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[2010] ZALCJHB 27
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Hortons v Raffee NO and Others (JR1220/09) [2010] ZALCJHB 27 (26 October 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE
NO: JR1220/09
In
the matter between:
HORTONS Applicant
and
MOHAMED
RAFFEE N.O.
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
JOAN-ANN
OLIVIER
Third
Respondent
JUDGMENT
FRANCIS
J
1.
This is an application to review and set aside the first respondent’s
(the
commissioner’s) finding in an arbitration award in
awarding the third respondent R10 785.00 being the unpaid savings and
sheriff’s returns that the applicant had not paid to the third
respondent. The applicant does not challenge the commissioner’s
finding that the third respondent was not constructively dismissed.
2.
The third respondent was employed by the applicant on 14 March 2006
as a tracer
whose duties were to trace people and to verify
information for an attorney. She earned a commission of about
R10 000.00
per month. She resigned on 1 September 2008 with
notice with her last day of work being 30 September 2008. She
referred
a constructive dismissal dispute to the second respondent
(the CCMA). At the arbitration hearing she testified about her
ill-treatment whilst employed and that there was unpaid savings in
the sum of R5 000.00, outstanding commission on Telkom, ITC and
sheriff returns for no traces in the sum of R10 785.00. Her
evidence that the applicant owes her R10 785.00 was not challenged
during cross examination. The commissioner found in his award
that the third respondent’s evidence in that regard was
not
rebutted by the applicant. The commissioner’s finding in
this regard is supported by the handwritten notes of the
commissioner.
4.
The applicant felt aggrieved with the commissioner’s finding on
R10 785.00
and brought the review application. It contended
that the commissioner acted grossly irregular in ordering
compensation to
the third respondent in the absence of material
information about the employment circumstances under which the amount
was calculated
and decided on.
5.
The applicant’s ground of review is baseless. The
commissioner did
not award the third respondent any compensation.
As stated above the third respondent testified about what was due and
owing
to her. Part of the documents that she handed in at the
arbitration hearing was an invoice dated 29 September 2008 that
reflects
that R10 575.62 was due to her. Her evidence in this
was not challenged during cross examination.
6.
During oral submissions in Court, Ms Roeloffs who appeared for the
applicant
wanted to raise a new ground of review namely that the
third respondent did not in her referral to the CCMA indicate that
she was
also claiming the monies owed to her. She conceded that
this was not a ground of review and did not persist with it.
Even if she could raise a new ground of review, which she clearly
cannot, the applicant still faces a difficulty with the provisions
of
section 74(2) of the Basic Conditions of Employment Act 75 of 1997
(BCEA) which permits a commissioner to determine a claim
such as the
one that the commissioner dealt with in arbitration proceedings.
7.
The applicant has failed to prove that the commissioner acted grossly
irregular
in ordering that the third respondent be paid the sum of
R10 785.00.
8.
The application stands to be dismissed.
9.
There is no reason why the applicant should not pay the third
respondent’s
reasonable disbursements.
10.
In the circumstances I make the following order:
10.1
The application is dismissed.
10.2
The applicant is to pay the third respondent’s reasonable
disbursements.
_____________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE
APPLICANT
: S
ROELOFFS INSTRUCTED BY VOGEL MALAN ATTORNEYS
FOR THIRD
RESPONDENT
:
IN
PERSON
DATE OF
HEARING
: 22
OCTOBER 2010
DATE OF
JUDGMENT
: 26
OCTOBER 2010