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[2008] ZALCJHB 9
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Davies Plumbing Civils CC v Commission for Conciliation, Mediation and Arbitration and Others (JR1363/07) [2008] ZALCJHB 9 (19 March 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO. JR1363/07
In
the matter between:
DAVIES
PLUMBING CIVILS
CC APPLICANT
AND
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
1
ST
RESPONDENT
MBOVANE
N.O.
2
ND
RESPONDENT
RODNEY
ALLEN MATTHEWS
3
RD
RESPONDENT
JUDGEMENT
Molahlehi
J
Introduction
[1]
This is an application to review and set aside the
arbitration award of the second respondent, the Commissioner, issued
under case
number GAJB 2350/07 dated 12 April 2007.
[2]
In terms of the award the Commissioner found the
dismissal of the third respondent, Mr Matthews to be both
procedurally and substantively
unfair and directed that he be
compensated in the amount of R49200.00.
Background facts
[3]
The third respondent (the employee) was prior to
his dismissal employed as a junior site agent by the applicant.
[4]
As part of an established practice, the applicant
closes its business for holidays between December and January.
[5]
It is common cause that the employee reported for
duty on 16 January 20007 instead of the 8
th
January 2007. This gave rise to the dismissal of the employee for
being absent without authorized leave.
[6]
Mr. Davies, the member and owner of the applicant
testified that the only two people who could grant the employee leave
were him
and Mr Yoko.
[7]
The employee testified that he went overseas
during the December shut down and because he knew he would not be
able to be back on
time when the applicant opens in January, he
approached one of the managers, a certain Mr. Hardacre for a letter
indicating that
he would report for work on the 16 January 2007. The
letter was also required according to him for the purposes of
traveling overseas.
The
award and the grounds for review
[8]
The applicant contended that the
Commissioner allowed the employee’s consultant to be present
during the hearing and that
this was intimidating and unfair. The
applicant also alleged that the consultant was allowed to pass notes
to the employee during
the proceedings.
[9]
The second complaint of the applicant is
that the Commissioner in his award relied on the letter signed by Mr.
Hardacre who did
not have authority to do so. Also related to the
letter was the complaint that the representative of the applicant saw
the letter
for the first time at the commencement of the arbitration
hearing. This letter according to the applicant did not comply with
the
procedure required for an application for leave.
[10]
In addition the applicant contended that
had the Commissioner complied with his duties properly he would have
granted the applicant
a postponement. The postponement would have
provided an opportunity to investigate the authenticity of the
signature on the letter.
[11]
The commissioner in finding the dismissal
to be procedurally unfair reasoned that the employee was never called
to a disciplinary
hearing but an investigation session. The
commissioner found that because of this the employee was denied an
opportunity to properly
prepare for his defense.
[12]
The relevant part of the letter notifying
the employee about the hearing read as follows:
“
Please
note that this is not a disciplinary hearing and that no formal
charges of being brought against you (sic at) this stage.
The purpose of the
inquiry is to establish the facts surrounding certain allegations
against you as set out here under.”
[13]
The applicant contended that the above
quotation was inserted in the notice by error and that there was no
way that it could be
said that the employee did not appreciate what
he was faced with.
[14]
In my view, the facts and information
contained in a notice to attend a disciplinary hearing must not only
be unambiguous but must
contain sufficient information to ensure that
the right of the employee to prepare for the hearing is realized. The
right to prepare
for a disciplinary hearing may be undermined if
insufficient or confusing information is provided as is apparently
the case in
the present matter. In other words the requirement to
provide concise and adequate information arises from the need for
adequate
preparation.
[15]
In the case of
Police
and Prisons Civil Rights Union v Minister of Correctional Services
and Others [1999] 20 ILJ 2416 (LC)
, at
page 2426, the court in agreeing with the submission of counsel for
the applicant that the standard for the disciplinary charge
sheet
cannot be the same as for one in the criminal trial however held that
the information
on
that charge- sheet (disciplinary) must be sufficient to make the
employee’s rights to prepare a real and not an illusory
right.
[16]
It is essential that the notice containing
the charges should be precise and spell out in a precise manner the
nature of the process
that the accused person is to confront during
the hearing. Thus, preparation for investigation and being faced with
the possibility
of a suspension as the notice in this case suggests
is different to facing the disciplinary inquiry whose consequence
included
a dismissal.
[17]
Turning to the facts of this case my view
is that a reasonable decision maker could have reached the same
conclusion reached by
the Commissioner in as far as the procedural
fairness is concerned. The reasonable decision marker test to be used
in determining
whether or not an arbitration award should be reviewed
and set aside was formulated in
Sidumo
& Another v Rustenburg Platinum Mines Ltd &
Others (2007) 28 ILJ 2405 (CC).
Substantive
fairness
[18]
The Commissioner rejected the contention of
the applicant that the employee’s leave was unauthorized. He
found that the allegation
that the leave was unauthorized was negated
by the letter written by one of the applicant’s managers. He
also rejected the
argument that the manager who signed the letter did
not have authority to do so. The Commissioner correctly found that
even if
it was found that the manager who signed the letter did not
have authority to sign, the employee could not be punished for the
manager who acted outside his powers.
[19]
In my view the above conclusion of the
Commissioner, cannot be criticize for being unreasonable. The
decision is one which a reasonable
decision maker could have reached.
[20]
The argument that the Commissioner
should have postponed the matter to afford the applicant an
opportunity to investigate the signature
on the letter, does not take
the case of the applicant any further. The postponement would not
have changed the facts because we
now know from the affidavit of Ms
Hardcre that the letter was signed by Mr Hardcre who was the
immediate superior of the employee.
[21]
In relation to the issue of the consultant
seating in the arbitration hearing, it is common cause that he was
allowed to seat in
and that the applicant never objected to him
seating in as an observer. It is also apparent from the reading of
the record that
the Commissioner made it clear right from the
beginning of the hearing what the status of the consultant during the
hearing would
be. It is clearly a matter which the Commissioner
considered. It is also apparent from the record that at some
stage the
observer sought an intervention during cross examination of
the employee by the applicant’s representative. The applicant’s
representative immediately reminded him of his status in the hearing.
This was then immediately confirmed by the commissioner.
[22]
There is nothing in the record that
suggests that the observer passed notes to the employee. The
probabilities also do not favour
this version. If this was to have
happened there seem no doubt that the applicant’s
representative would have objected as
he did when he (the observer)
tried to intervene during the cross examination of the employee. The
commissioner would also have
called him to order as he did during the
cross examination of the employee.
[23]
In my view, regard being had to the
evidence and the totality of the facts which were presented during
the arbitration hearing,
it cannot be said that the conclusion
reached by the Commissioner was unreasonable. It can also not be said
that the Commissioner
denied the applicant a fair hearing by not
granting a postponement to afford the applicant an opportunity to
investigate the authenticity
of the signature of the latter in
question. In fact the reading of the record reveals that the
Commissioner did apply his mind
to the issue of the signature of the
letter and concluded that it did not warrant any postponement.
[24]
I see no reason in law and fairness why
costs should not follow the result.
[25]
In the circumstances, the review
application is dismissed with costs.
____________________
MOLAHLEHI
J
Date
of Hearing: 05 December 2007
Date
of Judgement: 19 March 2008
APPEARANCES:
For
the Applicant: A Snider
Instructed
by: Shannon Little Attorneys.
For
the Respondent: M Pye
Instructed
by: Pearson &