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[2014] ZALCJHB 150
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Terence v Commission For Conciliation Mediation And Arbitration and Others (JR1225/09) [2014] ZALCJHB 150 (30 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
NOT
REPORTABLE
CASE
NO: JR1225/09
In
the matter between –
GINA BHEKISISA TERENCE
Applicant
And
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION First
Respondent
COMMISSIONER MUSA
BALAYI Second
Respondent
EMMANUALS
STAFFING
SERVICES (PTY) LTD
Third
Respondent
Heard : 25 April 2014
Judgement: 30 April
2014
Summery:
Review application.
JUDGMENT
MOLAHLEHI J
[1]
This
is an application to review and set aside the arbitration award made
under case number GAJB 966/09 dated 28 April 2009, in
terms of which
the second respondent (the Commissioner) found the dismissal of the
applicant to have been both procedurally and
substantively fair.
[2]
At
the beginning of the hearing of this matter Mr Makhuni, for the
applicant sought leave to submit an additional supplementary
affidavit because according to him no proper review case had
been made in the applicant’s papers.
[3]
The
request was opposed and consequently the applicant applied for a
postponement. Upon refusal of the postponement Mr Makhuni decided
to
proceed immediately despite the offer to stand the mater down to
afford him the opportunity to prepare as he indicated that
he had
recently taken instructions in the matter.
[4]
It
was agreed that despite the defect in the papers the Court should
read the grounds as formulated in both the founding and supplementary
affidavit of the applicant to be challenging the reasonableness of
the arbitration award.
Background facts
[5]
The
applicant who was prior to his dismissal employed as the sales
consultant at the third respondent’s Cell C store was dismissed
after being charged with the following offence:
“
MISCONDUCT
Causing a loss to
Company/ Client by not following Rules/Procedures through negligence.
Any Act or behaviour
which is considered so serious that it destroys Company’s
/Client’s ability to trust the Employee
and /or makes the
employment relationship intolerable ….”
[6]
The
applicant being unhappy with the outcome of the disciplinary hearing
referred a dispute concerning an alleged unfair dismissal
to the
CCMA. The dispute proceeded to arbitration hearing after the
unsuccessful conciliation. The outcome of the arbitration as
indicated earlier was the dismissal of the applicant’s claim on
the basis that the dismissal was for a fair reason.
[7]
The
facts which led to the dismissal of the applicant are fairly common
cause. The applicant received a call from the security company
on the
day in question informing him that the alarm at the sore had has been
activated. This was at about 21H00.
[8]
The
applicant did nothing in response to the call. Another call was
made again by the security company at 03H00 in the morning.
This time
around the applicant arrange for car with her sister and went to the
store to check.
[9]
On
arrival there he found that the store had been broken into and
substantial number of cell phones stolen. He contacted the police
and
one of his seniors regarding the robbery.
The
grounds for review
[10]
The
applicant contends that the decision of the Commissioner was
unjustified as he was not responsible for the security at the store.
The security at the store was the responsibility of the security
company.
[11]
The
applicant did not pursue the defect raised in his supplementary
affidavit being that:
a.
He
was not provided with the assistance of an interpreter.
b.
The
charges against him were not clear.
c.
He
was dismissed on the basis of hearsay evidence.
Evaluation
[12]
In
contending that the outcome of the arbitration proceedings were
unreasonable Mr Khuni contended that the Commissioner failed
to take
into account that the third respondent had failed to prove the
fairness of the dismissal in that it did not disclose the
job
description and employment contract of the applicant to show that he
was responsible for the security at the store.
[13]
It
was also argued that the explanation by the applicant for what he did
on the day in question was reasonable and should accordingly
have
ameliorated the severity of the sanction.
[14]
In
considering this review I am enjoined to apply the reasonable
decision maker test. The enquiry to conduct in this regard
is
that of having to determine whether the decision of the Commissioner
is one which a reasonable decision maker could not have
reached. Put
in another way the question is whether the decision by the
Commissioner meets the constitutional standard of reasonableness.
[15]
In
my view the argument that the Commissioner failed in his duties in
not taking into account the fact that the third respondent
failed to
produce the applicant’s job description or his employment
contract no merits. There was no need to produce any
of those
documents because the version of the third respondent as presented by
Ms Cowie in that regard was not disputed.
[16]
In
fact the applicant supported the version that he was responsible for
the security at the store was supported by his own version.
In this
respect the applicant testified that on the day in question he locked
the store and thereafter activated the alarm. He
further testified
that when he received the call the first time regarding the alarm, he
thought it was a false alarm it. The same
applies to the reason for
not contacting his seniors. He did not contact his seniors because he
did not have airtime on his phone.
[17]
In
addition to the above it was to be noted that the applicant was the
only employee in the store. The probabilities based on all
these
facts points strongly to the fact that the applicant was responsible
for the security at the store.
[18]
In
light of the above I am of the view that the Commissioner cannot be
faulted for finding the applicant guilty of the offences
for which he
was charged with. The Commissioner also arrived at the conclusion
that the dismissal was the appropriate sanction
after taking into
account that the trust relationship between the parties had broken
down because of the conduct of the applicant.
[19]
In
the circumstances the applicant’s application to review the
Commissioner’s arbitration award stands to fail. It would
however not be fair in the circumstances of this case to allow costs
to follow the results.
Order
[20]
In
the premises the applicant’s application to review the
arbitration award made under case number GAJB 966/09 dated 28 April
2009 is dismissed with no order as to costs.
___________________
Molahlehi
J
Judge
of the Labour Court South Africa
Appearances:
For the Applicant: Mr L
Makhuni
Instructed by Makhuni
attorneys
For the Respondent: Ms A
Diepenaaar
Instructed by Kirshman
Inc.
Matter
considered in Chambers