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[2004] ZALCJHB 6
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Rallit Total Transportation (Pty) Ltd v Hlongwane NO and Others (JR491/03) [2004] ZALCJHB 6 (18 May 2004)
NOT
REPORTABLE
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case No: JR 491/03
In
the matter between
RALLIT
TOTAL TRANSPORTATION (PTY)
LTD Applicant
and
SAZISO
HLONGWANE
NO 1
st
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION 2
nd
Respondent
RIAAN
LINGENFELDER 3
rd
Respondent
JUDGMENT
TOKOTA
AJ:
[1]
In this matter the third respondent was employed by the applicant as
a security investigator. On 29 June 2002 after work and
at the
premises of the applicant, the third respondent, one Boshoff, Steven
Nkabinde, De Beer, and Jordaan, all being employees
of the applicant,
were drinking beer.
[2]
The third respondent together with other employees tied Nkabinde to a
chair by means of what was referred to as “cable
ties”and
pushed him to a corridor. It was alleged by Nkabinde that there
were racial remarks that were passed on to
him although he could not
understand Afrikaans properly. The third respondent and the
other two employees who tied Nkabinde
were white employees.
Nkabinde was very upset about the incident and pleaded that they
should untie him. He was untied
after about five minutes.
[3]
On Monday the incident was reported to management and one Erasmus,
Operational Director of the company, called the third respondent
and
confronted him about the incident. He wrote a letter to the
third respondent in which he expressed the unacceptability
of his,
the third respondent’s conduct.
[4]
Although the incident initially did not appear to be too serious
after investigation it turned out to be. Nkabinde was
tied with
cables and apparently sustained some marks. The company viewed
this conduct in a serious light and considered it
to have some racial
undertones.
[5]
A disciplinary inquiry was subsequently instituted and the employees
that were involved were found guilty as charged and two
of them were
dismissed and one was given written warning. The one who was
given a written warning did not participate in
tying up Nkabinde. It
was third respondent and one Bishoff that were dismissed.
[6]
It is not in dispute that this was a dismissable offence. It is
also not in dispute that the company viewed the transgression
in a
serious light.
[7]
The third respondent appealed against the sanction but his appeal was
dismissed and the sanction confirmed. He then declared
a labour
dispute, which culminated in the CCMA arbitration. The commissioner
set aside the sanction and substituted the same with
his own. He
ordered that the applicant should pay third respondent seven months
salary compensation.
He
made that order on the basis that the dismissal was procedurally fair
and that reinstatement was not warranted.
[8]
It is needless to say that the discipline of employees lies
exclusively within the prerogative of management. It is the
management that must set standard for its employees and decide what
should be appropriate sanction for each infraction of any of
its
rules. This prerogative ought to be respected. The
arbitration is not an appeal court, which, because in its wisdom,
the
sanction appears to be harsh, must lightly interfere therewith.
It
is not the function of the commissioner to impose sanction on behalf
of the employer even though it may not agree with it as
such.
The
arbitration did not find the sanction to be unreasonable and instead
agreed that this was a dismissable offence. In his
award the
commissioner found that it “was common cause that the company
has a rule relating to unacceptable behaviour being
one of serious
offence that could lead to summary dismissal. It was common
cause that the applicant (third respondent) broke
the rule, and the
rule was reasonable and lawful. The applicant was aware of the
rule”
[9]
In my view the commissioner, even after having made the above finding
was not entitled to simply substitute his own sanction
as he saw fit.
He can only do so if he finds the dismissal to be unfair.
Consequently the commissioner exceeded his powers and
the award
cannot stand. In the result I make the following order.
1.
The review succeeds and order of the commissioner is set aside and
substituted with the following;
“
The application
is dismissed”
2.
No order as to costs.
B
R TOKOTA
ACTING
JUDGE OF THE LABOPUR COURT
DATE
OF HEARING : 25 March 2004
DATE
OF JUDGMENT: 18 May 2004
APPEARANCES:
For the Applicant: MS M.M. De Jongh of De Jongh Attorneys.
For
The Third respondent: Adv.Erasmus instructed Van Zyl Incorporated.