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[2007] ZALCD 16
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University of KwaZulu-Natal v ELMS (D823/05) [2007] ZALCD 16 (25 May 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
(NOT REPORTABLE)
CASE
NO
:
D823/05
In
the matter between
UNIVERSITY
OF
KWAZULU-NATAL
Applicant
and
ELMS
Respondent
JUDGMENT
DELIVERED BY
THE
HONOURABLE MADAM JUSTICE PILLAY
ON
25 MAY 2007
PILLAY D, J
[1]
In this review the first respondent employee was dismissed for gross
insubordination,
in that he is alleged to have made malicious and
false statements against Mr Temple, the head of the department.
[2]
It was not disputed that the statements alleged to have been made
were
offensive, malicious or false. The issue was whether the
employee made the statements at all.
[3]
The arbitrator was faced with two mutually-destructive versions –
did he or did he not make the statements? Two witnesses for the
applicant, David and Joseph, testified that he did.
The
arbitrator rejected their testimony. He found, amongst other
things, that they had reason to fabricate their evidence
against the
employee. The arbitrator preferred the evidence of the employee
and his witnesses, despite finding the following:
(1)
The employee had tried to establish a false alibi as his defence at
the disciplinary
inquiry.
(2)
The employee changed his alibi defence when computer evidence showed
that he
left the main campus at about 23:48.
(3)
Moodley’s evidence that the employee urged him to support his
alibi defence
was acceptable.
(4)
The employee lied when he denied asking Moodley to corroborate his
alibi defence.
(5)
The employee had “scant regard for the truth and (was) prepared
to manipulate
evidence in order to secure his job”.
(6)
The employee’s witness, Dlamini, did not hear the conversation
between
the applicant and David. He could not say therefore,
that the employee did not make the offensive statements.
(7)
The employee’s witness Hadebe was not present when the
applicant allegedly
made the statements.
(8)
Ntuli had had a grievance against Temple in the past and was no less
open to
fabricating evidence than David and Joseph, assuming that
they had an axe to grind with the employee.
[4]
In all the circumstances, the award is irrational and unjustified by
the
evidence presented at the arbitration.
[5]
The application for review is granted with the first respondent
paying
the costs.
- - -
- - - - - - - - - - - - - - - - - - - - - - - - - -
_____________________
PILLAY D, J
DATE
OF HEARING:
24/05/07
DATE
OF JUDGMENT:
25/05/2007
FOR
THE APPLICANT:
MR CHADWICK OF SHEPSTONE
& WYLIE
ATTORNEYS
FOR
THE RESPONDENT:
MR BRUCE OF BARRY BRUCE
ATTORNEYS