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[2009] ZALCJHB 27
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Watloo Meat And Chicken v Commission for Conciliation Mediation and Arbitration and Others (JR963/08) [2009] ZALCJHB 27 (14 August 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT REPORTABLE
CASE
NO: JR963/08
In
the matter between:
WATLOO
MEAT AND CHICKEN
APPLICANT
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
1
ST
RESPONDENT
HAROLD
MATSEPE
N.O.
2
ND
RESPONDENT
JAN
RESINGA
MASHABA
3
RD
RESPONDENT
JUDGMENT
Molahlehi J
Introduction
[1]
This is an unopposed application to review
and set aside the arbitration award made by the second respondent
(the commissioner)
under case number LP5749-07 dated the 19
th
March 2008. In terms of the arbitration award the commissioner found
the dismissal to have been both procedurally and substantively
unfair.
Brief background
facts
[2]
The third respondent, Mr Mashaba, was
employed by the applicant since 1999 as a freezer man. On the 20
th
June 2007, Mr Mashaba was arrested by the South African Police
Services on a charge relating to the possession or use of a firearm
and was initially released on bail. The matter was postponed on a
number of occasions pending further investigation during which
postponements Mr Mashaba contravened his bail conditions and failed
to appear after the matter was duly postponed. For this reason
Mr
Mashaba was remitted in custody and his bail forfeited. He was
released from prison on the 12
th
September 2007.
[3]
After his release Mr Mashaba reported for
duty at the workplace of the applicant where on arrival at the
workplace he spoke to Ms
Caroline Kriel, a personal assistant to the
director of the applicant. On the version of the applicant Mr Mashaba
was told by Ms
Kriel to come back when the director Mr Faia was back
at work. The applicant’s case is further that since being told
to come
back when Mr Faia, was back it never again heard from Mr
Mashaba.
[4]
According to the applicant the next time
the applicant heard from Mr Mashaba was after he had referred the
dispute concerning his
dismissal to the CCMA claiming that he was
unfairly dismissed. The matter was conciliated and upon failure
thereof referred to
arbitration. In terms of the arbitration award
the commissioner concluded that the Mr Mashaba was dismissed and that
the said dismissal
was both procedurally and substantively unfair.
The commissioner awarded Mr Mashaba compensation equivalent to 12
(twelve) months’
salary.
[5]
The commissioner reasoned that Mr Mashaba
was dismissed because after his release from prison he wanted to
assume his duties with
the applicant and never absconded or left on
his accord. The commissioner further reasoned in this regard that the
applicant acted
in a manner that made it impossible for Mr Mashaba to
resume his duties and was therefore deemed dismissed.
[6]
The commissioner states that if the
applicant had the will and determination Mr Mashaba would be back in
his employment. It was
for this reason it would appear that the
commissioner concluded that by its conduct the applicant caused the
dismissal of Mr Mashaba.
[7]
The applicant contended that the
commissioner misconstrued the nature of his function and the legal
principles that he was required
to apply or failed to apply his mind
properly to the issues before him and thereby denying the applicant
its right to a fair hearing.
[8]
It is trite that a commissioner commits a
reviewable conduct if he or she fails to apply his or her mind to the
issues before him
or her. The commissioner commits a gross
irregularity if he or she fails to apply the appropriate test in
evaluating the evidence.
[9]
In this matter the commissioner was
confronted by two conflicting versions which were irreconcilable. The
version of the applicant
is that it never dismissed Mr Mashaba,
thereby necessitating an investigation into the existence of
dismissal as a matter of fact.
Thus the commissioner was required to
assess on the balance of probabilities whether or not the Mr Mashaba
had on the evidence
he presented proved that he was dismissed. The
burden to adduce evidence that there was a dismissal in terms of
section 192 of
the Labour Relation Act rested on Mr Mashaba to show
that he was indeed dismissed.
[10]
It is apparent from the reading of the
award that the commissioner proceeded to deal with the issue of the
alleged unfair dismissal
without resolving the respective conflicting
versions of the parties which was before him. In this respect the
commissioner ought
to have reasoned why he accepted the version of Mr
Mashaba over that of the applicant. The commissioner ought to have
evaluated
the versions of the parties on the balance of probabilities
failing which used the credibility of the witnesses of the respective
parties in the process of determining which version was more
plausible.
[11]
In my view the commissioner failed to make
a finding on credibility and probability which resulted in him
misconstruing the nature
of his function and the application of the
legal principles that he was required to apply and that as a result
thereof failed to
apply his mind properly to the issues before him
and thereby denying the applicant its right to a fair hearing.
[12]
In the light of the above I am of the view
that the award of the commissioner stand to be reviewed and be
remitted to the first
respondent.
[13]
In the premises the following order is
made:
(i)
The arbitration award issued under case
number LP5749-09 and dated 19
th
March 2008, is reviewed and set aside.
(ii)
The matter is remitted back the first
respondent for consideration afresh by a commissioner other than the
second respondent.
(iii)
There is order as costs.
_______________
Molahlehi
J
Date
of Hearing :
21
st
April 2009
Date
of Judgment :
14
th
August 2009
Appearances
For
the Applicant :
Mr J C Mulder of Geldenhuys C J @ Law Inc
For
the Respondent: (Unopposed)