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[2014] ZALCJHB 152
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Serobe v Commission For Conciliation Mediation And Arbitration and Others (JR2664/06) [2014] ZALCJHB 152 (30 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE NO: JR 2664/06
In
the matter between:
MAJE
SEROBE Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION First
Respondent
K.G.
MNGEZANA Second
Respondent
FRED
MOFOKENG Third
Respondent
Date
heard: 29 October 2013
Date
of judgment: 30 April 2014
Summary:
Review application. Commissioner committed a reviewable
irregularity by denying the applicant a fair hearing.
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an unopposed application to review
and set aside the arbitration award under case number GAJB 4905-06
dated 30 August 2006,
in terms of which the second respondent (the
Commissioner) found the dismissal of the employee to have been
unfair.
The
background facts
[2]
The third respondent (the
employee) was at the time of the alleged termination of his
employment, employed as a laborer by the applicant.
There are two
competing versions between the parties as to what led to the
termination of the employee’s contract.
[3]
The version of the employee is
that he was dismissed by the managing director’s brother. The
case of the applicant on the
other hand was that the employee was
charged with unauthorized absence from work. The employee was charged
with absence from work
for a period of 7 days.
[4]
According to the applicant
notwithstanding the notice to attend the disciplinary hearing the
employee failed to do so. It was for
this reason that the
disciplinary hearing was held in his absence.
[5]
The employee contended that he
never received the notice to attend the disciplinary hearing. He
however conceded having received
a call from the applicant about the
disciplinary hearing. On the day he received the call he advised the
applicant that he was
in Vereeniging and that the letter should be
left with his brother.
Grounds
for review
[7]
The applicant contends that the
Commissioner committed gross irregularity in the conduct of the
arbitration hearing, in that he
allowed the employee to be legally
represented without investigating the complexity of the matter. The
applicant further contends
that the decision of the Commissioner is
unreasonable.
The
arbitration award
[8]
The
Commissioner rejected the version that the employee was not dismissed
but simply left the work place after an argument between
him and his
supervisor about the loading of the truck. The Commissioner rejected
the applicant’s version on the basis that
it was based on
hearsay evidence of the managing director who was not present at the
time the employee alleged to have refused
to load the truck. The
person who was present when that incident occurred was the immediate
supervisor of the employee who was
not called to testify. According
to the Commissioner no reason was furnished as to why the supervisor
was not called to testify.
[9]
As concerning
the conduct of the disciplinary hearing in the absence of the
employee the Commissioner found that there was no satisfactory
explanation as to why the disciplinary hearing was not postponed so
as to afford the employee an opportunity to a fair hearing.
Evaluation
[10]
The essential
ground upon which the applicant challenges the arbitration award of
the Commissioner is gross irregularity and a defect
envisaged in
section 145 (2) of the LRA.
[11]
The
test to apply when considering a review application is whether the
decision reached by the Commissioner is one which a reasonable
decision maker could not have reached as set out by the
Constitutional Court in Sidumo.
[1]
In relation to the review based on the grounds set out in section 145
of the LRA the Constitutional Court held that they are suffused
with
the constitutional standard of reasonableness. This means that an
award that suffers the defects set out in section 145 of
the LRA
fails the constitutional standard of reasonableness.
[12]
I agree with
the applicant that the Commissioner’s decision as to the
procedural fairness of the hearing is unreasonable.
It is common
cause that the employee did receive the message that he should attend
the disciplinary hearing. He failed to attend
on the basis he did not
receive the written notice. The Commissioner in fact found that the
employee was aware of the date of the
hearing but held that the
chairperson of the hearing the hearing should have been postponed to
afford the applicant an opportunity
to attend. There was no evidence
that the employee did request that the hearing should be postponed.
[13]
In my view,
the Commissioner with due respect misconceived the case which was
before him. In arriving at the conclusion that the
case of the
applicant was based on hearsay the Commissioner focused on the
allegation that the employee was dismissed by his immediate
supervisor. If indeed that was the case of the employee that he was
dismissed by the supervisor then his defence would not have
been that
he failed to attend the hearing because he did not receive the notice
of the hearing but that he could not attend the
hearing because he
was already dismissed. The employee testified that he would have
attended the hearing but for the fact that
he was not served with the
notice of the disciplinary hearing and that his car broke down.
[14]
In response to
the charge of being absent from work as alleged by the applicant the
employee stated that he was absent from work
due to ill-health. He
suggested that the ill-health was due to the injury he suffered on
his finger whilst at work. He conceded
during cross examination that
he did not produce any doctor’s note indicating that was booked
off sick.
[15]
In arriving at
the decision as he did, the Commissioner denied the applicant a fair
hearing resulting in his decision being unreasonable.
As a result of
this the Commissioner has also failed to consider whether the
sanction of dismissal was in the circumstances of
this case fair.
[16]
In my view,
the arbitration award of the Commissioner stands to be reviewed and
because of the error that the commissioners made
in his approach to
the mater this Court is not in a position to determine the matter.
The matter accordingly deserves to
be remitted to the First
Respondent to be determined by a Commissioner other than the second
respondent.
Order
[17]
In the
premises the following order is made:
1.
The
arbitration award
under case number
GAJB 4905-06 dated 30 August 2006, is reviewed and set aside.
2.
The matter is remitted to the First
Respondent for consideration afresh by a Commissioner other than the
Second Respondent.
Molahlehi
J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: L Charourx
Instructed
by Yusuf Nagdee Attorney.
For
the Respondent: No appearance.
[1]
Sidumo
v Rustenburg Platinum Mines Ltd
[2007] 12 BLLR 1097
(CC).