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[2010] ZALCCT 14
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Holdenstedt Agricultural Production (Pty) Ltd v Commissioner De Vlieger-Seynaeve and Others (C573/08) [2010] ZALCCT 14 (28 May 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN CAPE
TOWN
NOT
REPORTABLE
CASE
NO: C 573/08
IN
THE MATTER BETWEEN:
HOLDENSTEDT
AGRICULTURAL PRODUCTION
(PTY)
LTD APPLICANT
AND
COMMISSIONER
I DE VLIEGER-SEYNAEVE 1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION 2
ND
RESPONDENT
PIETER
DU
TOIT 3
RD
RESPONDENT
JUDGEMENT
CHEADLE
AJ
INTRODUCTION
[1]
The applicant farms fruit. It employed the
3
rd
respondent as its estate manager. He was dismissed for breach of
trust in that he allowed another employee to sell reject plums
(also
referred to as prunes) at a secret profit; that he participated in
the sale of the plums and the profit from that sale; and
that he
destroyed evidence implicating him.
[2]
He referred a dispute over his dismissal to
the CCMA on grounds of both procedural and substantive fairness.
After conciliation
failed, the 1
st
respondent arbitrated the dispute and found the dismissal to be both
procedurally and substantively unfair. Because the applicant
did not
want to be reinstated, the 3
rd
respondent was awarded compensation equal to 9 months wages.
[3]
The applicant seeks to review and set aside
the award on grounds that the 1
st
respondent: failed to apply her mind to the facts proved; made
findings without any factual basis or any rational relation to the
facts; and was biased.
[4]
Two bundles were indexed and paginated. The
first bundle consisted of the pleadings and is referred to in the
judgement as PB. The
second bundle is the record comprising the
transcript of the arbitration hearing and documents supplied by the
second respondent.
It will be referred to as RB. The page number in
each bundle will follow immediately and after that the number of the
paragraph
or line. Accordingly the grounds of review referred to
above are at PB7.8.
[5]
The applicant was represented by Mr Loots
and Mr Nel represented the 3
rd
respondent.
Outline
of the facts
[6]
It is necessary to describe the individuals
involved and their roles. The executive director of the applicant was
a Mr Reenen Potgieter,
who is the son-in-law of another director, a
Mr Erlo Ringelman. The senior managers were the 3
rd
respondent who was the estate manager and Mr Lotter who was the
production manager. There were two assistant managers: a Mr Van
Westerhuizen who reported to the 3
rd
respondent and a Mr Galant who reported to Mr Lotter. A Ms Zeeman was
an administrative clerk with one of her tasks being responsibility
for the delivery book. Ms Van Rooy, who was the common law wife of Mr
Van der Westerhuizen, was employed on the farm. All, except
Mr
Lotter, testified in the arbitration hearing.
[7]
Because the different names used in the
documentation in respect of these individuals, it is necessary for
understanding the transcript
and the documents that the various
aliases are identified. They have been usefully set out in full by
the parties in Exhibit A.
For the purpose of understanding this
judgement in relation to the documentation, I list the following
names and aliases:
Mr
Potgieter
, the executive director of
the applicant (Rhyno, Rheeder, Rheenen)
Mr
Ringelman
, a director of the applicant
(Engelman, Skoonpa, Avril, Rihaan, Arlo, Erlo, Immelman, Hogerman,
Oubaas, Argo and Erna)
Mr
Du Toit
, the 3
rd
respondent and estate manager (Dieter, Pieter, and Piet)
Mr
Lotter
, the production manager (Jannie,
Luttig, Jan)
Mr
Galant
, an assistant manager (Arrie,
Allie, Alli)
Mr
Van der Westhuizen
, an assistant
manager (Dawid, Dawid Rooi, Rooi)
Mrs
van Rooy
, wife of Mr Van der Westhuizen
(Martha, Mrs Rooi)
[8]
In early 2008, Mr Van der Westhuizen
noticed that reject prunes were being thrown to the baboons. He saw
an opportunity to make
extra money and raised the possibility of
buying the plums from the applicant and selling them for a profit to
hawkers at a meeting
at which Mr Ringelman, Mr Lotter, the 3
rd
respondent, and Mr Galant were present. According to Mr Van der
Westerhuizen, the 3
rd
respondent and Mr Galant, who all gave evidence at the arbitration,
it was agreed that he could buy the reject prunes at a price
to be
fixed by Mr Lotter for the purpose of selling on to hawkers.
[9]
On the basis of this agreement, Mr Van der
Westerhuizen commenced selling the reject prunes for a profit and
paying the applicant
the fixed price and the staff for doing overtime
work. The 3
rd
respondent assisted in the negotiations and the logistics and as a
result shared in the profits.
[10]
After learning from Mr Ringelman late in
late February or early March that Mr Van der Westerhuizen was earning
a profit from the
sale of the reject prunes, Mr Potgieter asked for
reports from the 3
rd
respondent, his wife (who also works on the farm) Mr Lotter, and Mr
Van der Westerhuizen. A report prepared by the 3
rd
respondent, Mr Lotter and Mr Van der Westhuizen states that it was
common knowledge that Mr Van der Westhuizen had been given permission
to sell the reject prunes for profit. It was common cause that Mr
Lotter’s view was that he knew that Van der Westhuizen
was
allowed to sell a batch of the reject prunes for a profit but did not
know whether that was the case in respect of future batches.
[11]
A comparison between the moneys paid to Ms
Zeeman and the amounts reflected at the back of the delivery book in
the 3
rd
respondent’s office revealed that the Mr Van der Westerhuizen
was selling the prunes for a profit. The pages of the delivery
book
were subsequently removed but only after they had been copied.
[12]
The reports and the removal of the pages of
the delivery book led to the 3
rd
respondent’s suspension. He was then charged with breach of
trust in respect of: the unlawful confiscation of moneys belonging
to
the farm; allowing an employee to sell prunes for a secret profit;
failing to give a full disclosure and the hiding or removal
of
relevant evidence; and undermining the applicant by encouraging
employees to leave its employ.
[13]
On 27 March, the disciplinary hearing was
held. Mr Potgieter conducted the hearing despite the 3
rd
respondent’s objections as to his bias. The 3
rd
respondent was found guilty of the first three charges and dismissed.
[14]
An important cluster of facts that weighed
with the 1
st
respondent in her reasons for the award is as follows:
14.1
Mr Lotter had resigned at the end of
February. As a result Mr Potgieter asked whether the 3
rd
respondent was interested in taking on the functions of production
manager in a new position, which combined this function with
his
current functions as estate manager. Although there is a divergence
between Mr Pogieter’s testimony and that of the 3
rd
respondent as to what was said in response to the offer, it was
common cause that Mr Potgieter said that he had to discuss the
offer
with Mr Ringelman and that there had to be agreement on a salary
package. (PB 41.10 and 46.42)
14.2
When Mr Potgieter told Mr Ringelman of his
offer to the 3
rd
respondent of the combined position of estate and production manager,
Mr Ringelman objected. (PB 41.11)
14.3
Soon thereafter a new production manager
was appointed. (PB 48.54)
14.4
Ms van Rooi testified that Mr Ringelman had
asked her and her husband to help him to get rid of the 3
rd
respondent. (PB 50)
The
award
[15]
The 1
st
respondent in her award carefully recorded the relevant evidence and
analysed it applying the guidelines for misconduct disputes
in the
Code of Good Practice on Dismissal.
Unlawful
appropriation of money due to the farm
[16]
She finds that Van der Westhuizen was given
permission to sell the prunes for profit. She bases this conclusion
on the following:
16.1
Mr Ringelman’s testimony that he
agreed to allow Mr Van der Westhuizen to buy the reject plums and
sell then instead of throwing
them away and offered him cardboard
boxes to pack them (PB 51.72). Although Mr Ringelman said this
agreement was on a once off
basis, the applicant accepted that Mr Van
der Westhuizen legitimately thought that he had agreed on a
continuing basis.
16.2
The testimony of Mr Van der Westhuizen, Mr
Galant and the 3
rd
respondent to the effect that they were, together with Mr Ringelman,
present at the meeting at which Mr Van der Westhuizen was
given
permission to sell prunes at a profit but bought from the farm at a
price to be fixed by Mr Lotter. (PB 51.72 to 53.75)
16.3
Mr Ringleman’s testimony was that,
although he did not hear the discussion on the sale at the meeting
with the other managers,
he could not contest that it had occurred
because he was hard of hearing and wore a hearing aid. (PB 51.72)
16.4
Mr Ringelman’s testimony that he
asked Mr Van der Westhuizen on 14 January if he was still making a
commission. (PB 52.73)
16.5
The fact that despite knowing that Mr Van
der Westhuizen was making a profit on the sale of the prunes, he only
raised it with Mr
Potgieter in early March. (PB 52.73)
16.6
Mr Van der Westhuizen conducted the
loading, transporting and sale of the plums in an open manner. (PB
52.73)
16.7
There was no policy in respect of the sale
of reject prunes. Although the 3
rd
respondent had been involved in the sale of reject prunes on behalf
of the farm the year before, it was no longer his responsibility
but
that of the production manager, Mr Lotter (P52.74) and Mr Ringelman
had given permission to sell the reject prunes.
[17]
She also finds that the difference between
the fixed price and the amount paid for the prunes was the profit
earned on the sale
(PB 52.75). She comes to this conclusion on the
following facts:
17.1
Mr Potgieter testified that the only loss
suffered was the loss in the commission earned by Van der
Westerhuizen.
17.2
The schedule provided by the 3
rd
respondent shows that all crates were returned, that all money in
accordance with the fixed price arising from the sale was paid
to the
applicant and that all who were involved were reimbursed.
[18]
Because of her findings that Van der
Westhuizen was entitled the profits of the sale by virtue of this
agreement with the applicant
represented by Mr Ringelman and its
senior management, the 1
st
respondent found that the 3
rd
respondent did not unlawfully appropriate money due to the farm.
Allowing
a junior manager to sell prunes for a profit
[19]
The applicant claimed that as a senior
manager he should have known that Mr Van der Westhuizen’s
conduct was unacceptable
for being in conflict of interest (PB
53.76). The 1
st
respondent concluded that the 3
rd
respondent was not guilty of this charge for the following reasons:
19.1
The sale of the prunes was the
responsibility of Mr Lotter, who fixed the price.
19.2
The 3
rd
respondent was also at the meeting with Mr Ringelman when it was
agreed to permit Van der Westhuizen to sell the reject prunes
and
accordingly, like Mr Van der Westhuizen, under the impression that it
was permissible to sell the prunes for profit.
19.3
There was no conflict of interest because
the applicant suffered no loss. The applicant could not claim the
profit made by Mr Van
der Westerhuizen was at the detriment of the
applicant because that was the way in which the agreement was
structured. Employees
would not go to such trouble after hours if
there was no reward for doing so.
19.4
Van der Westerhuizen and the 3
rd
respondent were found to be honest and credible witnesses, both had
submitted a full report on being asked to do so and any secretiveness
between the 3
rd
respondent and the directors of the applicant was because they had
already made up their minds to have him dismissed and replaced.
Failing
to make a public disclosure and removing evidenc
e
[20]
The 1
st
respondent concluded (PB 53.77) that the 3
rd
respondent was not guilty of this charge for the following reasons:
20.1
The 3
rd
respondent sent a report to Mr Potgieter within a day of being asked
to do so;
20.2
the 3
rd
respondent assumed that the decision to dismiss and replace him had
already been taken for the following reasons:
20.2.1
Both Mr Van der Westhuizen and his wife
(who remained working on the farm) confirmed having advised the 3
rd
respondent that Mr Ringelman had asked them to assist him in getting
rid of the 3
rd
respondent.
20.2.2
The 3
rd
respondent knew that the Mr Ringelman was opposed to the 3
rd
respondent being appointed to the new position of estate/production
manager.
20.2.3
Although a new manager was to start on 1
April, it was likely that he was recruited and appointed before the
3
rd
respondent’s disciplinary enquiry on 27 March.
20.3
There was insufficient evidence to find
that the 3
rd
respondent was the person responsible for the removal of the pages
recording the deliveries at the back of the delivery book kept
in the
3
rd
respondent’s office. There were others involved who had an
interest in the removal of the pages.
Inconsistent
treatment
[21]
The 1
st
respondent concluded that there was inconsistent treatment (PB 54.78)
– Mr Lotter was not disciplined and Mr Van der Westhuizen,
while disciplined, was not dismissed while the 3
rd
respondent was. She rejected the applicant’s argument that the
trust relationship between it and Mr Van der Westhuizen had
not been
breached because he had confessed everything immediately, he was
under the impression that he had done nothing wrong;
and that he did
not hide evidence for the following reasons:
21.1
The 3
rd
respondent was also under the impression that there was nothing wrong
with the arrangement. Mr Ringelman, a director, was aware
of it and
had done nothing to stop it.
21.2
The 3
rd
respondent promptly gave a report on being requested to do so.
21.3
There was no proof that the 3
rd
respondent hid evidence or removed the pages from the delivery
book...
Procedural
fairness
[22]
The 1
st
respondent rejects various procedural challenges based on compliance
with the applicant’s disciplinary code (PB 55.82). But
she
finds that there was bias on the part of the chairperson of the
disciplinary enquiry (PB 55.83) for the following reasons:
22.1
Because Ringelman threatened to pay out his
shares if Mr Potgieter appointed the 3
rd
respondent to the new position – a statement that Mr Potgieter
did not contest – he had an interest to dismiss the
3
rd
respondent.
22.2
The evidence of Mr Van der Westhuizen and
his wife was that Mr Ringelman wanted to get rid of the 3
rd
respondent.
22.3
The uncontested evidence that a new manager
had been appointed and introduced to the staff as the new manager
before the disciplinary
hearing.
22.4
He accepted Mr Van der Westhuizen’s
evidence that he did not remove the pages from the delivery book but
did not accept the
3
rd
respondent’s denial.
22.5
Mr Potgieter after being asked to recuse
himself on grounds of bias failed to do so when he could have simply
postponed the hearing
and appointed another chairperson to ensure
that the hearing was conducted in a fair manner.
The
Applicant’s grounds of review
[23]
As is often the case in reviews of this
nature the applicant refers to general grounds of review without ever
specifically addressing
them . In paragraph 8 of his founding
affidavit (PB 7-8), Mr Potgieter states that the grounds for
reviewing the award ‘include’
namely that the 1
st
respondent:
23.1
failed to apply her mind to the facts
proved;
23.2
made findings without any factual basis for
those findings;
23.3
displayed significant and unwarranted bias
towards the applicant;
23.4
made findings and an award not rationally
connected to the proved facts.
[24]
This non-exhaustive list of abstract
grounds is tenuously linked to the specific grounds pleaded in the
founding affidavit. Those
grounds are identified in paragraphs 14 to
18 of that affidavit (PB 9-13) and then intermittently raised in a
paragraph by paragraph
attack on the 1
st
respondent’s reasons, making it very difficult to discern
precisely what the applicant’s case on review is, particularly
since so many of the attacks are those that would fit better with an
appeal rather than a review. It is a shotgun approach to review,
which unnecessarily calls upon the other parties and the court to
engage with issues that may not be relevant to review. Rather
than
address each and every attack, I deal only with the grounds
specifically raised in the applicant’s heads of argument
and
any necessary ancillary issues.
[25]
Each of these grounds are summarised and
dealt with below.
Substantive
fairness (conflict of interest)
[26]
In paragraph 14 of the founding affidavit
(PB 9-11) and paragraphs 14 to 17 of the applicant’s heads of
argument, the applicant
contends that the 1
st
respondent misdirected herself in failing to recognise-
26.1
the common law principle that an employee
may not advance his personal financial affairs at the expense of his
employer;
26.2
that the 3
rd
respondent made a personal and undisclosed profit from the sale of
his employer’s produce;
26.3
that there was a policy dealing with the
sale of produce as a matter of fact (the practice of the year before)
and of law (the common
law duty of an employee not to misappropriate
the employer’s profit from the sale of produce).
26.4
that there was no harm in an employee
exercising entrepreneurial skills to the prejudice of the employer.
[27]
But the 1
st
respondent did not need to consider the common law principles
relating to conflict of interest because she found as a matter of
fact that the applicant’s management had agreed (or had given
the impression that it had agreed) to allow the sale of the
prunes
for profit. Although the applicant makes heavy weather of her finding
that there was no policy in place, that finding is
only one among
several that led the 1
st
respondent to her conclusion that there was such an agreement. But
even if there was such a policy, it could be overridden by agreement,
which is what happened on the applicant’s own version when Mr
Ringelman permitted a once-off sale for profit. The 1
st
respondent’s finding that there was an agreement dispenses with
the other alleged misdirection’s.
[28]
In an unrelated attack in paragraph 17 of
the affidavit (PB 12-13) and paragraph 22.1 of the applicant’s
heads of argument,
the 1
st
respondent is charged with making a ‘glaring error’ in
failing to apply her mind to the facts by equating Mr Ringelman’s
presence at the meeting at which the sale of the prunes was discussed
with his and Mr Potgieter’s consent to the making of
a secret
profit – ‘a completely irrational jump in logic’.
In paragraph 18 she is accused of paying ‘scant
attention’
to whether as a matter of fact the required consent of the directors
had been obtained. Because these challenges
are related to the
sustainability of her finding that there was an agreement to allow
the sale of the plums I deal with the attacks
here.
[29]
Firstly
,
it is quite unfair to label her analysis of the implications of Mr
Ringelman’s presence as
equating
to consent.
Secondly
if there is any irrational jump in logic it is the proposition that
her finding of an agreement to sell prunes for profit was consent
to
make a
secret
profit.
Thirdly
,
all those at the meeting (other than Mr Ringelman) stated that the
sale for profit was discussed and agreed. The only difference
between
Mr Lotter, who did not give evidence, and the others, was that he
regarded the permission to be once off.
Fourthly
,
Mr Ringelman himself did not contest that the discussion took place –
he stated that he was hard of hearing.
Fifthly
,
Mr Ringelman’s testified that he agreed to allow Mr Van der
Westhuizen to buy plums and resell them for his own benefit
and that
he gave him cardboard boxes to pack them – albeit on Mr
Ringelman’s version that it was on a once off basis.
Sixthly
Mr Ringelman’s testimony was that he asked Mr Van der
Westhuizen at a later stage if he was still making a commission and
despite not being entirely satisfied with his answer, did nothing
about it until early March.
Finally
,
the packing, transporting, purchasing and sale of the prunes was done
openly. This analysis does not amount to a jump in logic.
It
demonstrates a careful and considered analysis of the evidence
presented. She analysed the evidence and came to the conclusion
in a
manner that a reasonable decision maker would. These grounds of
review are accordingly without merit.
Substantive
fairness (failure to disclose and removing evidence)
[30]
The Applicant contends in paragraph 14.3
read with paragraph 17.2 of the founding affidavit (PB10 and 12) that
the 1
st
Respondent’s finding that there was ‘no evidence’
to prove that the 3
rd
respondent removed the pages from the delivery book constitutes a
‘startling failure to consider the facts’ and the
imputation that there were others who had an interest in removing the
pages was ‘irrational as having no connection with
the facts’
and ‘defamatory and offensive’ in so far as it included
Mr Potgieter and Mr Ringelman. It should be
borne in mind that she
came to this conclusion in the context of the following uncontested
facts: copies were made of the pages
and the 3
rd
respondent readily admitted to Mr Potgieter that the handwriting on
those pages were his.
[31]
Dealing with the attack that the 1
st
respondent failed consider the facts in making the finding that there
was ‘no evidence’ to prove that the 3
rd
respondent removed the relevant pages, it is noteworthy that the 1
st
respondent did not find that there was ‘no evidence’ but
that there was ‘
not enough
’
evidence to prove that the 3
rd
respondent removed the pages (PB 54.77). It is also worth noting that
the applicant fails to identify the facts ‘not taken
into
account’. In paragraph 42.4 of his affidavit (PB 30) where Mr
Potgieter deals specifically with this finding, he states
that ‘the
probabilities on the proven facts are overwhelming to the effect that
Du Toit tore them out’ without ever
identifying the proven
facts.
[32]
On the probabilities, she concludes
that there wasn’t enough evidence to find against the 3
rd
respondent. She goes on to say that any one of a number ‘could’
have removed the pages. It may be that the probabilities
may vary as
between them but that does not undermine her conclusion that there
was not enough evidence, on the probabilities, to
prove that the 3
rd
respondent was guilty of the charge. Another decision maker may come
to a different conclusion on the probabilities but that does
not
constitute grounds for interfering with the 1
st
respondent’s decision on review.
Procedural
fairness
[33]
The 1
st
respondent found that the dismissal was procedurally unfair because
the chairperson of the enquiry was biased (PB 55.83). He was
biased
she said because he had an interest in dismissing the 3
rd
respondent. That interest was found to have arisen because of Mr
Ringelman’s threat to pay out his shares if Mr Potgieter
appointed the 3
rd
respondent into the new position of estate/production manager. The
applicant contends that there was no evidence except Mr Du Toit’s
belated testimony to that effect when he gave evidence. It is clear
from both the evidence before her and the illogicality of the
reasoning that the 1
st
respondent misdirected herself in concluding that Mr Potgieter was
biased.
[34]
Firstly
,
the only evidence of the threat was the 3
rd
respondent’s testimony that Mr Van der Westhuizen had told him
of the threat.
Secondly
,
the 3
rd
respondent never put the threat to Mr Ringelman or Mr Potgieter when
they gave evidence.
Thirdly
,
he never puts the threat to Mr Van der Westhuizen. All that he does
is solicit testimony from his wife that Mr Ringelman told
them that
he wanted to get rid of the 3
rd
respondent (TB 148.9 – 149.2). Although he asks the same
question to Mr Van der Westhuizen, Mr Van der Westhuizen does not
definitively answer it (TB 150.4-13).
Fourthly
,
it is illogical to infer an interest to dismiss from a threat linked
to a proposal to appoint. The fact that Mr Ringelman, a co-director,
wanted to get rid of the 3
rd
respondent may constitute some basis for inferring that the applicant
wished to dismiss him but not a particularly strong one particularly
in the face of the uncontested evidence that Mr Potgieter was the
executive director and made the final decisions concerning staff.
[35]
The 1
st
respondent seeks to bolster her finding of bias by pointing to the
difference in Mr Potgieter’s findings concerning the tearing
out of the pages of the delivery book. She says that it is
unexplained. But Mr Potgieter does explain the difference – he
believed Mr Van der Westhuizen because he was open and a trustworthy
witness (TB 26). In his decision in the disciplinary hearing,
he
states that the 3
rd
respondent was in possession of the delivery book; he had (from Mr
Potgieter’s point of view) acted unethically and had not
been
open about the transactions (PB 57G). While the 1
st
respondent may come to a different conclusion, which she does, that
does not mean that Mr Potgieter was biased in coming to a different
conclusion.
[36]
The 1
st
respondent also finds that Mr Potgieter’s failure to recuse
himself because of his involvement and appoint an independent
person
to chair the enquiry as a factor in concluding that the dismissal was
procedurally unfair. There are two answers to this.
Firstly
,
the test is not the test under the law of criminal procedure but
simply whether the employees were given an opportunity to defend
themselves-in other words, the bias must be so palpable as to draw
the inference that the employees did not have that opportunity.
That
is what
Avril
Elizabeth Home
for the Mentally Handicapped v CCMA &
Others
[2006] 9 BLLR 833
(LC)
says.
Secondly
,
the Code does not require an employer to give up its power to make
the final decision to dismiss and accordingly it should not
be
interpreted in a manner that regards a failure to appoint an
independent person as unfair.
[37]
Accordingly, the 1
st
respondent misdirected herself in concluding that the dismissal of
the 3
rd
respondent was procedurally unfair. It was a decision that a decision
maker could not have reasonably made on the evidence before
her and
in the manner in which she reasoned.
The
appropriate order
[38]
Having decided to partially review and set
aside the 1
st
respondent’s award, the issue is whether the matter should be
referred back to the 1
st
respondent for a fresh decision or whether I should substitute the
decision with my own.
[39]
Both parties agreed that I should
substitute my decision if I decided to partially review the 1
st
respondent’s award. I am satisfied that I have all the evidence
before me to make such a decision and it is in the interests
of
justice and expeditious resolution of disputes for me to substitute
my decision for that of the 1
st
respondent.
[40]
That then raises the question of
compensation and the costs. In so far as compensation is concerned, I
am of the view that given
what the 1
st
respondent awarded for both substantive and procedural fairness, that
an award of 6 months would be appropriate.
[41]
In so far as costs are concerned, both
parties have been partially successful – the applicant in
respect of procedural fairness
and the 3
rd
respondent in respect of substantive fairness. In these
circumstances, it is appropriate that each party pay their own costs.
Order
[42]
The following order is made:
42.1
The 1
st
respondent’s award dated 7 July 2008 in CCMA Case No: WE
4964-08 is reviewed and set aside in respect of her decision on
procedural fairness and her award of compensation.
42.2
Paragraphs 88 and 89 of her award are
substituted with the following award:
“
88
The dismissal of the Applicant is unfair.
89
The applicant is awarded compensation of 6 months wages
Amounting to R94 800
(subject to taxes)’.
42.3
Each party to pay their own costs.
_____________________
CHEADLE
AJ
Date
of Hearing : 21/04/2010
Date
of Judgment : 28/05/2010
Appearances
For
the Applicant
: Adv
J.H Loots
Instructed by
: Marleen Potgieter Attorneys
For the
Respondent
: Adv A. Nel
Instructed
by
: Bloem Attorneys