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[2002] ZALCJHB 31
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Iliad Africa Trading (Pty) t/a Rietpan Hardware And Building Supplies v Toli No (cited in his capacity as arbitration commissioner of the Building Industry Bargaining Council) and Others (JR134/01) [2002] ZALCJHB 31 (4 February 2002)
[COMMENT1]
Sneller
Verbatim/HVR
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR134/01
2002-02-04
In
the matter between
ILIAD
AFRICA TRADING (PTY) LTD t/a
RIETPAN
HARDWARE AND BUILDING
SUPPLIES Applicant
and
TOLI,
S N.O. (cited in his capacity as arbitration
commissioner
of the Building Industry Bargaining
Council) 1
st
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION AND
ARBITRATION
2
nd
Respondent
JOUBERT
PIERRE 3
rd
Respondent
J U
D G M E N T
REVELAS
J
:
1.
This is an application for review in terms of
section 145(1)(a)
,
145
(1)(b) and
145
(2) of the
Labour Relations Act 66 of 1995
as
amended, (“the Act”). The first respondent, in his
capacity as an arbitrator conducting an arbitration regarding
a
dispute which was referred by the third respondent to the second
respondent,(“the CCMA”), concerning an alleged unfair
dismissal.
2.
The first respondent found that the third respondent had been
substantively and procedurally nfairly dismissed.
3.
It was common cause before the first respondent that the third
respondent had received several warnings from the applicant regarding
his poor timekeeping. It was common cause that the respondent
was often absent from the workplace. A disciplinary inquiry
was
held and the third respondent was found guilty of the offence.
4.
As I understand it, the third respondent admitted that he committed
these offences and the question of sanction was the main
issue before
the chairperson who conducted the disciplinary inquiry.
5.
The arbitrator, for reasons best known to himself, found that the
dismissal was substantively unfair.
6.
The procedural unfairness found, was on the basis that the third
respondent wished to appeal against the decision of the applicant
that this was unreasonably refused.
7.
The first respondent found that since the applicant's code provided
for an appeal and denying the third respondent the opportunity
to
appeal, amounted to procedural unfairness. The third respondent
was then compensated by the first respondent with an amount
equal to
13 months' remuneration.
8.
In
Cox v Commission for Conciliation, Mediation and Arbitration
and Others
(2001) 22 (ILJ) 137 the Labour Court held as follows
at page 145:
"
The further
issues raised by the applicant are also without merit. The fact
that the second respondent did not consider the
dismissal to be
procedurally unfair because the applicant was not allowed to appeal
despite of the provision in the collective
agreement/disciplinary
code for such appeal cannot be a basis for review, particularly since
second respondent noted the employer
claimed for refusing an appeal
which was that having regard to the nature of the charges and the
fact that "the applicant's
case may be heard by an independent
person, there was no one in the company who was qualified to deal
with the appeal. Further,
however, had the second respondent
found that an appeal had to be granted and failure to do so
constituted an unfair procedure
in effecting a dismissal it would not
have made any difference as the second respondent stated in his
award: 'I do not regard
the fact that there was no appeal as
constituting an unfair procedure. Even if that was so this is a
matter in which I would
not grant the applicant compensation for a
procedural defect of that nature.'
”
9.
It was also alleged that the chairperson of the disciplinary inquiry,
Mr Barbis, had knowledge of the events giving rise to the
disciplinary enquiry thereof and should not have heard the matter as
he was biassed.
10.
The fact that Mr Barbis had been involved in prior disciplinary
proceedings against the third respondent in the past, does not
per
se
disqualify him from acting as a chairperson in this particular
matter. Obviously Mr Barbis must have had knowledge of these
events as he after all works for the applicant as well. He did
not have direct knowledge of the events and he was not the
prosecutor
in the matter or the person who initiated the enquiry.
11.
In any firm, company, business or body that acts as an employer,
there will always be the chance of the disciplinary chairperson
knowing about the matter. Unless he was the prosecutor in the
matter or was demonstrably, a chairperson is not automatically
precluded from presiding because of being an employee who has
knowledge of the matter. If that was a basis to
disqualify
a chairperson then hardly any employer could ever
discipline its employees, for this reason alone.
12.
In the circumstances I find that this award of the first respondent
falls to be set aside and substituted with the following:
"The dismissal was
fair."
___________________
E.
Revelas
[COMMENT1]
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