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[2002] ZALCJHB 19
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Government Communication And Information Systems v CCMA and Others (JR533/02) [2002] ZALCJHB 19 (25 September 2002)
[COMMENT1]
Sneller
Verbatim/JduP
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR533/02
2002.09.25
In the matter between
GOVERNMENT
COMMUNICATION AND
INFORMATION
SYSTEMS Applicant
and
CCMA AND
OTHERS Respondent
J U
D G M E N T
EX
TEMPORE
REVELAS,
J
:
1.
This is an unopposed application in terms of section 145 of the
Labour Relations Act, 66 of 1995 ("the Act").
2.
The applicant seeks to set aside the award made by the second
respondent in favour of the third respondent, the erstwhile employee
of the applicant, who was dismissed by it.
3.
The grounds upon which the applicants dismissed the third respondent
was for poor performance but also misconduct in the sense
that she
absented herself from work on several occasions without explanation,
and was often absent from her work-station.
4.
During the disciplinary inquiry the applicant was not called by her
representative to lead evidence although she pleaded not
guilty to
the charges. She exercised her right to appeal, and it was indicated
that at the appeal hearing new evidence was to be
led. This was not
done. The arbitrator took a very strong view against the
representative of the third respondent, who elected
not to give
evidence.
5.
The third respondent's job description included the management of
certain aspects of the applicant in its exhibition studio,
in a
professional cost effective and efficient manner to government
clients, including the office of the President of South Africa,
the
National and Provincial Governments, the GCIS Head Office and the
GCIS Regional Offices.
6.
It was not disputed at the arbitration hearing and it was indeed
found by the arbitrator that there was some form of counselling
conducted with the third respondent at least.
7.
There is also a comprehensive list, drafted by the applicant, about
the charges and allegations of misconduct. In the report
written by
the disciplinary inquiry chairman the chairperson took into account
that the third respondent is a mother, but that
nonetheless she was
given sufficient opportunity to mend her ways and he held the view
that the third respondent had illustrated
that she no intention to
mend her ways. The chairperson found that the aggravating factors far
outweighed the mitigating factors
as provided by the third
respondent.
8.
The arbitrator seemed clearly very sympathetic towards the third
respondent and found that she had an abusive relationship
since
1996, and that this "could have affected work performance",
and that was the applicant's case. The arbitrator found
that on the
evidence before him, it has been established that the third
respondent was assessed on a number of occasions and the
assessment
results were that she was not "doing well". The arbitrator
then rhetorically asks:"Did the employer establish
the reason
why the employee performed?" (
sic
). The arbitrator then
answers the question: "Whoever is before me does not say so, yet
the applicant performed poorly, but
why?"
9.
Finally, after expressing criticism about the third respondent's
representative, the arbitrator concludes:
"
I hold therefore
that respondent ... not proved that it has established the reason for
poor performance. Applicant had an abusive
domestic relationship.
Management of respondent knew about this. Employees' system
programmes were not used to help applicant in
her situation.
Applicant was only helpful after the dismissal. Is this not like
closing the stable door after the horses had bolted?
"
10.
It was argued that the arbitrator took into account irrelevant
evidence.
11.
My criticism of the arbitrator's finding is that she laid great
emphasis on an abusive relationship, yet it is not apparent
how this
influenced the applicant's work situation. The third respondent did
not bring this to the attention of the presiding chairperson
of the
disciplinary inquiry, and neither did she attempt to show how this
influenced her work performance at any stage, when she
was counselled
or otherwise. In my view the arbitrator's conclusion is not
rationally or reasonably connected to the facts before
him.
12.
In the circumstances his award is set aside.
[COMMENT1]
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