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[2002] ZALCJHB 9
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Dlongolo v Commission for Conciliation Mediation And Arbitration and Others (JR999/01) [2002] ZALCJHB 9 (5 March 2002)
[COMMENT1]
Sneller
Verbatim/HVDM
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR999/01
DATE:
2002-03-05
In the matter between
JAMES
DLONGOLO
Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
1
st
Respondent
TIMOTHY
BOYCE 2
nd
Respondent
PRIMA
INDUSTRIAL HOLDINGS
3
rd
Respondent
J U
D G M E N T
Delivered
on 5 March 2002
REVELAS
J
:
1.
This is an application for the review of an arbitration award dated
28 July 2001 in which the arbitrator had found that
the
dismissal of the applicant by the third respondent was fair.
The applicant was charged with the theft of scrap metal
from the
respondent's premises. Apparently he handed the scrap metal
bars over the wall of the premises to a person (who
later testified
against him) and he was apprehended in the act of receiving the scrap
metal outside the wall. The commissioner
found that the
dismissal was for a fair reason and that the dismissal was effected
in accordance with a fair procedure.
2.
The applicant is now seeking to review that finding on the grounds
that he is not guilty of theft because the stolen goods were
not
found on his person.
3.
It appears to me that the major level of criticism of the
arbitrator's award is that the applicant's guilt, according to him,
was determined by circumstantial evidence and not direct evidence.
He believes that since he was not caught red handed
no inference
can be drawn that he was not guilty and that he ought to have been
found not guilty.
4.
The arbitrator gave a long and well reasoned award. He found
that on this evidence the applicant was guilty of the offence
as put
forward by the respondent's witnesses, whose evidence he accepted.
5.
With regard to the sanction of dismissal, the arbitrator held that he
was unable to conclude on the basis of all the evidential
material
before him, that the third respondent's decision to dismiss the
applicant was unreasonable. He referred to the fact
that in
principle, an employer is entitled to set standards and to decide on
which sanctions should be imposed for non-compliance
with those
standards and found that dismissal was the only sanction that could
be imposed in the circumstances.
6.
In order to interfere with this finding on review, it had to be
demonstrated that the arbitrator came to a conclusion which was
not
rationally connected to the facts. In my view, the applicant
put forward no such grounds to demonstrate the aforesaid.
The
setting aside of an award is not simply just for the asking. There is
also a difference between an appeal and a review.
7.
The applicant simply seeks a different outcome. The outcome which was
reached by the arbitrator, I am unable to criticise in
any respect.
No irregularities were committed.
8.
In my view, the arbitrator did not fall foul on any of the provisions
of section 145 of the Labour Relations Act.
9.
In the circumstances the application for review is dismissed.
______________
E.
Revelas
[COMMENT1]
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