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[2013] ZALCJHB 106
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Urban Africa Security CC v Nkadimeng and Others (JR 2291/09) [2013] ZALCJHB 106 (15 March 2013)
REPUBLIC OF SOUTH AFRICA
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable/
Not Reportable
Case
No JR 2291/09
In
the matter between:
URBAN AFRICA
SECURITY CC
..................................................................
Applicant
and
COMMISSIONER
DONALD KGALAKE NKADIMENG
......................
First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
.........................................................
Second
Respondent
SATAWU obo
KENNETH NGOBENI
..............................................
Third
Respondent
Heard: 16 January 2013
Delivered: 15 March 2013
JUDGMENT
CHAVOOS,
AJ
Introduction
[1]
This is an application for review in terms of
Section 145
of the
Labour Relations Act, 66 of 1995
, as amended, (“the LRA”)
to review and set aside an arbitration award of Commissioner S K
Nkadimeng (“the Commissioner”)
under case number
LP7398/08 dated 16 August 2009 handed down under the auspices of the
Commission for Conciliation, Mediation
and Arbitration (“CCMA”).
[2]
Both the Third Respondent and Applicant submitted applications for
condonation for the late filing of their answering and
supplementary
affidavits respectively and have consented to the late filing of the
aforementioned affidavits being condoned.
Background
Facts
[3]
The following facts are common cause:
3.1.
Kenneth Ngobeni (“Ngobeni”) commenced employment with
the Applicant on 1 May 2000 as a security officer at Tzaneng
Mall in
Tzaneen where the Applicant was contracted to provide security
services.
3.2.
He was a shop steward for SATAWU who have brought this Application
on his behalf.
3.3.
Ngobeni was charged and dismissed for gross misconduct in respect of
an incident that occurred on 13 November 2008 at the
Edgars store.
More specifically, the Third Respondent was charged with the
following:
‘
Gross
misconduct that brought the name of the employer in gross disrepute
with the client in that you on 13 November 2008 in full
uniform,
left or deserted your post at Tzaneng Mall and illegally without
permission entered Edgars and paraded on the red carpet
like a model
on the ramp. You were also abusive to Edgars store manager and
threatened to report her after she confronted you
regarding your
misbehaviour and conduct.’
3.4.
He was subsequently dismissed for such gross misconduct and referred
his unfair dismissal dispute to the CCMA for adjudication.
3.5.
A pre-arbitration meeting was conducted in which the issues in
dispute were narrowed. It was agreed that the Commissioner
was only
required to determine the appropriateness of sanction, whether
Ngobeni had apologised for his misconduct and what effect
an apology
by him would have on the sanction (page 22 of the transcript,
paragraphs 5-10).
3.6.
The only issue recorded as being in dispute was whether Ngobeni
apologised to his employer for his behaviour which he admitted
was
not appropriate and brought the name of his employer into disrepute
(page 7, paragraphs 15-20).
Evaluation
[4]
The critical part of the Commissioner’s findings appear in
paragraph 6.10 of his award where he finds that the employer
had
over-reacted by dismissing Ngobeni for refusing to apologise for his
alleged rudeness.
[5]
I asked Mr Mphepya, the attorney acting on behalf of the Third
Respondent to address me on the Commissioner’s reasoning
contained in paragraphs 6.8 to 6.10 of the Commissioner’s
arbitration award, which appeared to be a complete misdirection,
the
employee having been dismissed for gross misconduct as contained in
the charge sheet.
[6]
He was unable to defend the Commissioner’s reasoning and Mr
Mphepya to his credit, conceded that the Commissioner was
bound by
the common cause material facts that were placed before him,
misconstrued the nature of the enquiry and failed to deal
with the
material issues that were not placed in dispute rendering the award
susceptible to review.
[7]
Whilst the issue of the apology was placed in dispute, this was not
the reason why Ngobeni had been dismissed. The Commissioner
in
misunderstanding the true nature of the enquiry namely whether
Ngobeni had indeed furnished the Applicant with an apology
and if he
did, what effect such an apology should have on the sanction,
committed a procedural irregularity in the proceedings.
[8]
it is well established that where a commissioner fails to have
regard to material facts placed before him, such process-related
conduct by the commissioner constitutes a gross irregularity in the
conduct of the arbitration proceedings because the commissioner
would have failed in his duties in allowing an aggrieved party from
having its case fairly determined. This principle has been
well
articulated by Van Niekerk J in
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others.
1
[9]
Mr Mphepya conceded that the arbitration award should be reviewed
and set aside but argued that it ought to be remitted back
to the
CCMA before a different commissioner for determination on the
fairness of the sanction.
[10]
Mr Mphepya argued that no evidence on sanction or the breakdown of
the trust relationship was led at the arbitration proceedings
and
having regard to the Supreme Court of Appeal decision in
Edcon
Limited v Pillemer NO. and Others
2
which dealt with the failure of an employer to call a witness to
testify on the breakdown of the employment relationship, I did
not
have sufficient evidence on the record to substitute the CCMA’s
finding with one ordering that the dismissal of the
employee was
fair.
[11]
Mr Matthee, on behalf of the Applicant, could not, save for the
closing submissions of Mr Botha the company representative,
point to
any portion of the record where evidence dealing with the breakdown
of the trust relationship or operational risk to
the business in
justification of the sanction imposed had been adduced. He however
contended that the offence in itself namely
a desertion by a
security officer of his post constituted gross misconduct which
could not be condoned and as a consequence thereof
it was
appropriate for me to substitute the Commissioner’s finding
with one that the dismissal of the Third Respondent
was
substantively fain
[12]
I am not in agreement with Mr Matthee on this point. The Applicant
is fortunate to get a second bite at the cherry considering
that it
had led no evidence on the justification of sanction when this was
precisely the issue that the Commissioner was required
to determine.
I am in no position, sitting as a Judge of review to substitute the
Commissioner’s finding with one that
the dismissal of the
Third Respondent was substantively fair given that no evidence on
this aspect had been addressed at the
arbitration. Fairness dictates
that the issue of sanction be remitted back to the CCMA for
adjudication.
[13]
In the premise, I make the following order:
13.1.
The late filing of the Third Respondent’s answering affidavit
is condoned;
13.2.
The late filing of the Applicant’s supplementary affidavit is
condoned;
13.3.
The arbitration award of Commissioner Donald Kgalake Nkadimeng is
hereby reviewed and set aside and remitted back to the
CCMA before a
different commissioner.
13.4.
There is no order as to costs.
Chavoos,
AJ
Acting
Judge of the Labour Court
APPEARANCES:
For
the Applicant: Johann Matthee
For
the Respondent: Frans Mphepya of Mabaso Attorneys
1
[2009]
11 BLLR 1128
(LC).
2
[2009]
30ILJ 2642 (SCA).