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[2013] ZALCJHB 87
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Ngubeni v Maluti-A-Phofung Water (Pty) Ltd and Others (JR 623/12) [2013] ZALCJHB 87 (13 May 2013)
Not Reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
case
no: JR 623/12
In the matter between:
JABULANE SIMON NGUBENI
Applicant
and
MALUTI –A-PHOFUNG
WATER (PTY) LTD
First
Respondent
THE COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
Second
Respondent
COMMISSIONER MOKETE
SIDWELL MOLOI (
N.O.
)
Third
Respondent
Date: 13 May 2013
JUDGMENT ON LEAVE TO APPEAL
LAGRANGE, J
Introduction
The applicant in this matter has appealed against the judgment
handed down on 8 March 2013, in which I dismissed his review
application of an arbitration award dated 8 March 2010, in which his
dismissal by the third respondent was found to be substantively
fair. This application like his review, is unopposed by the third
respondent.
In perusing the judgement it has come to my attention that the case
number of the original judgement is incorrectly stated as
"JR
2812/10" whereas it should have been "JR 623/12", and
that paragraph [11] of the judgement incorrectly
refers to
“William”, which should have read “Viljoen”.
These patent errors are accordingly corrected.
The applicant’s application for leave to appeal is late but is
condoned.
Grounds of appeal
First ground of appeal
The applicant contends that the court failed to consider the fact
that some of the petrol receipts submitted in his claims did
not
bear his vehicle registration or signature, and thereby failed to
consider that he was probably "framed" for offences
he did
not commit. In respect of the receipts which were the subject matter
of the enquiry into his trips to Durban and Tshwane,
the applicant
provided justifications why he had filled up with petrol or paid a
toll-free on those occasions and the question
whether those were
falsely included by the employer to implicate him was not an issue,
and was not necessary for the conclusions
reached in respect of
those offences.
Second ground of appeal.
The applicant’s second ground of appeal concerns the way in
which the arbitrator allegedly allowed the third respondent
to
handle its case in the way thought was proper, which entailed
amongst other things allowing it to lead irrelevant evidence
and
this demonstrated bias on the part of the Commissioner.
This was not one of the grounds of review raised by the applicant in
his founding or supplementary affidavits, nor was it something
he
pursued in the hearing before me. Accordingly, this is not a matter
that should be raised in appeal.
Third ground of appeal
The applicant contends that the Court heard in failing to notice
that the arbitrator committed reviewable misconduct in stating
in
his award that the purchases that were made were purely personal in
nature and he was not entitled to claim them. In considering
the
reference in the arbitration award at paragraph 56 of that award, it
appears to me that the arbitrator was simply saying
that since he
did not accept that the expenses in question were legitimately
related to the applicant’s UNISA studies,
and that they were
personal in nature and nothing decisive in that case turned on the
use of the term. Moreover, this was also
not an issue pursued by the
applicant in the review hearing.
Fourth ground of appeal
This ground of appeal to some extent repeats the applicant’s
complaint that he had disowned receipts and slips which did
not bear
his signature or vehicle registration number. In particular, he
disputes the relevance of the fact that the court noted
the
arbitrator’s finding that he did not dispute the evidence that
slips which did not bear his signature or registration
number were
submitted by him as part of his claim for reimbursement. The
applicant states that by ’participating’
in the
calculation of his claim she had not repudiated his right to defend
himself of misconduct in a disciplinary enquiry.
I do not understand such a conclusion to have been an implication of
the arbitrator’s finding, nor can such a conclusion
be
attributed to the judgement on review. The point of the arbitrator’s
observation, with which the court agreed, is that
if the applicant
did not regard slips with out his signature or car registration
number as provided by him, he would never have
submitted them as
part of his reimbursement claim. As the arbitrator observed, "I
do not hear applicant explaining this
remarkable coincidence between
the totals of his claim and that of the slips he knows nothing
about."
Fifth ground of appeal
The applicant claims that the court also erred by failing to find
that the arbitrator committed reviewable misconduct in confirming
the decision of the chairperson of the internal enquiry when the
chairperson had found him guilty of an alternative charge which
did
not appear on the charge sheet. This appears to be a reference to
the internal chairperson’s written note in respect
of the trip
to Tshwane that he was guilty of misuse of company time.The
arbitrator said that those words should not be read in
isolation but
together with the finding and the charge found in the typed minutes
of the internal enquiry concerning the events
of 29 July 2009. The
minute stated:
"But the times on the receipts show that there is no way that
the accused went to Pretoria and back. The times only indicate
he
might have misused the day for something else. He is therefore found
guilty.”
Clearly, the essence of the charge remained the same namely, that
the applicant had not been attending a UNISA seminar as he
claimed.
Accordingly, there is no substance to this point.
Sixth ground of appeal
The applicant draws other things to the Court's attention which were
not part of his review application and accordingly do not
fall for
consideration in appeal.
Seventh ground of appeal
The applicant filed a supplementary affidavit which strictly
speaking the court is not required to consider, but nonetheless
as
the applicant is a layperson, the additional grounds mentioned in it
are addressed below.
The first supplementary ground raised once again relates to the fact
that the applicant contends he could not be expected to
answer
questions or give plausible answers in receipts and slips which did
not bear his signature or vehicle registration. I
have already dealt
with why those slips were relevant notwithstanding the fact that he
sought to disowned them above.
Eighth ground of appeal
The eighth ground of appeal reiterates what is stated already in his
second and fourth grounds of appeal which has been dealt
with above.
Ninth ground of appeal
This ground again is merely a repetition of the applicant’s
fifth ground of appeal and no further discussion of this is
necessary.
Order
In light of the above, I am not satisfied that the applicant has
provided any reason why another court might come to a different
conclusion and accordingly the applicants leave to appeal is
dismissed.
_______________________
R LAGRANGE, J (in chambers)
Judge of the Labour Court of South
Africa