About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 237
|
|
Matisabo v Commission for Conciliation Mediation and Arbitration and Others (J1031/10) [2011] ZALCJHB 237 (2 September 2011)
Not Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: j 1031/10
In the matter between:
MATISABO, JL
...............................................................................................
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
.....................................................
First
Respondent
RUSSEL
MOLETSANE
................................................................
Second
Respondent
SAB
(PTY) LIMITED & OTHERS
......................................................
Third
Respondent
Heard
:
2011-09-02
Delivered:
2011-09-02
_______________________________________________________________
judgment
_______________________________________________________________
GUSH J:
This is a review which dates back to 2003. The applicant was
dismissed on 25 November 2001. The applicant referred a dispute
concerning his dismissal to the first respondent on date which does
not appear from the papers. On 28 October 2002, the first
respondent
granted the applicant condonation and recorded that the ‘Reason
for not attending’ was that the applicant
‘did not
receive the set down notice’. Be that as it may be, the first
respondent issued a certificate of outcome
on 28 November 2002, the
applicant requested arbitration and the matter was arbitrated on 19
September 2003 and an award was
issued by the second respondent on
29 September 2003. The second respondent, in his award, found that
the dismissal of the applicant
was fair.
Thereafter, the applicant filed his application for review.
The matter has dragged on interminably for reasons which, in so far
as they are dealt with in the papers, are set out below.
The matter was first enrolled to be heard by this Court on 28
September 2006, when it was adjourned
sine die
. It was again
enrolled on 23 March 2007, on which date, neither the applicant nor
any person representing the applicant appeared.
The matter was
struck from the roll and the costs reserved and the applicant was
apparently instructed to provide an explanation
for his failure to
appear. The explanation was that his instructed attorney had not
come to court and that he had arrived late
after the matter had been
called and disposed of.
The matter was again enrolled for 22 December 2010, when the matter
was again adjourned this time to enable the applicant to
obtain
legal representation. The applicant was on this occasion ordered to
pay the respondent's wasted costs.
Today when the matter was called, the applicant indicated that due
to the ‘trickery’ of his newly appointed attorney,
he
was again not represented. The applicant indicated quite clearly
that he wished to proceed with the matter without his attorney
and
that he would represent himself. I took some time to explain to the
applicant what was required of him and stood the matter
down for him
to consider whether he indeed wished to proceed without
representation. The applicant insisted on the matter being
heard,
and confirmed that he wished the matter to be finalised today, and
that he intended to represent himself.
The merits of this matter which led to the applicant's dismissal are
very simple. The applicant was, according to the record
of the
arbitration, observed by third respondent's witnesses leaving a bar
or pub on the third respondent's premises with a six-pack
of Redds,
which is an alcoholic drink produced by the third applicant. The
applicant was not entitled to be in possession of
the Redds outside
the bar where the function was taking place. It was a contravention
against company rules and regulations to
be in possession of alcohol
outside the pub without permission.
The applicant was seen in possession of the Redds leaving the pub
and was chased by two security guards. Whilst running away,
he threw
the Redds into a garden bed, from whence the remains of the bottles
were recovered by the security personnel who had
seen him throwing
the six-pack away after they had apprehended the applicant.
The incident led to a disciplinary enquiry whereafter the applicant
was dismissed.
At the arbitration, the applicant was also unrepresented, but, as he
did today, indicated that he was satisfied that he would
represent
himself, and proceeded with the arbitration. The third respondent
led evidence surrounding the circumstances that had
given rise to
the applicant's dismissal, namely his possession of the alcoholic
drinks, his attempt to run away, his discarding
of the six-pack and
the recovery thereof, his apprehension and the disciplinary inquiry
that followed where he was dismissed.
In response to the charges and this evidence, the record reveals
that the applicant simply denied any knowledge of the incident
whatsoever inter alia that he denied that he was in possession of
the evidence viz the six-pack of Redds and that the witnesses
who
gave evidence regarding the incident were present. The applicant did
however admit that he was aware of the rule prohibiting
employees
being in possession of alcohol outside the pub without permission.
The applicant’s defence apart from his absolute denial of the
incident appeared to be based on an averment that as he was
not in
possession of the Redds at the time of his apprehension he could not
be guilty of any misconduct, or put another way:
unless you are
found in possession of the goods that you have stolen, you are not
guilty of theft. The applicant evidence was
that he did not know why
he had been dismissed. It was for no apparent reason.
The second respondent, (who is a senior commissioner of the first
respondent), found that the evidence of the third respondent’s
witnesses was probable and without contradiction and in the face of
the applicant’s bare denial accepted the version given
by the
third respondent. The second respondent concluded that the dismissal
of the applicant was accordingly substantively fair.
The founding affidavit filed by the applicant in this matter does
not establish grounds upon which it could be found that the
second
respondent’s award is reviewable. Where it is possible to
follow the applicants submissions the applicant fails
to point to
any part of the record or the award justifying his submissions. The
task is made even more difficult in that the
applicant has filed
what appears to be an incomplete record without any explanation.
The applicant did not raise any grounds of review in his argument.
The essence of the applicant's argument in support of his
application for review is that the second respondent should not have
found that he was guilty of the misconduct, and accordingly
did not
act in a justifiable manner in upholding his dismissal as having
been fair.
In argument today, the applicant simply confirmed what he had said
at the arbitration conducted by the second respondent viz
that he
denied any involvement at all in the incident and that he had
advised the commissioner and that the third respondent
had dismissed
him without any evidence at all.
The applicant, however, in addition explained at length the
circumstances surrounding the handing to him of the award, and made
certain averments regarding the second respondent’s supposed
lack of ability and the advice apparently given to him by
the first
respondent's staff.
The applicant in his address explained that he had left the first
respondent’s offices using instructions and directions
given
to him by the first respondent, and had proceeded directly to the
Court, where he lodged his application for review.
Whilst these averments take the matter no further, conspicuous by
its absence in the applicant's founding affidavit is any reference
to any of these issues that the applicant today raised in his
address to the Court.
Suffice to say that in matters of this nature, it is incumbent upon
an applicant to show that the award of the second respondent
is
reviewable for reasons set out in the provisions of section 145 of
the Labour Relations Act. Even allowing the applicant some
considerable latitude given that he represented himself the
applicant has not succeeded in doing so.
The award of the second respondent is not an award that a reasonable
decision maker could not have arrived at bearing in mind
the
evidence before him.
In the circumstances, the applicant's application for review does
not succeed and his application falls to be dismissed.
As far as costs are concerned, the applicant has already been
ordered to pay the costs of the adjournment on 22 December 2010.
It
is in the circumstances also appropriate for the applicant to pay
the costs of the adjournment on 23 March 2007.
I make the following order:
The applicant’s application is dismissed:
The applicant is ordered to pay the costs of the adjournment on 23
March 2007;
There is no order as to costs for today.
_________________________
GUSH J
JUDGE OF THE LABOUR COURT
APPEARANCES:
APPLICANT: In Person
THIRD RESPONDENT: Ms. Bronwyn Murray; Bowman Gilfillan Inc Attorneys