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[2010] ZALCJHB 10
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Bakone Minerals v Malubete NO and Others (JR1363/09) [2010] ZALCJHB 10 (21 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO JR 1363/09
In
the matter between:
BAKONE
MINERALS
Applicant
and
NANDU
MALUBETE N.O.
First
Respondent
COUNCIL
FOR CONCILIATION, MEDIATION
AND
ARBITRATION (CCMA)
Second
Respondent
FRANS
MAKGOPA & 1 OTHER
Third
Respondent
JUDGMENT
COETZEE
AJ:
Introduction
1. The Applicant, the
Employer, seeks to review and set aside an arbitration award dated 19
April 2009 in terms of which the Commissioner
found that the
dismissal of the Third Respondents (both are cited together as the
Third respondent) were procedurally and substantively
unfair and
ordered compensation to be paid to them.
2. The application is
unopposed.
Background and
Facts
3. There are factual
disputes as to whether the Third Respondents left of their own
accord, or were dismissed.
4. No disciplinary
enquiries were held.
5. The Applicant
(employer) denies that it dismissed the Third Respondents.
6. It is not the
Employer’s case that they deserted. The Employer contends
that for reasons of their own they decided
to leave their employment
with the Applicant.
7. The Applicant attacks
the arbitration award both in respect of the finding that the
dismissal was unfair and, in the alternative,
that the compensation
awarded equal to eight months’ wages is excessive.
Finding
8. I do not intend to
repeat the evidence and the grounds for review.
9. I am of the view that
it is clear from the record of the arbitration proceedings that only
one reasonable conclusion could be
drawn from the facts. That
conclusion is that the two employees had failed to discharge the onus
that they had in fact been dismissed.
10. If
required to I shall furnish my reasons for the order.
11. That
being the case there is no reason to refer the matter back for
arbitration before a different Commissioner.
Order
12. The
arbitration award issued on 19 April 2009 under case number: LP 4569
– 07 is hereby set aside.
13. It is
ordered that the Third Respondents were not dismissed by Applicant.
14. There is
no order as to costs.
____________________________
COETZEE
AJ
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
21
DECEMBER 2010
DATE
OF JUDGMENT:
21 December 2010
APPEARANCES:
FOR
APPLICANT:
S U Roeloffs
FOR
THE RESPONDENTS:
No appearance