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[2001] ZALCJHB 10
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Saunders v Edenvale and Others (JR254/01) [2001] ZALCJHB 10 (18 October 2001)
[COMMENT1]
Sneller
Verbatim/HVDM
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR254/01
2001-10-18
In the matter between
ROBERT ALAN
SAUNDERS Applicant
and
ARNOLD
CHATZ EDENVALE &
OTHERS Respondent
J
U D G M E N T
LANDMAN
J
:
This
is an application brought by Robert Alan Saunders against Arnold
Chatz Edenvale as the first respondent, the Dispute Resolution
Centre
of the Motor Industry Bargaining Counsel, the second respondent, and
Commissioner Russel Moletsani the third respondent.
On 21 December 2001,
an arbitration award was made by the commissioner in respect of a
dispute between the applicant and Arnold
Chatz Edenvale. The
commissioner upheld the dismissal of the applicant on 21 June
2000.
The applicant was
dissatisfied with this award and he seeks to review and set it aside
in this court. He submits that the
commissioner, in arriving in
his findings, exceeded his powers and did not apply his mind to the
proceedings. This is said
inter alia
in regard to
schedule 8 of the Labour Relations Act, being the code of good
practice. Item 9 provides that:
"Any person
determining whether a dismissal for poor work performance is unfair
should consider -
(a)
whether or not the employee failed to meet and performance standard,
and
(b)
if an employee did not meet the required performance standard,
whether or not
(i)
the employee was aware or could reasonably be expected to have been
aware of the required
performance standard, and
(ii)
the employee was given a fair opportunity to meet the required
performance standard, and
(iii)
dismissal was an appropriate sanction for not meeting the required
standard."
The heads of argument set
out in detail the items of evidence which the commissioner is alleged
to have ignored or downplayed. It
was submitted that this shows that
the commissioner did not apply his mind to the evidence and that this
constitutes a gross irregularity.
I have examined the
record, the award and the heads of argument. Some of the points
relied upon are immaterial to the proper
decision of the
commissioner. Other points have been considered by the
commissioner in the sense that they are consistent
with his finding.
This points to their having been considered and disregarded in
arriving at his final conclusion.
Other alleged failings simply
amount to an attempt to appeal the award. This, of course, is not
permissible.
It is alleged that the
commissioner erred in finding that it was suggested to the applicant
that he should consider accepting the
position of either a service
advisor or a technician. It was submitted that there is no
foundation for this in the record.
During October 1999 the employer
offered the applicant an alternative position. One which was
more suited to his technical
talents and to his apparent lack of
administrative skill. He did not accept this. There is no
indication of why it
was not accepted. The commissioner noted
this to be the case.
I am disturbed about the
portion of the evidence (which appears on page 45 of the record).
Mr Coetzer is asked:
"Why was it
necessary in the circumstances, Mr Coetzer, to terminate the
applicant's services after this inquiry had concluded?
Mr Saunders, after the inquiry was held changed his whole attitude
towards the business. He threw
stuff around in the workshop.
It was brought to my attention and I just felt that the relationship
of trust had been broken
and we decided to terminate his services.
And that was based on the
chairperson's recommendation? Correct.
Did you consider that
recommendation carefully? Yes, we
did."
I am not able to evaluate
this remark. It was not pursued in cross examination. The
bundle of documents including the
chairperson's recommendation has
not been placed before me. It may be as stated by Mr Coetzer
that the dismissal took
place on the basis of the recommendation.
Certainly nothing appears to have been made of this.
The commissioner’s
finding that the sanction of dismissal wa fair is justifiable, having
regard to the applicant's refusal
to consider accepting a more
suitable position the previous year; his inability to function as a
service manager and the absence,
at the time of his dismissal, of a
suitable alternative position.
In
the circumstances therefore the application to review and set aside
the award is dismissed.
__________________
A
A Landman
Judge
of the Labour Court of South Africa
---oOo---
[COMMENT1]
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