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[2001] ZALCJHB 8
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Shoprite Checkers v CCMA and Others (JR421/01) [2001] ZALCJHB 8 (31 May 2001)
[COMMENT1]
Sneller
Verbatim/JduP
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR421/01
2002.05.31
In the matter between
SHOPRITE
CHECKERS Applicant
and
CCMA AND
OTHERS Respondents
J
U D G M E N T
NGCAMU,
A.J:
The applicant in this
matter seeks to review and set aside the arbitration award made by
the second respondent. The third and fourth
respondents are opposing
the review. The fourth respondent was dismissed by the applicant
after she had been found guilty of misconduct.
After the conciliation
had failed, the dispute was arbitrated. The commissioner made an
order reinstating the fourth respondent.
For the purposes of this
judgment the fourth respondent will be referred to as "Nkosi".
The applicant filed an
application for review within the six-week period provided in the
Labour Relations Act. It however failed
to file a rule 7A(8) notice.
The applicant seeks to have the failure to file the notice condoned.
The rule 7A(8) notice is
four months late. The explanation given is that the applicant was of
the view that the notice had been
filed and served on or about 10
October 2001, together with a transcript of the record. It was
submitted that this was a
bona fide
error. The error was only
noticed when the third and fourth respondents filed an application in
terms of section 158(1)(c) of the
Labour Relations Act, dated 3
January 2002. Steps were then taken to serve the rule 7A(8) notice.
The respondents have
submitted that the application for condonation is defective in that
the condonation application is filed simultaneously
with an
application of the matter to be condoned. The submission by the
respondents is that the application was only filed after
a point
in
limine
had been raised.
The submission raised by
the respondents has no merit. There is no rule of law preventing the
filing of an application for condonation
after a point
in limine
had been raised. This point cannot stand. The applicant is entitled
to apply for condonation as soon as it become clear that there
is a
need for such an application. This has to be done within a reasonable
time. The period of delay in filing of the notice is
not
insignificant. The court, in considering the application for
condonation, must take into account certain factors which have
been
recognised by this court. (See
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A); and
Gilbey Distillers & Vintners (Pty)
Ltd v Shinga
(case number DA14/98 (1999) LAC).
The court has to look at:
1.
the degree of lateness;
2.
the explanation therefor;
3.
the prospects of success;
4.
the importance of the case; and
5.
the prejudice to the opposing party.
It is common cause that
the transcript record was filed and served. What remained was the
filing of the rule 7A(8) notice. The applicant
submits that it has
prospects of success in the review application. This is denied by the
respondents.
Having considered the
contentions of both parties I am satisfied that the prospects of
success are evenly balanced in respect of
both parties. I have come
to this conclusion based on the submissions made by both parties.
The fourth respondent was
dismissed on account of dishonesty. The case is important for both
parties. The applicant cannot keep
an employee who cannot be trusted.
On the other hand, the fourth respondent should not be unfairly
dismissed. All the requirements
for the review have been complied
with. The review application is set down together with the
application for condonation. The application
in terms of section
158(1)(c) is also before court. In my view there will be no prejudice
to the respondents.
The practitioners often
omit to file rule 7A(8) notice. The notice is normally filed
immediately or together with the filing of
the transcript record. The
purpose of the notice is to indicate that there is no change in the
previous grounds of review set out
in the founding affidavit. If the
notice is not filed, the review application is defective. The purpose
of the application for
condonation is to correct the defect.
I accept the explanation
given by the applicant in that the failure to file the notice was a
bona fide
error. The application for condonation is
accordingly granted.
Miss Nkosi was dismissed
after she had been found guilty of fraudulently abusing the clock-in
system, the effect of which was that
she was paid while she was not
at work, or absent from her work station without authorisation. The
commissioner reinstated Miss
Nkosi after the arbitration hearing.
The applicant has set out
several grounds of review. The applicant has submitted that the
commissioner unjustifiably found that
the dismissal was procedurally
unfair. The commissioner set out in the award the issue to be
determined. He recorded that the issue
to be determined was whether
the reason for the dismissal was a fair reason. He further recorded
that the procedure was not in
dispute. The effect of this is that the
commissioner was only limited to the question of substantive fairness
of the dismissal.
In his analysis of the evidence he pointed out that
the "procedure was not in dispute". Notwithstanding this,
the commissioner
proceeded to deal with the procedural aspect of the
dispute, and finds that:
"I believe that the
procedure followed during the disciplinary hearing was defective in
that witness (1) chaired the inquiry
... it is crystal clear that
witness (1) testimony confirmed his involvement in this from the
onset. He testified to have seen
the applicant return from the
college. It is my opinion that the chairperson of the disciplinary
hearing, and also as witness (1),
in this matter was not neutral."
Witness "(1)"
in the proceedings was Nieuwoudt.
On the point of
procedural unfairness no evidence was led. The commission did not
indicate to the parties that he was going to base
his decision also
on procedural unfairness. The result is that the parties were not
given an opportunity to lead evidence or to
address the commissioner
on this point. The commissioner based his decision on a point in
respect of which there was no evidence.
The commissioner relied on
evidence that had not been placed before him. The award can be set
aside if the commissioner relied
on evidence not placed before him.
(See
Pep Stores (Pty) Ltd v Laka NO and Others
(1998) 9 BLLR
952
(LC).
The award can also be set
aside if the commissioner makes a finding on the issues not before
him, on the basis that he has exceeded
his powers. The commissioner's
findings that the disciplinary hearing was chaired by Nieuwoudt was
unjustified in that the disciplinary
hearing was chaired by
Kleynhans. No evidence was led before the commissioner to justify the
conclusion that Nieuwoudt chaired
the disciplinary hearing. This is a
mistake by the commissioner, which led to the conclusion that the
dismissal was procedurally
unfair. If the mistake is so gross that it
prevented the party from having the case, it amounts to a misconduct.
(See
Abdull and Another v Cloete NO and Others
(1998) 3 BLLR
264
(LC);
Gold Fields Investments Ltd and Another v City Council
of Johannesburg and Another
1938 TPD 551).
Mr Kotze for the
respondent did not address fully on the issue of procedural
unfairness. He merely submitted that the commissioner
admitted that
the procedure was not in dispute.
After considering the
matter, I am of the view that the commissioner committed a gross
mistake in finding procedural unfairness
on the basis that Nieuwoudt
chaired the hearing when he did not. This mistake amounts to a
misconduct on the part of the commissioner.
The commissioner also
committed an irregularity and exceeded his powers by making a finding
on procedural unfairness when this
was not an issue before him. This
makes the award reviewable. It shows that the commissioner did not
apply his mind properly and
did not appreciate his duties. The award
can be reviewed on this ground alone.
It was submitted by Miss
Linston for the applicant that the commissioner committed a gross
irregularity in finding that Nkosi had
authorisation for the manner
in which she studied. Nkosi gave evidence that she was given
authority by Muller. Nieuwoudt merely
denied that the applicant was
given authority. The applicant did not give evidence that indeed
Muller did not give any authority.
Muller, who was alleged to have
given authority, never testified. Nkosi's evidence on this point
stood unchallenged.
The applicant relies on
improbabilities in Nkosi's version in that she did not dispute that
she told Nieuwoudt she was studying
at the back of the delicatessen.
She also did not tell Nieuwoudt that there was an agreement with
Muller. The applicant submitted
that the commissioner was faced with
two conflicting versions. The applicant has submitted further that
Nkosi failed to submit
proof that an agreement existed.
This argument does not
have merit. Nkosi did not testify that the agreement was in any
written form. The applicant's witness did
not have any personal
knowledge of the authorisation that Nkosi had obtained from Muller.
The denial by the applicant's witness
of the existence of the
agreement does not in any way show that Muller did not authorise
Nkosi to attend classes. The commissioner
applied his mind on this
point. The commissioner went further to say that the testimony of
Nkosi could not be convincingly challenged.
The issue was whether the
previous manager gave authorisation. It was for the applicant to call
Mr Muller to deny the authorisation.
There was no evidence placed
before the commissioner to challenge the authorisation. The witnesses
for the applicant who gave evidence
are not aware of such
authorisation, and therefore could not challenge it. The commissioner
applied his mind to the question of
the agreement. It was upon the
applicant to submit evidence in rebuttal. It failed to do this. This
could have been done by calling
Muller to testify. On the evidence
before the commissioner the version of Nkosi, regarding the
agreement, stood unchallenged.
Miss Kleynhans, when
questioned by the commissioner, could not dispute that Nkosi had
authorisation. On page 109, line 20 of the
record, she stated:
"
Ja (indistinct) so surely she must have got his authorisation to
attend these classes."
The commissioner was
criticised for finding that the applicant was unable to produce
evidence to prove that Nkosi had left the store
on 17 August 2000 at
approximately 14:05 and returned approximately at 16:07. The
commissioner's findings on this point was based
on the fact that the
video was never produced. Nieuwoudt gave evidence on what he alone
had viewed.
It is correct that Nkosi
did not challenge Nieuwoudt's evidence on this. The commissioner
applied his mind to the evidence of Nieuwoudt
but did not accept it.
The commissioner is not required to comment on each aspect of the
evidence.
In my view the applicant
was not prejudiced in any way. I say so because the gist of Nkosi's
case is that she had authority from
Muller to leave without clocking
out. For that reason it does not matter if she returned at 16:00 or a
few minutes thereafter.
The fact that the time of departure and
return was not challenged cannot be said to mean that Nkosi had no
authorisation.
The commissioner has also
been criticised for not disclosing that he had previously been
involved as an official of the South African
Commercial Catering and
Allied Workers' Union. This submission has no basis. The commissioner
is not required to disclose his past
activities during the
arbitration. Nkosi was not a member of the South African Commercial
Catering and Allied Workers' Union, but
of Retail and Allied Workers'
Union. The commissioner's past involvement with this union
cannot make the reward reviewable.
These submissions are accordingly
rejected.
I must also point out
that I am not satisfied with the transcript record filed in this
matter. In many instances the evidence is
recorded as "indistinct",
making it difficult to know what the response was.
After considering the
matter as a whole I have come to the conclusion that the award is to
be reviewed and set aside. I have decided
to do so for the reason
that the commissioner exceeded his powers in deciding an issue of
procedural fairness which was not before
him. The second reason is
that the record is so poor that crucial evidence does not appear from
the transcript as a result of poor
recording.
In the circumstances it
would be fair to refer the matter back to the first respondent to be
dealt with by another commissioner.
I have decided not to make any
order for costs. I have done so because I have found that some of the
complaints by the applicant
had no merit. Had the commissioner
confined himself to the issues before him, and the record clear, I
would not have interfered
with the award.
O
R D E R
The order I make is
accordingly the following:
(a)
The arbitration award is reviewed and set aside.
(b)
The matter is remitted to the first respondent, to be arbitrated by
another commissioner.
(c)
There is no order for costs.
ON BEHALF OF THE
APPLICANT:
ADV LINSTON
ON
BEHALF OF THE RESPONDENTS:
ADV KOTZE
[COMMENT1]
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