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[2010] ZALCJHB 20
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Gage Specialists (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR1266/08) [2010] ZALCJHB 20 (22 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO JR 1266/08
In
the matter between:
GAGE
SPECIALISTS (PTY) LTD
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
MATTHEWS RAMOTSHELA
Second
Respondent
SYLVESTER
ZITHA
Third
Respondent
JUDGMENT
COETZEE
AJ:
Introduction
1.
Applicant seeks to have an arbitration
award awarding the Employee compensation reviewed and set aside on
the basis that no evidence
was presented to the Commissioner and that
the Commissioner, therefore, could not have made any finding.
The
facts
2.
According to the arbitration award, the
Commissioner repeatedly advised the Employer representative of a
failure to present any
oral evidence, especially in the light of the
Employee’s denial of the allegations levelled against him.
3.
The Employer stated repeatedly that it was
not calling any witnesses to substantiate its allegations of fairness
relying upon a
bundle of documents it wished to present to the
Commissioner.
4.
While the arbitration award is silent on
this issue, the Employer contends that its representatives wished to
hand up a bundle of
documents containing the records of the
disciplinary enquiry, but that the Commissioner refused to accept the
documentation without
the Employer leading any oral evidence.
5.
The Commissioner recorded that the Employee
also did not present any evidence.
6.
The Commissioner in the absence of evidence
by the Employer and the Employee held the dismissal to be unfair both
substantively
and procedurally.
7.
Applicant seeks to review the arbitration
award on two basis:
9.1
The Commissioner should have guided the parties to present evidence
on oath, which he allegedly
failed to do.
9.2
The Commissioner could not make any award in the absence of any
evidence.
Analysis
8.
A
Commissioner may conduct the arbitration in a manner that the
Commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with a minimum of legal formalities
[1]
.
9.
A
dismissal is unfair if the Employer fails to prove that the reason
for dismissal is a fair reason (in this case relating to conduct)
and
that the dismissal was effected in accordance with a fair
procedure
[2]
.
10.
The Commissioner may, therefore, once it is
established that there was a dismissal conclude that the dismissal
was unfair if the
Employer has failed to lead evidence to prove a
fair reason and a fair procedure.
11.
The Employer did not present any evidence
that it dismissed the Employee, and if so for what reason.
12.
The Employee also did not give any evidence
that he was dismissed.
13.
There is no record of any agreement between
the parties that the Employer had dismissed the Employee.
14.
In the absence of any evidence the
Commissioner could not conclude the fact of a dismissal.
15.
The award is one that a reasonable
Commissioner could not have made.
Order
16.
The arbitration award in case number
LP6863/07 dated 16 May 2008 is reviewed and set aside. The
dispute between the parties
is to be referred to arbitration before a
Commissioner other than Second Respondent.
____________________________
A
J COETZEE
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
22
DECEMBER 2010
DATE
OF JUDGMENT:
22 DECEMBER 2010
APPEARANCES:
FOR
APPLICANT:
RIKI ANDERSON
of
Riki Anderson Attorneys
FOR
THE RESPONDENT:
NO APPEARANCE
[1]
Section 138(1) of the Labour Relations Act
[2]
Section 188(1) of the LRA