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[2008] ZALCJHB 56
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Mdlalose v South African Nuclear Energy Corporation (JR347/2007) [2008] ZALCJHB 56 (21 February 2008)
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IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO
: JR347/2007
2008-02-21
In
the matter between
THEMBA
E
MDLALOSE Applicant
And
SOUTH
AFRICAN NUCLEAR ENERGY
CORPORATION Respondent
J
U D G M E N T
MOSHOANA
J
:
This
is an application brought in terms of the provisions of Section 145
of the Labour Relations Act, wherein the applicant,
one Themba
Mdlalose applied to this court to have an award issued by the second
respondent acting under auspicious of the first
respondent to be
reviewed and set aside.
Mr Mdlalose was an
employee of the third respondent and in the course of his employment
there were certain issues which are dealt
with clearly in the summary
of the evidence in the award that is being attacked and for the
purpose of this judgment, I do not
want to repeat the entire
evidence. But what stands out is that the applicant was then
charged with a number of charges and
he went through a disciplinary
enquiry and at the disciplinary enquiry he was found guilty of all
the charges and he was then afforded
an opportunity to appeal and the
appeal found him not guilty in some of the charges. The
remaining five charges were then
the basis upon which the third
respondent justified its dismissal when challenged by the applicant.
The arbitration
proceedings commenced with some points
in limine
, which again
for the purposes of this judgment, it will not be material to refer
to them, suffice to mention that in the end the
conclusion was, the
concentration would be on the charges to justify the dismissal.
Owing to the facts that
the third respondent had a duty in terms of the provisions of the Act
to justify the dismissal as in bearing
the onus to justify the
dismissal, it led evidence of various witnesses. At the end,
after hearing all the evidence, the
second respondent issued an award
which is being attacked by the applicant.
The applicant placed a
lot of attack in terms of the award and the sense that the court got
was that he was almost wanted an appeal
against the award. The
court, before he started with his submissions, owing to the fact that
he is not represented, attempted
to make a distinction between an
appeal and a review and the court got the impression that the
applicant understood but nonetheless
the court gave the applicant
leeway to delve into issue, that in the court’s view were not
necessarily important for the
purpose of determining the application
before it.
When Mr Maserumole who
appears for the third respondent, sought to address the court, the
court indicated that having read the award
and having read the
papers, it had concerns with two issues. The first issue was in
relation to paragraph 84 of the award
where the commissioner,
correctly so at the time, relied on what was considered to be good
authority of the Rustenburg Platinum
Mines before the Constitutional
Court overturned that decision. The question the court posed to
Mr Maserumole was whether
by mere reference to that decision; it
can be said that the second respondent deferred the issue of the
sanction to the employer,
to the extent that he would have been
guilty of gross misconduct in relation to his duties as a
commissioner.
Mr Maserumole’s
submission was that, with reference to the award itself, which I am
going to quote:
“
I
am of the view that it was not necessary for the respondent to prove
any further charges. The gross insubordination insolence
was
sufficient to warrant a summary dismissal. It appears as if
applicant communicated with his superiors by means of email
and what
was contained in the emails is fact.
In an attempt to water
down what was communicated is almost impossible. An attempt by
applicant to put the emails in context
and to explain why it was
mailed does not make sense for an employee in the position of the
applicant and for any employee for
that matter.
I am of the view that the
applicant was the author of his own fate and nothing that he
testified in this regard added to the benefit
of his case.
Applicant’s attitude and approach was clear, applicant was not
prepared to obey his superiors at the time”.
From that paragraph, it
is very clear that the commissioner in assessing the sanction of
dismissal, applied his mind to the evidence
that was before him and
took a view that what is contained in the emails is a clear
indication of gross insubordination which warrants
a summary
dismissal.
It may be important for
the purpose of this judgment just to quote one of the emails that,
according to the award, were not placed
in dispute. The email
dated 19 October 2004 that applicant said the following:
“
Trying
to drag me by the scarf of my neck, screaming and kicking back to
this Bantu Stan, it always requires a supreme effort to
suppress a
strong involuntary edge to throw up when one is subjected to such
abuse. I have now decided that the only practical
method which
is within my power to handle such situation is that I shall forthwith
disengage from any discussions on the Bantu
Stan project”.
Clearly, emails of this
nature can only mean that there is an aggravated level of insolence
on the part of the applicant.
So, it is the court’s
view that based on the evidence and the reasoning as quoted earlier,
the second respondent did not just
simply take an approach of folding
the arms and say that is the decision of the employer imposing a
sanction of dismissal I cannot
interfere with, as in what was the
situation in the Rustenburg decision before the Constitutional Court
decision. You find
reason that having looked at the emails and
having looked at everything else, the sanction of dismissal was
justified. So
therefore he performed his duties in determining
the appropriateness of the sanction.
The second issue which
the court raised with Mr Maserumole relates repeated relevance to the
concept
audi alteram partem
which had not been complied with.
The commissioner in his award, in about two paragraphs, paragraph 92
and 94, made reference
to the fact that the
audi alteram
partem
has not been complied with and the court commented to the
argument by Mr Maserumole that, by just looking at that, that in
itself
would send shivers down the spine in terms of the conclusion,
whether there was procedural unfairness. However, in his
submission,
he conceded rightly so that the choice of words seem to
be not appropriate, however, he referred the court to the conclusion
arrived
at by the commissioner which I quote:
“
Materially
speaking, respondent followed a fair procedure prior to the dismissal
of the applicant, despite my remarks pertaining
to not granting legal
representation and how the application for recussal of the
chairperson was held”.
In view of that, it is
the court’s view that the award is reasonable, that being the
test that has just been given recently
by the Constitutional Court.
It is not for me sitting as the reviewing judge to agree with the
commissioner but it is for
me to say that, having looked at the award
and having looked at the evidence, any reasonable commissioner could
have come to the
conclusion which this commissioner has arrived at.
As I have pointed out, I might not like the award but that is not the
test.
In the result, I make the
following order:
The application is
dismissed and I make no order as to costs
.
---oOo---
On
behalf of the Applicant:
In Person
On
behalf of the Respondent:
Mr Maserumole