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[2010] ZALCJHB 17
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SACCAWU obo Molefe v Commission for Conciliation Mediation And Arbitration and Others (JR1493/) [2010] ZALCJHB 17 (19 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO:
JR1493/07
In
the matter
between:
SACCAWU
obo REBECCA
MOLEFE
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
TJ
SEKHABISA
Second
Respondent
SHOPRITE
CHECKERS
Third
Respondent
JUDGMENT
TIP AJ:
[1]
This is a review application in which the
applicant seeks to have an arbitration award set aside, which was
made by the second respondent
on 30 April 2007. Ms Molefe, the
individual applicant, was previously employed by the third respondent
(“the company”).
She was dismissed on 31 October
2006 and a dispute was referred to the CCMA concerning the fairness
of the dismissal. In
due course, the matter came before the
second respondent who was required to determine whether the dismissal
had been substantively
and procedurally fair. The arbitrator
found in favour of the company and the dismissal was accordingly
upheld.
[2]
The incident that gave rise to the dismissal of Ms
Molefe took place on 1 September 2006 in the course of strike action
which had
been undertaken by employees of the company. A picket
was in progress at its Roodepoort Checkers store. The case
against
Ms Molefe is that she carried out an assault against an
elderly customer of the store at approximately 08h30 on that day.
Four witnesses gave evidence at the arbitration in support of the
company’s case and their evidence may be summarised as
follows:
[2.1]
Mrs Wilken is the customer who was allegedly
assaulted. She is a regular shopper at the store and was
readily able to identify
Ms Molefe. According to Mrs Wilken, Ms
Molefe was part of a picket outside the store and she started chasing
customers and
speaking very rudely to them. She then came
forward and struck Mrs Wilken on her shoulders. Mrs Wilken is
70 years
old and was greatly shocked by this. She had bruising
on her shoulders where Ms Molefe had struck her. She received
attention at the store for her shock and was given some pills for
high blood pressure. She had also been pushed and kicked,
although Ms Molefe was not directly implicated in this.
[2.2]
The second witness was Ms Hans, an employee of the
store, who confirmed that Mrs Wilken had come in when the store
opened and that
she had clearly been in a state of shock. She
noticed that there was some bleeding from Mrs Wilken’s
foot.
She assisted her in relation to her state of shock and
stated that she had seen Ms Molefe in front of the store entrance at
that
time.
[2.3]
Ms Gouws also assisted Mrs Wilken, who was clearly
in a state of shock and shivering. She gave her some high blood
pressure
medication.
[2.4]
The fourth witness was Ms Serewa, who testified
that she had identified Ms Molefe and others as part of a group
singing in front
of the door of the store.
[3]
The version of Ms Molefe is that she had not been
in the vicinity of the store at the time of the alleged incident and,
instead,
had gone together with a group of striking employees to the
Methodist Church in Johannesburg for a meeting of union officials and
striking workers. In corroboration of this version, she
produced a document identified as an attendance register taken at
the
meeting. However, it needs to be noted that this register does
not show the date or the starting and finishing time of
the meeting.
Two witnesses gave evidence in support of Ms Molefe’s version.
The one was Mr Mzila, who testified
that he had seen Ms Molefe at the
station near the Roodepoort store and that she was part of the group
going to the meeting.
However, he was unable to state with
certainty when the meeting had begun or ended. The second
witness was Ms Sibeko who
similarly said that she had attended the
meeting and that the train had left the station at approximately
08h00. She too
was uncertain about the meeting times.
[4]
The second respondent reviewed this evidence and
was satisfied that the company had discharged the onus of proving a
substantive
case against Ms Molefe. In doing so he
analysed the testimony and it is sufficiently clear from his award
why he accepted
one version and not the other. He also examined
the allegation of procedural unfairness, which consisted of the
contention
that Ms Molefe’s appeal had never been heard by the
company. However, as pointed out by the arbitrator, no
satisfactory
evidence was tendered to establish that an appeal had in
fact been lodged. In any event, the arbitrator concluded that
the
referral of the dispute and the conduct of the arbitration
brought before him cured whatever procedural shortcoming there may
have
been in this regard. In the circumstances, he likewise
held that the company had established that the dismissal had been
procedurally fair.
[5]
The following grounds of review were raised on
behalf of the applicant:
[5.1]
It is contended in general terms that the
arbitrator did not apply his mind to the relevant issues, that he
adopted an unjustifiable
approach to the facts, that he failed to
properly connect the evidentiary material and legal principles to his
award and that he
reached a conclusion that was not reasonably
justifiable.
[5.2]
Those general contentions are grounded on the
arguments that the second respondent failed to take into account the
attendance register
as amounting to proof that Ms Molefe had never
been at the store in question on that day, that he should have
accepted Ms Molefe’s
evidence that Mrs Wilken was entirely
unknown to her, that he should have accepted evidence that the time
of the meeting in
Johannesburg was such that Ms Molefe could never
have been at the store at the time in question, that he erred in
rejecting evidence
to that effect and that he erred in finding that
Ms Molefe should have disputed the presence of Mrs Wilken at the
store on
the day.
[6]
In the course of the argument before me, Ms Mjeza
also argued on behalf of the applicant that there was a credibility
issue concerning
Ms Serewa, who had acted as a scribe at the
disciplinary hearing and then appeared as a witness in the
arbitration. It was
argued also that Ms Serewa had given
conflicting evidence concerning related activities.
[7]
I agree that there are some valid criticisms of Ms
Serewa’s position as a witness and of the fact that the
arbitrator had
regard at all to the fact that the presence of
Mrs Wilken at the store had not been disputed in the course of
the evidence
for Ms Molefe. Given that her defence was
essential one of alibi, that was not an appropriate factor for the
arbitrator to
take into account. However, those aspects were by
no means critical to the principal thrust of the evaluation of the
evidence
which the arbitrator conducted.
[8]
The particular grounds which have been advanced on
review arose from the evidential material before the second
respondent and which
I consider was in general fairly outlined and
properly evaluated by him. I am not at all persuaded that the
manner in which
he undertook that task could be described as
unreasonable or unjustifiable. His conclusions on the evidence
and his ultimate
award were, in my view, the product of proper
consideration and appropriate in relation to the evidence as a
whole.
[9]
See generally in relation to the test on review
the following decisions:
Sidumo &
another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC) at para [110];
Fidelity
Cash Management Service v CCMA & others
[2008]
3 BLLR 197
(LAC) at para [97] to [99] and [103]; and see also
Palaborwa Mining Co Ltd v Cheetham &
others
[2007] ZALAC 11
;
[2006] 6 BLLR 553
(LAC).
[10]
It is therefore my conclusion that the applicant
has failed to establish a good basis for the review and setting aside
of the award
made by the second respondent.
[11]
I accordingly make the following order:
[1] The application is
dismissed.
[2] The applicant is
ordered to pay the costs of the third respondent.
__________________________________
KS TIP
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
4 February 2010
DATE
OF JUDGMENT:
19 March 2010
FOR
APPLICANT:
Ms M Mjeza
of
SACCAWU
FOR
THIRD RESPONDENT:
Mr
X Matyolo
of
Perrott Van Niekerk Woodhouse Matyolo Inc