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[2009] ZALCD 28
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Ngozwane v Commission for Conciliation Mediation And Arbitration and Others (D860/06) [2009] ZALCD 28 (25 February 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO
: D860/06
DATE
:
25 February 2009
Not
reportable
In
the matter between
NTOMBEMHLOPHE
A.
NGOZWANE
APPLICANT
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
COMMISSIONER
P VAN ZYL
SECOND
RESPONDENT
RELYANT
RETAIL LTD T/A SAVELL’S
FURNISHERS
THIRD
RESPONDENT
JUDGMENT
25
FEBRUARY 2009
PILLAY
D, J
This
review can be decided on a singular issue, namely whether the
arbitrator found the applicant employee was found guilty of an
offence for which she was not charged. The employee was charged
for:
“
Dishonesty/fraud
in that you wilfully and deliberately defrauded the company by
claiming sales commission on your son’s name
for sales that he
did not do.”
The
arbitrator found her guilty of dishonesty,
“…
in
changing the deal on the computer and that she had done so to defraud
the company in an attempt to get them to pay the commission
to her
instead of Gaylord.”
The
arbitrator determined that the charge was wide enough to enable him
to find her guilty in these terms. This Court agrees
with the
arbitrator. The employee’s defence raised at the
arbitration was a technicality at best. She did not dispute
that she
changed the deal on the computer. Her only defence was that she
could not be found guilty on that ground because
she was not charged
in those terms.
Assuming
that the Court or the arbitrator were to accept that defence, the
result would be to find her not guilty on the charges
for which she
was dismissed, reinstate her, re-hear the matter, which re-hearing
might substantially traverse the same ground of
evidence at a
disciplinary hearing, and then possibly process the dispute through
conciliation to arbitration, all of which might
endure for another
year, if not longer. That is clearly not the expeditious
resolution contemplated in terms of the LRA or
even the Constitution
of the Republic of South Africa, Act No 108 of 1996. Fairness,
the Constitutional Court has said repeatedly,
is fairness to both the
employer and the employee.
If
the employee had any credible defence or explanation for effecting
the changes, then the moment for tendering that defence was,
firstly,
when she was charged and secondly at the disciplinary enquiry. If it
was not done by that stage, then definitely it should
have been
tendered by the time the dispute reached the conciliation and
arbitration stages at the CCMA. This Court is in
the dark as to
what
bona fide
explanation she had. It is certainly not tendered in these papers. An
honest witness who has an honest explanation will tender
it at the
first opportunity. The Court is not persuaded that the employee
is an honest witness. In any event, there
is nothing in the
award in the light of the
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
(2007)
28 ILJ 2405 (CC) judgment that renders it reviewable. The
application for review is
DISMISSED WITH
COSTS.
________________
Pillay
D, J
Date
of Editing:
22 May 2009
Appearances:
For
the Applicant:
Mr Jafta-Jafta Inc
For
the Respondent:
Adv C Nel instructed by
Calitz Crockart & Associates
TRANSCRIBER’S
CERTIFICATE
This
is, to the best abilities of the transcriber and proofreader, a true
and correct transcript of the proceedings,
where audible
,
recorded by means of a mechanical recorder in the matter:
M
NGOZWANE v SAVELL’S FURNISHERS
CASE
NO
:
D860/06
PILLAY
J OF ORIGIN
:
DURBAN
TRANSCRIBER
:
I BOTES
DATE
COMPLETED
:
20 MARCH 2009
NO
OF TAPES
:
1XCD
NO
OF PAGES
:
13
IN
THE LABOUR COURT FOR
THE
DISTRICT OF DURBAN
HELD
AT DURBAN
CASE
NO
:
D860/06
DATE
:
5 JANUARY 2009
BEFORE
:
PILLAY J
APPLICANT
:
M NGOZWANA
RESPONDENT
:
SAVELL’S FURNISHERS
ON
BEHALF OF APPLICANT
:
MR P JAFTA
ON
BEHALF OF RESPONDENT
:
MS C NEL
REPORT ON
RECORDING
Clear recording.