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[2001] ZALCJHB 13
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Moodley v Bargaining Council for the Restaurant Catering Allied Trades and Others (JR74/01) [2001] ZALCJHB 13 (18 October 2001)
[COMMENT1]
Sneller
Verbatim/JduP
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR74/01
2001.10.18
In
the matter between
L
D J
MOODLEY Applicant
and
THE
BARGAINING COUNCIL FOR THE
RESTAURANT
CATERING ALLIED TRADES
First
Respondent
E
S
HUTCHINSON Second
Respondent
BAR
SUPPORT SERVICES
Third
Respondent
J
U D G M E N T
EX
TEMPORE
REVELAS,
J
:
1.
This is an application in terms of section 145 of the Labour
Relations Act, 66 of 1995 ("the
Act"), to review and set
aside an award made in favour of the third respondent by the second
respondent, a commissioner appointed
by the first respondent.
2.
The applicant was dismissed by the third respondent on 7 January 2000
following a disciplinary
inquiry into certain misconduct of the
applicant relating to alleged drunken behaviour, albeit off duty. The
applicant was employed
by the third respondent as a manager.
3.
The only grounds for review relied upon by the applicant in his
papers read as follows:
"
I am not
satisfied with the outcome of the arbitration award. The company and
the Bargaining Council was [
sic
] not acting
fully in their rights of the
Labour Relations Act concerning
a
dispute. No fair procedures was [
sic
] followed
during my hearings. I should also have considered my case to be
arbitrated by the same commissioner as the Bargaining
Council. A
private (part-time) arbitrator was appointed. It clearly indicates
[
sic
] that the commissioner did not consider any
matters I raised. The Bargaining Council dismissed my case and award
me nothing. Allegations
against me were made up and I was dismissed
unfairly. It seems that there was some corruptions [
sic
]
and the code of conduct was not applied.
"
4.
The applicant provided no further detail in support of his grounds of
review. The sparseness of
appropriate allegations in his affidavit
was pointed out to the applicant by the third respondent's legal
representatives in two
affidavits filed by the third respondent at
various stages. The applicant failed to respond to these indications
of a lack of particularity
on his part.
5.
The applicant also did not put forward a record of the arbitration
proceedings.
6.
The third respondent's view on affording the applicant a further
opportunity to rectify his papers,
was to the effect that the
applicant had several opportunities to rectify or supplement his
papers, and furthermore that the applicant
could not amend his case
on the record, after the respondent had already opposed the matter in
response to the allegations made
by the applicant in his applications
before me.
7.
In this regard I was referred to the matter of
Skjelbreds Rederi
and Others v Hartleys
1982 (2) SA 739
(W), at 742C per Vermooten
J.
8.
The arbitrator summarised the evidence led at the arbitration as
follows:
A
The applicant was the
sole representative and witness for his case. He
called no further witnesses in support
of his case. A Miss Dorasamy
presented evidence on the appropriateness of the sanction applied,
being dismissal. A Mr Ncgobo testified
as to the alleged acts of
misconduct, such as acting in a loud manner unbefitting of a manager,
making a nuisance, interrupting
the service flow, swearing and being
under the influence of liquor. Mr Ncgobo's evidence was supported by
the evidence of Mr Joubert,
who confirmed that the applicant was
under the influence of alcohol, aggressive, used bad language, and
that the employment relationship
between the parties had broken
down.
@
9.
The arbitrator in effect made a credibility finding by accepting that
cross-examination by the
applicant did not materially challenge the
evidence led by Mr Ncgobo and Mr Joubert. He also found that
the two persons concerned
were credible witnesses. The applicant's
behaviour, as explained on the day in question, was held to be
unbecoming and reprehensible
in the extreme. AThe minutes of the
disciplinary inquiry were accepted and indicated, in the view of the
arbitrator, and found
that the third respondent had followed fair
procedure in dismissing the applicant from its employ.@
10.
A proper reading of the award, and the grounds of review, leads me to
come to the conclusion that there is
no basis upon which I can
interfere with the findings and conclusion of the arbitrator. On the
face of it, the conclusion seems
to be a reasonable one, and not
disconnected to the evidence placed before the arbitrator which, even
though there is no record
before me, some reference to such evidence
is made in the award itself. Furthermore, the applicant himself has
illustrated the
gist of his complaint against the award, and that is
that he feels that the sanction of dismissal is too harsh. I have
explained
to the applicant that this is a review application and not
an appeal.
11.
The arbitrator held that dismissal is an appropriate sanction for the
offence. Whether or not I am of the
opinion that the dismissal was
too harsh in the circumstances is of no consequence.
12.
In the circumstances the application is dismissed. There is no reason
why the applicant should not pay the
costs of this application. He
had launched an application with no merit, causing the third
respondent to incur the expense of opposing
the matter. Despite being
referred to the deficiencies in his case, he still proceeded
therewith, without rectifying matters. Furthermore,
serious
allegations of corruption were levelled against the respondents.
13.
In the circumstances the applicant is to pay the third respondent's
costs.
O
R D E R
The
application is dismissed with costs.
ON
BEHALF OF THE APPLICANT:
(In person)
ON
BEHALF OF THE THIRD RESPONDENT: MR M SCHOTTLER
Of Brink, Cohen, Le Roux
and Roodt.
________________
E.
Revelas
[COMMENT1]
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