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[2008] ZALCJHB 32
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Coin Security Group (Pty) Ltd v Duswo and Others (JR915/2003) [2008] ZALCJHB 32 (8 February 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 915/2003
In
the matter between:
COIN
SECURITY GROUP (PTY)
LTD
Applicant
and
DUSWO
First
Respondent
P
A THLAKO
Second
Respondent
S
NTOMBELA
Third
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Fourth
Respondent
JUDGMENT
CELE
AJ
Introduction
[1]
This application is brought in terms of
section 166
of the
Labour
Relations Act 66 of 1995
for leave to appeal to the Labour Appeal
Court against an
ex tempore
final decision of the Court in this matter, dated 16 August 2007. The
parties have been cited as they appeared in the review application.
The order appealed against was issued in favour of the second
respondent who has unassisted filed some opposing submissions to
the
application.
[2]
As judgment was handed down on the same date that the matter was
argued, both parties were present to note it. After the application
for leave to appeal was filed a transcript of the judgment was
obtained and I directed that it be served on the parties while
granting them leave to supplement their submissions, in the event
they wished to. Only the applicant filed some supplementary grounds
for leave to appeal.
[3]
This application is clearly therefore one that falls within the
purview of
rule 30(2)
of the Rules of this Court. The initial
application was filed on 08 September 2007 by fax and the original
was subsequently filed
with the registrar on 12 September 2007. The
filing by fax placed this application within the 15 days time limit,
in terms of
rule 30(2).
Appeal
grounds
[4]
The applicant seeks leave to appeal on the following grounds:
4.1
“
The learned judged (sic) erred in
not finding that the excuse by the second respondent, for not acting
as a crewman on the 4
th
of August 2000, and which was presented both during the disciplinary
hearing and the appeal hearing, was inconsistent with the
explanation
which the second respondent gave during the arbitration before the
third respondent. The learned judge should have
found that it was
inconsist. (sic)
4.2
The learned judge erred in finding that the
third respondent did not commit a reviewable irregularity and that
consequently the
third respondent’s award was not reviewable.
The learned judge ought to have found that the third respondent did
not apply
his mind, relative to the inconsistency in the excuse by
the first respondent during the disciplinary hearing and the appeal
hearing
in comparison to the arbitration before the third respondent
and that the third respondent’s award as a result thereof was
reviewable.
4.3
In addition and alternatively, the learned
judge ought to have found that the findings by the third respondent
with respect to second
respondent’s explanation for not acting
as a crewman, was not justifiable against the background of the
inconsistency between
his explanation during the disciplinary hearing
and appeal hearing in comparison to the arbitration before the third
respondent.
4.4
The learned judge erred by not finding that
the true excuse for the failure by the second respondent to act as a
crewman was the
fact that he was on a final written warning, as was
found by both the chairperson of the disciplinary enquiry. Mr. Kriek,
as well
as the chairperson of the appeal hearing. The learned judge
ought to have found that the true reason for failing to act as
crewman
was the existence of the final written warning, and that
second respondent dismissal under the circumstances was substantively
fair.
[5]
The learned judge erred by not considering the review grounds taken
by the applicant with respect to the relief awarded by the
third
respondent. The learned judge ought to have taken this into account
and ought to have found that:
5.1
Reinstatement was not appropriate;
5.2
Alternatively if reinstatement was
appropriate, that it not be made retrospectively for the full period
between first respondent
dismissal on the 16
th
of August 2000 and the date of the third respondent’s award
being the 2
nd
of May 2003.”
The
submission made by the second respondent, Mr Thlako were couched in
an affidavit and are each a mere denial of the truth said
to be
contained in the grounds of the appeal.
[6]
The commissioner whose award was sought to be reviewed and set aside
found the dismissal of the second respondent to have been
substantively and procedurally unfair. He then ordered the applicant
to reinstate Mr Thlako with retrospective effect.
[7]
Three review grounds were proffered but when the application
proceeded before me, it proceeded in the main, on the second ground.
The first review ground related to the procedural aspect and it is
about the fact that Mr Kriek was appointed to chair the disciplinary
enquiry when in fact he had decided that the second respondent was to
be charge. On that ground it is suggested that he had not
been privy
to any of the facts on the day and could therefore easily proceed and
chair he hearing.
The
second ground is that the commissioner, the third respondent, failed
to apply his mind on important material evidence, namely
the version
presented by the second respondent at the disciplinary hearing, which
version was that he refused to work as a crewman,
he refused to go
out unless and until a final written warning had been withdrawn.
The
third ground relates to the sanction that was imposed, namely the
reinstatement of the second respondent.
The
judgment sought to appeal against
[8]
In respect of the first review ground, I did not find any misconduct,
gross irregularity or any failure by the commissioner
to exercise his
powers properly. Nor could I find that his decision was not
justifiable as then alleged. On the third ground, I
found that the
commissioner had to reinstate Mr Thlako in terms of
section 193(2)
of
the Act, unless the grounds therein stated, made it not suitable to
reinstate him. I found no defect in the order of reinstatement.
[9]
The second review ground was the main consideration for the
application. I found that:
·
The award said nothing about the version Mr
Thlako presented to Mr Kriek, as the chairperson of the disciplinary
enquiry.
·
I had first to look at the version of the
applicant during the internal disciplinary hearing because the
applicant bore the onus
to prove the infraction complained of.
·
Mr Welman called by the applicant had said
that:
“
On
06 August 2000, Mr P A Thlako refused to act as crewman, he was only
willing to act as a vehicle guard. He has an aggressive
attitude and
refused to work as a crewman on which he was appointed.”
·
The chairperson acquitted Mr Thlako of the
charge of acting in an aggressive manner, but convicted him of
disobeying a lawful and
reasonable instruction.
·
According to applicant’s own version
Mr Thlako refused to work as a crewman but was willing to act as a
vehicle guard. According
to the applicant, the reason why Mr Thlako
and his supervisor Mr van Tonder argued was on whether Mr Thlako had
to work as a crewman
or as a van guard.
·
During the arbitration hearing, Mr Thlako
presented a version in line with what Mr Welman had testified to in
the internal disciplinary
hearing. Mr Thlako said that as a new and
customer unknown crewman, the safety of money collection would be
compromised. The customers
would have to telephone the applicant to
verify his identity.
·
Mr Welman did not give a detailed account
of who it was that Mr Thlako would have as a crewman instead. In his
evidence at arbitration
hearing, Mr Thlako said that Mr Jones was
available and willing to be a crewman on that day
·
Mr van Tonder did not testify during the
disciplinary hearing and during the arbitration hearing when he was a
crucial witness.
·
Even if the commissioner had looked at the
version presented by Mr Thlako during the disciplinary hearing, the
probabilities of
the case were that he would have found that the
reason for the fracus was on the capacity in which Mr Thlako was to
work on that
day. It would not have been an insistence by Mr Thlako
that the written warning against hm be first withdrawn before he
could go
out. Such investigative task by the commissioner would
therefore not have taken the matter any further.
Analysis
[10]
The significance in the two versions has a bearing on the
reasonableness
of the instruction given by Mr Van Tonder. According to Mr Thlako the
instruction compromised security in the transportation
of money from
the applicant’s clients to the bank. That version presented to
the commissioner stood unchallenged by the applicant.
[11]
The first ground of appeal suggests that Mr Thlako had to prove his
innocence, that he lied and that therefore he was guilty
of not
obeying a reasonable instruction. It flies on the face of the
reasonable explanation which the applicant’s own witness
proffered. It places the onus of proof to Mr Thlako, where it does
not belong.
[12]
In the second ground the applicant suggests that it ought to have
been found that the commissioner did not apply his mind relative
to
the inconsistency in the excuse by Mr Thlako. Not only did I make
such a finding against the commissioner but I investigated
whether
such failure denied the applicant of a fair trial of issues. I found
that such investigative task would have taken the
matter no further.
[13]
In respect of the third ground, the finding sought by the applicant
to have been made by the commissioner, could not be made
in the
absence of as crucial a witness as Mr van Tonder was. That left Mr
Thlako’s version at the arbitration hearing unchallenged.
The
fourth ground suffers the same fate as the first ground. If the true
reason for failing to act as crewman was the existence
of a final
written warning, applicant’s own witness Mr Welman lied about
that true reason. It is difficult to see then how
the onus resting on
the applicant was discharged, calling on an answer from Mr Thlako.
[14]
If the applicant was in possession of a transcript of the judgment at
the time of outlining the fifth ground, I believe this
ground would
either have been abandoned or restructured. I believe what has been
said thus far covers the two supplementary grounds
and that a need
for repetition is uncalled for.
[15]
All things considered, I am not of the view that the applicant has
reasonable prospects of persuading another court that the
dismissal
of Mr Thlako was premised on a fair reason and that it was carried
out in a fair manner. The question of the importance
of this case has
not been raised by the applicant, nor am I able to find any
importance in the matter.
Order
[16]
In the result I make the following order:
1.
The application for leave to appeal to the
Labour Appeal Court is dismissed.
2.
No costs order is made.
____________________
CELE
AJ
Date
of Hearing:
Matter decided in chambers
Date
of Judgement:
08
February 2008
APPEARANCES:
For
the Applicant:
None
Instructed
by
For
the Respondent:
None
Instructed
by