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[2011] ZALCJHB 188
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Northam Platinum Mines v Shai NO and Others (JR 435/2008) [2011] ZALCJHB 188 (3 November 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN
JOHANNESBURG
Case No: JR
435/2008
In the matter between:
northam platinum
mines
First Applicant
and
P SHAI (
N.O.
)
First Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
Second Respondent
NUM obo P SENYATSI
Third Respondent
JUDGMENT
LAGRANGE, J
Introduction
Full
written reasons for the judgment and the order below will be filed by
7 November 2011. Below is a summary of my findings and
the order in
the matter.
Summary
of findings
The
arbitrator committed a number of reviewable irregularities in his
evaluation of the evidence, leading him to fail to consider
certain
evidence or to consider the weight to be attached to it.
He
also committed misconduct in relation to his duties as an arbitrator
to determine a dispute of fact which was highly material
to the
central findings he had to make.
Further,
his evaluation of the evidence was influenced by entertaining an
impermissible inference which no reasonable arbitrator
would have
considered.
For
these reasons the award stands to be reviewed and set aside.
In
substituting the arbitrator’s findings and award, an
evaluation of the evidence before the arbitrator leads me to
conclude
that, on a balance of probabilities the applicant did prove
that the third respondent decanted a sample and committed serious
misconduct by doing so because of the implications of inaccurate
sampling.
On
the question of the appropriate sanction, although I am mindful of
the third respondent’s considerable service, the fact
that he
was fully aware of his duties and responsibilities as a sampler and
the fact that he must have been aware of the serious
light in which
such misconduct was viewed, also having been previously charged with
the offence, it appears these factors had
no impact on his conduct
and there is no reason to believe he would rectify his behaviour if
he had merely been issued with a
final warning.
Consequently,
I cannot find that the third respondent’s dismissal was
unfair.
Order
In
the circumstances,
The
arbitration award of the first respondent issued on 17 March 2008
under CCMA case number LP 2308-04 is reviewed and set
aside.
The
findings of the arbitrator are substituted with a finding that the
third respondent’s dismissal was substantively
fair.
No
order is made as to costs
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 25 October 2011
Date
of judgment: 3 November 2011