ripe for hearing and requesting that they be set down on the opposed motion roll.

However, due to an error at the registrar’s office, the applications were not set down for a hearing. Neither party bothered to follow up with the registrar for more than four years. Six years later, both applications are still pending.

The case was reactivated in December 2023 when the union, without notifying Aspen, instructed the sheriff to attach goods to enforce the backpay portion of a reinstatement order. In February 2024, the sheriff went to Aspen's premises to execute the award, listing three of Aspen’s cars on the inventory.

This led to extensive communication between the legal teams, ultimately resulting in Aspen reissuing a security bond and offering Tabata with 24 months of remuneration.

A few days later, Aspen stated that should CEPPWAWU fail to furnish it with a commitment to refrain from enforcing the award within three days, it would seek to approach the court urgently.

Without any reply, Aspen initiated a case at the Labour Court, where the sheriff was barred from seizing Aspen's assets until the two outstanding applications were heard.

Disenchanted, CEPPWAWU submitted an application to the Labour Appeal Court in Johannesburg, contending that Aspen's review application had expired and that the issuance of a new security bond was irrelevant.

However, the appeal court found that CEPPWAWU's challenge to the security bond was based on a limited and unsubstantiated denial in the answering affidavit. It was further added that the security bond issued in February 2024 was for the correct amount, a point which was not disputed by the union.

The appeal court upheld the previous ruling made by the Labour Court. The judge also mentioned the "appalling delays" in resolving the matter.

"The arbitration award that is the subject of the review application was issued almost 10 years ago, and the dispute over the reasonableness of that award is nowhere close to resolution. This is a state of affairs entirely inconsistent with the statutory goals of expeditious and efficient dispute resolution," said the judge.

The appeal was dismissed.

sinenhlanhla.masilela@iol.co.za

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