About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 154
|
|
van der Westhuizen v Gold One Ltd, Modder Operations and Others (JR 1090/2011) [2012] ZALCJHB 154 (6 December 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case no: JR 1090/2011
In the matter between:
JOHANNES PETRUS DIEDERIK
VAN DER WESTHUIZEN
.............................................................................
Applicant
and
GOLD ONE AFRICA LIMITED,
MODDER EAST OPERATION
........................................................
First
Respondent
COMMISSIONER THABO SEKHABISA
...................................
Second
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
.................................................
Third
Respondent
Heard: 26 October 2012
Delivered: 06 December 2012
Summary: Review application- Commissioner failing to consider the
seriousness of the offence and whether the offence has resulted
in
the breakdown in the relationship between the parties.
JUDGMENT
MOLAHLEHI J
Introduction
This is an application to review and set aside the arbitration award
made by the second respondent (the Commissioner) under case
number
GAEK 4340/10, in terms of which the dismissal of the applicant was
found to have been for a fair reason and the dismissal
of the
applicant by the third respondent was accordingly confirmed.
The applicant has also applied for condonation for the late filing
of the Rule 7(A) notice. Having regard to the explanation
proffered,
I see no reason why condonation should not be granted.
Background facts
The applicant was charged with the assault of a fellow employee, Mr
Ciko, who at the time was a shop steward of the NUM. The
alleged
assault occurred at the shift manager’s office. According to
the applicant, Mr Ciko entered the shift manager’s
office
without knocking at the door. The applicant told Mr Ciko that they
were busy in the meeting upon which he (Ciko) approached
him
aggressively and enquired from the applicant whether he wanted to
assault him.
The applicant testified during the arbitration hearing that whilst
busy in the meeting with the mine overseer, Mr Ciko entered
the
office without knocking. He further testified that he placed his
hand on Mr Ciko’s, chest as he was entering the room
and
indicated to him that they were busy with a meeting. Ciko according
to the applicant only left the office after being told
do so by the
mine captain. He was thereafter informed a month and six days later
that he was dismissed for allegedly assaulting
Mr Ciko.
In relation to the notice to attend the disciplinary hearing, the
applicant stated that he was approached by Ms Mokoena who told
him
to go to the office to sign for the notice of the disciplinary
hearing. He refused to go and collect the notice as according
to him
the incident occurred more than a month ago at that stage.
The disciplinary hearing was accordingly conducted in the absence of
the applicant. The applicant was found guilty and dismissed
and the
subsequent internal appeal was also unsuccessful.
The applicant being unhappy with the outcome of the internal
disciplinary proceedings referred an alleged unfair dismissal
dispute to the CCMA which was, subsequent to failure of the
conciliation, arbitrated by the Commissioner.
Grounds for review
The applicant has raised several grounds of review which is not
necessary to repeat in this judgment as in my view the crucial
issue
in this matter is whether the decision of the Commissioner, was
reasonable or otherwise. In broad terms, the applicant
contends that
the arbitration award is reviewable because the Commissioner
committed a gross irregularity in the conduct of the
proceedings,
exceeded his powers and that the decision he reached was
unreasonable.
The arbitration award
The Commissioner, in his analysis of the evidence which was before
him, found that the applicant was paraded on 11 November 2010
and
further that he was issued with the notice to attend the
disciplinary hearing on 12 November 2010 by Ms Mokoena. The
Commissioner
further found that the applicant was aware of the time,
date and venue where the disciplinary hearing would take place.
As concerning the assault, the Commissioner found that the applicant
did not dispute having grabbed Mr Ciko by his clothes and
pushed him
against the wall whilst he (Ciko) was trying to resolve the dispute
on behalf of another employee. In this respect,
the Commissioner
accepted the version of Mr Ciko and found that he (Ciko) was
assaulted by the applicant. It was for this reason
that the
Commissioner found the dismissal of the applicant to have been for a
fair reason.
Points
in limine
The third respondent has raised two points
in limine.
The
applicant did not pursue the second point. The first point concerns
the
locus standi
of the deponent to the founding affidavit
which, in my view, is in sustainable. The third respondent contends
that there is no
proof that the applicant was authorised to attest
to the founding affidavit. The issue of
locus
standing of a
person attesting to a founding affidavit received attention in this
Court in the unreported matter in
Prime Media v Mchunu.
1
In answering the same question as is the case in the present
instance, the court quoted with approval the decision of the Supreme
Court of Appeal in the matter of
Games and Another v Telkom
Namibia
2
where it was held that:
‘
[19]
…The deponent to an affidavit in motion proceedings need not
be authorised by the party concerned to depose to the affidavit.
It
is the institution of the proceedings and the prosecution thereof
which must be authorised. In the present case the proceedings
were
instituted and prosecuted by a firm of attorneys purporting to act on
behalf of the respondent. In an affidavit filed together
with the
notice of motion a Mr Kurz stated that he was a director in the firm
of attorneys acting on behalf of the respondent and
that such firm of
attorneys was duly appointed to represent the respondent. That
statement has not been challenged by the appellants.
It must,
therefore, be accepted that the institution of the proceedings were
duly authorised. In any event, rule 7 provides a procedure
to be
followed by a respondent who wishes to challenge the authority of an
attorney who instituted motion proceedings on behalf
of an applicant.
The appellants did not avail themselves of the procedure so
provided.’
Evaluation
It is common cause that Ms Mokoena approached the applicant and
informed him that there was a notice for him to attend a
disciplinary
hearing, and required him to sign for at some office.
The applicant refused to go and sign for the notice because as
stated earlier
he contended that the incident for which he was been
charged for had occurred more than a month ago. He conceded during
cross
examination that he was fully aware of the incident for which
he was required to sign the disciplinary notice for.
The applicant contended firstly that he was not paraded in terms of
the policy of the respondent and secondly he disputed that
he was
served with the charges on the day he was approached by Ms Mokoena.
Initially Ms Mokoena stated that she had paraded the applicant, but
later conceded that the applicant was not paraded and that
is why
she approached him to hand the notice of the disciplinary hearing.
This in my view placed the credibility of the testimony
of Ms
Mokoena into questioning to the issue of whether the applicant
received a proper notice to attend the disciplinary hearing.
It would appear from the reading of the record that Ms Mokoena
presented conflicting versions in relation to the issue of whether
she did serve the notice of the disciplinary hearing and also
whether she had paraded the applicant. The Commissioner accepted
her
evidence without dealing with these contradiction which was an
important aspect in as far as the procedural fairness was
concerned.
In my view, the Commissioner ought to have rejected Ms Mokoena’s
version with regard to these two issues. It seems to me
that on the
facts and the circumstances of this case the applicant should have
been paraded, at least so that he was made aware
that the
disciplinary hearing would proceed without him. I say this on the
basis that Ms Mokoena told him about the disciplinary
hearing
verbally and also that he was never paraded. In other words, even if
the requirement for convening a disciplinary hearing
was to be
disregarded, the minimum requirement that the respondent ought to
have met to satisfy the standard of fairness was
to have called the
applicant on the day of the hearing and informed him that the
disciplinary hearing would proceed without him.
In this regard, it
was not disputed that on the day of the hearing the applicant was
present at work.
The complainant never answered the question as to why was his
complaint not lodged within 48 hours after the incident. The essence
of this question as I see it is if indeed the complainant regarded
the alleged incident that happened to him as serious, why
did it
take him so long to lodge his complaint. It would appear from the
record of the proceedings that it was common cause that
the report
about the assault was made more than a month after it occurred. The
explanation for the delay in reporting or instituting
the
disciplinary proceedings was crucial because that goes not only to
the procedural aspect of reporting the incident but to
how serious
the complainant regarded the incident itself. The delay in
instituting the disciplinary hearing also has a bearing
and ought to
have been taken into account by the Commissioner in considering the
impact that the incident had on the relationship
between the
parties. It is not clear from the record as to what date did the
complainant lodge his complaint. It would appear
from his answers
during cross examination that the complaint was reported sometime
after the occurrence of the incident. There
is no evidence from the
respondent as to why it took so long to institute the disciplinary
proceedings.
The above facts are also important and ought to have been taken into
account by the Commissioner in determining whether the dismissal
was
an appropriate sanction. It is apparent from the reading of the
arbitration award that the Commissioner failed to consider
whether
on the facts and the circumstances of this case the dismissal was an
appropriate sanction. The Commissioner failed also
to determine
whether the relationship between the parties had irretrievably
broken down.
In my view, the only reasonable inference to be drawn from the above
analysis is that the first respondent did not regard the
incident as
serious enough to warrant prompt attention. It, therefore, follows
that the offence could not have been regarded
by the first
respondent as serious enough to warrant a dismissal because if it
did then the attention to it would have been prompt.
In other words,
the offence was not serious enough to break down the employment
relationship between the parties. In fact, except
for mentioning
that the relationship between the parties had broken down during the
closing submission by the representative
of the respondent there is
no evidence presented by the respondent in this regard.
In light of the above analysis, I am of the view that the applicant
has made out a case warranting interference with the arbitration
award on review. I am, further, of the view that it would not be in
the interest of expeditious resolution of this dispute to
remit it
back to the CCMA. There is sufficient material before this court to
assist in determining the matter. I also do not
see why costs should
not be allowed to follow the results.
Order
In the premises, the following order is made:
The arbitration award made by the second respondent under case
number GAEK 4340/10, is reviewed and set aside.
The arbitration award is substituted with the following order:
The dismissal of the applicant, Mr Van Der Westhuizen, was both
substantively and procedurally unfair.
The respondent, Gold One Africa, Modder East Operations is ordered
to reinstate the applicant without loss of benefit and
with back
pay to the date of the dismissal.
________________
Molahlehi J
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant: Mr J C M Roets of Roets & Du Plessis Attorneys
For the Respondent: Mr I D Gwaunza of Edward
Nathan Sonnenbergs
1
Case
no: JR 157/2011
2
2004
(3) SA 615
(SCA) at para 19.