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[2001] ZALCJHB 4
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Netshifhefhe v CCMA (JR745/01) [2001] ZALCJHB 4 (13 November 2001)
BEGIN
DEUR 'N "HEADER" TE MAAK
Sneller
Verbatim/JduP
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR745/01
DATE:
2001-11-13
In the matter between
THOMAS
NETSHIFHEFHE Applicant
and
CCMA Respondent
J U
D G M E N T
REVELAS,
J:
This is an application in
terms of section 145 of the Labour Relations Act, 66 of 1995 ("the
Act"). The applicant was
dismissed by the third respondent, his
former employer, subsequent to a disciplinary hearing held on 23
March 2001. The applicant
felt that his dismissal was unfair, and
referred a dispute to the Commission for Conciliation Mediation and
Arbitration ("CCMA"),
where conciliation failed, and the
matter was arbitrated by the second respondent ("the
arbitrator").
The
charges which gave rise to the applicant's dismissal were gross
insubordination, creating tension in the workplace, not following
procedures, jeopardising the Standard Bank contract, and bringing the
company into disrepute. The applicant and his colleague were
found
guilty after the testimony by Mr de Villiers, the bank manager, the
evidence of the supervisor, and other employees. According
to Mr de
Villiers, he could no longer work with the applicant whom he required
to trust when he was at the bank.
The
factual background to this incident was that the third respondent
provided services to Standard Bank. The applicant had worked
in the
printing department, where it was of importance to observe priorities
and to ensure that printing was done on time. The
applicant had
worked the night shift, when the production was under the control of
the bank supervisor.
On the
evidence, on the morning of 14 March, the bank manager phoned, one of
the witnesses said that no production had taken place
that morning,
and the witness had told the manager that he would come in the next
day as the employees had already left. A meeting
took place on
Wednesday, 15 March, during which Mr de Villiers took statements from
the parties.
The
allegation was that the applicant and his colleague refused to take
production instructions during the shift, which had the
effect of
creating tension in the workplace, and also placing the respondent in
jeopardy with its client.
The
arbitrator listened to all the evidence by various witnesses, summed
it up in his award, and found as follows, and it is necessary
to
quote in this regard from his award:
"In this case the
applicant is charged with a number of offences and ultimately
dismissed. He denies the charges. The supervisor
and the manager
testified that he refused to work and to obey an instruction to work.
A number of questions, I believe, require
to be answered. Why did Mr
Derbyshire telephone de Villiers on the morning of the 13th if there
was no problem? Why did he phone
again on 16 March? More critically,
why did he feel the need to phone the bank at 4 am to enquire if
everything was allright, if
indeed everything was allright as the
applicant had me believe? 4 am is not a time when people normally
phone to enquire. Why,
if there was no problem with production did de
Villiers hold two meetings with his staff if everything was normal?
Applicant does
not deny these meetings. Why did Patrick feel the need
to call the superintendent at 12 am if production was proceeding
normally?
Unfortunately the applicant is not able to answer any of
these questions satisfactorily. He says:
On the one hand, he did
not refuse to carry out any instructions. On the other, he said that
his work was finished. Yet on the other
hand he says the printer was
down. Not one of these versions gels with the evidence tendered by
the respondent.
I find that the
respondent's version therefore is more probable, and I find that the
applicant did refuse to comply with the instructions
to work when
instructed by the supervisor and the manager. In the circumstances I
find that there is no justification for the allegation
that the
dismissal was unfair. I find that the procedure followed by the
respondent was fair, even considering the criticism made
in relation
to the appeal.
Accordingly
the application is dismissed."
On the
grounds raised by the applicant I am to interfere with this award.
However, before I can interfere with an award made by
an arbitrator I
have to be satisfied that the conclusion the arbitrator came to was
reasonably and rationally disconnected to the
facts.
The
applicant has put forward no grounds in support of such a finding.
Furthermore, the applicant has presented its matter in the
form of an
appeal, or rather a rehearing of the matter which I, sitting as a
court of review, am not entitled to do.
In the
circumstances the application is dismissed.
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