About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2001
>>
[2001] ZALCJHB 14
|
|
Mdluli v Commission for Conciliation Mediation And Arbitration and Others (JR30/01) [2001] ZALCJHB 14 (26 October 2001)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
BRAAMFONTEIN
CASE
NO:JR30/01
In
the matter between:
PATRICIA
MDLULI
APPLICANT
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
1
ST
RESPONDENT
GRANT
SHEEN
2
ND
RESPONDENT
PICK
‘n PAY [SHERWOOD]
3
RD
RESPONDENT
JUDGMENT
PILLAY
A. J
INTRODUCTION
[1]
This is a matter that was referred to arbitration under the
Commission for Conciliation, Mediation and Arbitration (CCMA) for
a
decision regarding the dismissal of the Applicant by the third
Respondent.
[2]
The decision of the arbitrator confirmed the dismissal as being
procedurally
2
and
substantively fair. It is this decision that is being brought on
review.
[3]
It is common cause that the Applicant was employed by the third
Respondent. On the 10 July 1999, the Applicant, who was employed
as a
till packer, was asked to clean the floor in the absence of
the person who normally did so. She refused to do
so. At the
time other employees also refused to clean the floor that day.
[4]
This resulted in disciplinary proceedings being instituted against
them and at which they were assisted by the National Entitled
Workers
Union
(NEWU)
of which they were members. The Applicant also had a written warning
that was still “in operation” at the time
of the
disciplinary hearing. This warning was a confirmed matter as no
appeal against it was launched and was also in respect
of
‘insubordination’. It was issued on the 10/06/1999 and
seems to be the distinguishing feature in the treatment of
the
Applicant as opposed to her erstwhile colleagues who were
not dismissed but received warnings.
3
[5]
This very matter which gave rise to the warning issued on the
10/06/1999 was raised at the arbitration hearing. It seems that
it
concerned an instruction to the Applicant to go and fill paraffin
bottles in the store room. She went missing for quite a time
. Mrs
Stavastis then went to look for her in the storeroom and discovered
her having a cup of tea at a table. ( See page 148 at
line 13 et. of
the record).
[6]
She was given a final written warning. On page 178 at line 15 etc. of
the record, Mrs Stavastis, who clearly instituted the
complaint
concedes that it was not based on insubordination. Apart from the
other technical matter raised in regard hereto , it
is obvious that
the misconduct on that occasion was not regarded as misconduct based
on insubordination, if the instruction to
fill the paraffin bottles
was indeed given.
[7]
There also seems to be serious doubt as to whether the
Applicant defied an instruction because the evidence that such
an
instruction was given to her is suspect.( Record p175 at line 5 ).
However, even assuming that it was given there is also serious
doubt
as to what the warning was for and whether it was properly issued to
her.(Record p176 lines 5-25 ).
[8]
It is clear that the Applicant did not refuse to carry out an
instruction.
4
(Record
p179 at lines 5-25) and that she did fill the bottles of paraffin.
[9]
Furthermore, there is no clear evidence as to whether the Applicant
had completed filling the bottles of paraffin by the time
she was
discovered having tea in the canteen or whether she continued to do
so after having tea.
[10]
In any event it is not clear and certain that the finding in that
case of misconduct for insubordination, if that it is in
fact the
position, was the correct one and it is doubtful that it is in
the circumstances , given the concessions referred
to above and
made by those who testified at the arbitration hearing on behalf of
the Third Respondent.
[11]
In considering this review, it does not seem fair that a questionable
warning, even if it is technical, should have carried
so much weight,
if at all.
[12]
In the circumstances where there has been an obvious error or an
issue is doubtful and where it leads to an obvious injustice,
its
relevance must be approached very carefully.
[13]
If it was obviously wrong or appears to be so, as in this
matter, then it ought to be disregarded in so far as it plays
a role
in the considerations of a subsequent matter.
[14]
Consequently, the relevance of that warning in considering a sanction
which affected the Applicant in this becomes doubtful.
5
[15]
Because of all the uncertainty of the previous final warning and its
relevance, it cannot be regarded as a matter that should
be
considered as a factor in assessing an appropriate sanction in this
matter.
[16]
The others who were also disciplined in that matter all received
warning. It is not certain what kind of warning they received.
[17]
Consequently, the Applicant should have been treated the same as the
others. The reliance by the arbitrator on such a factor
to confirm
the dismissal is an irregularity and the dismissal falls to be set
aside.
[18]
All the Respondents indicated that they were not opposing the review
save in so far as it related to costs. In any event ,
there was no
appearance for any of them. It seems to me that the costs must follow
the result. To the extent that the Third Respondent
is really at the
root of the issues and not the first or second Respondents, I do not
make a cost order against the first or second
Respondents.
In
the result, I make the following order :-
(a)
The dismissal of the Applicant is set aside and the sanction is
substituted with a warning as was issued
to the others so dealt with
as a result of this
6
incident;
(b)
The Applicant is hereby reinstated to the position she held as at the
22
nd
July 1999;
(c)
The Third Respondent is ordered to pay an amount equal to 12 months’
salary at the rate of her
monthly remuneration less deductions;
(d)
The Third Respondent is ordered to place the Applicant in the same
position in respect of her
remuneration that she would have been at
the Third Respondent’s concern, had she not been so dismissed.
(e)
The Third Respondent is ordered to pay the costs of this application.
Dated
at Johannesburg on this the 26
th
October 2001.
_____________
PILLAY
A.J
ACTING
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA