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[2014] ZALCJHB 158
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Gumede v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR2714/10) [2014] ZALCJHB 158 (8 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR 2714/10
In
the matter between -
GUMEDE
HLENGIWE
Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION (“the CCMA”)
First
Respondent
FAIZEL
MOOI
N.O
Second
Respondent
MARYANA
GUEST HOUSE
Third
Respondent
Date heard:
22 April 2014
Date of judgment: 08
May 2014
Summary:
Review application. Resolving the issue of conflicting versions on
the basis of credibility and the probabilities.
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review and set
aside the arbitration award made under case number GAJB 35881 –
09, in terms of which
the second respondent (the Commissioner) found
the dismissal of the applicant to have been substantively fair but
procedurally
unfair. It was for this reason that the Commissioner
awarded compensation only.
Background
facts
[2]
The applicant together with her boyfriend,
are former employees of the respondent. The two were employed at the
guesthouse. The
applicant was dismissed for defrauding the third
respondent by collecting money from guests of the applicant and
issuing them with
the forged receipts.
[3]
The owner of the guesthouse testified
during the arbitration proceedings that she received a call from one
of her guests who informed
her that she had paid, R33. 400.00 to a
certain Mr Kutchona. After receiving this information she went to the
guest-house to investigate.
In her investigation she discovered that
there were three types of receipts which were given to guests.
[4]
According to the owner the receipts were
given to the guests were not official guest-house receipts. She
received an amount of R17.000
only from Mr Kutchona, which was not
reflected in the official receipt book.
[5]
The employee on the other hand testified
that she was not responsible for collecting money from guests and
that her responsibility
was to record money in the receipt book.
[6]
Mr Kuchona testified on behalf of the
applicant and stated that he collected money from the guests and that
the applicant knew about
these as she had asked him to do it. He
disputed the version of the applicant that she did not know that he
was collecting money
from guests.
[7]
The
test to apply when considering whether to interfere with an
arbitration award in review is the reasonable decision maker’s
test as set out in
Sidumo
v Rustenburg Platinum Mines.
[1]
[8]
In my view the conclusion reached by the
Commissioner cannot be faulted for unreasonableness. It is apparent
from the arbitration
award that the Commissioner was confronted with
two conflicting versions.
[9]
In resolving the conflicting versions the
Commissioner resorted to the assessment of credibility. She
correctly, in my view, found
that the version of the applicant lacked
credibility. She also found the version of the applicant that she did
not know that her
boyfriend was collecting money from the guests was
improbable because that version was contradicted by her own witness.
It was
for this reason that, she found that the applicant was guilty
of gross negligence.
[10]
The credibility findings made by the
Commissioner cannot be questioned when regard is had to the evidence
that was properly before
the Commissioner. The inherent probabilities
also support the conclusion reached by the Commissioner. It is highly
improbable from
the facts as they stand that the applicant did not
know that her boyfriend was collecting money from the customers when
on his
version the boyfriend confirmed that she know about that
fact.
[11]
In the circumstances, I am unable to fault
the Commissioner for unreasonableness. I am also not persuaded that
the Commissioner
in conducting the arbitration proceedings committed
any of the defects envisaged in section 145 of the Labour Relations
Act.
[12]
Accordingly the applicant’s
application stands to fail.
Order
[13]
In the circumstances, the applicant’s
review application is dismissed with no order as to costs.
______________
E Molahlehi
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
For
the Respondent:
[1]
Sidumo
v Rustenburg Platinum Mines
[1]
(2007)
BLLR 1027
(LC)