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[2005] ZALCJHB 2
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JDG Trading v Sadiki and Others (JR925/02) [2005] ZALCJHB 2 (12 December 2005)
IBEGIN
DEUR 'N "HEADER" TE MAAKIIIIIIIIIIII
I
N
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
BRAAMFONTEIN
CASE
NO: JR925/02
In
the matter between
JDG
TRADING Applicant
and
G
SADIKI
1
ST
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
2
ND
Respondent
BLIGNAUT,
FRANSA
3
RD
Respondent
JUDGMENT
REVELAS
J:
[1]
This is an application for review in terms of section 145 of the
Labour Relations Act 66 of 1995 (“the Act”).
The applicant, the former employer of the third respondent, seeks to
review an arbitration award made by the first respondent ("The
Arbitrator"), in favour of the third respondent.
[2]
The third respondent was dismissed by the applicant for breach of
certain procedures and what it argues was dishonesty.
It
is common cause in this matter that the applicant exchanged a
postdated cheque, signed by her husband, for R2 000,00 cash, from
the
applicant and instructed her colleagues not to do the banking on the
Monday as the cheque was postdated for the coming Tuesday.
[3]
Since she had acted in this manner in front of her co-employees
inter
alia
, a certain Ms Lufono, she was
reported, charged and dismissed at a disciplinary hearing.
[4]
It is also confirmed that in terms of the applicant's banking
procedures, banking of all cash received, be effected daily in
terms
of a written process. In addition there was also a strict
policy with regards to which cheques may be accepted
and how all
cheque transactions should be treated. The third
respondent was fully trained in, and fully aware of the
provisions of
such policies and procedures. This was one of the main reasons why
the applicant felt, the third respondent should
be dismissed.
[5]
The third respondent required some funds for personal purposes, being
to purchase cattle, and the sum involved was R2 000, 00.
The third respondent removed this sum in cash from the company funds
on Saturday 12 May. I have already stated that
the sum
was replaced by a postdated cheque, signed by the third respondent’s
husband for the same amount dated for the Tuesday
which was 15 May
2001.
[6]
The arbitrator held that although aggravating circumstances were not
presented in evidence, and at the disciplinary hearing,
that could
not be held as fatal against the employer's case in as far as
procedural fairness is concerned, as long as guidelines
by Schedule 8
(Code of Good Practice were followed, and they were.
[7]
With regard to substantive fairness, it had been conceded from the
beginning that the employee exchanged the postdated cheque
for cash.
In respect to substantive fairness, the Arbitrator found as follows:
"Having
considered the facts globally, I determine the following:
1.
That the consistency plea could not stand against the employer as
same is based on hearsay
and no proof that the employee took an
active initiative to have somebody discipline.
2.
That I determined under the circumstances that the sanction of
dismissal is harsh, taking
the following into consideration.
2.1
The transaction was not done secretly and the employee was always
open about it. (No act of dishonesty
took place).
2.2
The personal circumstances, for example, service with a clean record
proves that the employee could
improve to avoid transgressions
if given a second chance."
[8]
In essence, the applicant's case was that employers, rather than
arbitrators, should give employees a second chance when they
misconduct themselves. That may be so, but in this
particular matter, there are other factors which I have to (and
which
the arbitrator did) take into account.
[9]
In this application for review, I had to consider whether the
arbitrator's ultimate conclusion was connected to the facts before
him or her. In this case, the applicant committed a serious breach of
the applicant’s banking procedures. It is so, that
in most such
cases, employers would be quite entitled to, and would indeed decide
to dismiss such an employee. Other
employers might take
into account, as the arbitrator had done in this matter, that the
employee had a long, clean service record
and that she had not acted
deceitfully. The arbitrator also considered the suggestion that there
was bad blood between Ms Lufono
and the third respondent, before this
incident.
[10]
Argument was also presented on behalf of the applicant, that the
third respondent had acted dishonestly, asking that the banking
be
held over until the Tuesday. That may be an aggravating
factor to some extent, but it is clearly not indicative
of patent
dishonesty as one would find in fraud or theft, as she did so openly.
In these circumstances, the arbitrator’s
finding was one of a
reasonable range of outcomes and is not irrationally disconnected to
the facts.
[11]
Even if I am wrong in finding that the Arbitrator did not act
irrationally, there is a further factor which persuades me that
this
application for review should be dismissed, and that is that the
applicant filed and served its review application in June
2002. The
arbitration award is dated 14 May 2002. The applicant
therefore brought its application for review
well in time.
However, thereafter the applicant and his attorney rested on their
laurels and this review came before
the court for hearing for the
first time on 12 December 2005. The previous time the
matter was set down for hearing,
was on 8 December 2005, but this
time it was set down by the third respondent who wished the
application for review to be dismissed
due to the applicant's failure
to expeditiously prosecute its review.
[12]
I am not convinced by any of the reasons presented by the applicant's
attorney that there is an excuse for a delay of more
than three years
to persue a review application. It has led to undue
prejudice. The Labour Court also has
to take a stand
against the employers who bring review applications and then embark
on delaying tactics. There is no
time limit specified,
during which a litigant should produce the record of arbitration
proceedings in a review application, and
that is where, in the
court's experience, most delays occur. These type of abuses are used
by several employers to avoid liabilities
in terms of the awards that
are made against them. It is with growing concern that I have noticed
how long a review application
can be dragged out by simply doing
nothing about serving a record. Strong reliance is usually placed on
alleged defects of the
CCMA’s administration and case
management. Without going into the appropriateness or otherwise, of
such an assertion, it
would appear that any form of mismanagement at
the CCMA is manipulated to the advantage of those who wish to delay
review proceedings.
[13]
The application is therefore dismissed with costs.
_________________________
Judge
Elna Revelas
Judge
of the Labour Court
Date
of Hearing: 08 December 2005
Date
of Judgment: 12 December 2005
On
behalf of the applicant:
Adv.
W Hutchinson instructed by Snyman Attorneys
On
behalf of the respondent:
Mr
A Naude of Coxwell Steyn Vise and Naude Attorneys