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[2015] ZALCJHB 152
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I Bower And Associates CC v Phooko and Others (JR164/14) [2015] ZALCJHB 152 (14 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
number: JR164/14
DATE:
14 MAY 2015
Not
Reportable
In
the matter between:
I
BOWER AND ASSOCIATES
CC
.........................................................................................
Applicant
And
ME
PHOOKO
...............................................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
..............................................................................................
Second
Respondent
SD
MONENE
..............................................................................................................
Third
Respondent
KD
APHANE
.............................................................................................................
Fourth
Respondent
RG
MOHLAKA
...........................................................................................................
Fifth
Respondent
NH
TJALE
....................................................................................................................
Sixth
Respondent
Heard:
6 January 2015
Delivered:
14 May 2015
Summary:
This is a Review Application where the Applicant sought the
arbitration award of the First Respondent, where the First
Respondent
found the dismissals of the Third to Sixth Applicants to be both
substantively and procedurally unfair, be reviewed
and set aside.
The First Respondent found that the Third to Sixth Respondents had
thrown stones during a protected strike
at a motor vehicle occupied
by a manager of the Applicant, but had in turn found the dismissals
of the Third to Sixth Respondents
to be substantively unfair as the
First Respondent found that the Applicant had acted inconsistently by
dismissing the Third to
Sixth Respondents but retaining in its employ
a fifth transgressor. The fifth transgressor was only identified as
such during the
course of the arbitration proceedings. The Court
found that the Third to Sixth Respondents had not established a
prima
facie
case of inconsistency during the arbitration
proceedings which would have necessitated the Applicant to provide a
defence thereto
and as such the finding that the dismissal of the
Third to Sixth Respondents was substantively unfair based on
inconsistency was
not a decision that a reasonable decision maker
could have arrived at. The First Respondent’s finding
that the Third
to Sixth Respondents’ dismissals were
procedurally unfair was also found not to be a decision that a
reasonable decision
maker could have arrived at. The
arbitration award was accordingly reviewed and set aside.
JUDGMENT
Introduction
[1]
This is a Review Application in terms of which the Applicant seeks
the arbitration award of the First Respondent dated 19 December
2013
and issued under case number LP6623/13 (“Award”), which
arbitration was conducted under the auspices of the Second
Respondent, be reviewed and set aside (“Review Application”).
This Review Application has been brought in terms of
section 145 of
the Labour Relations Act 66 of 1995 (“LRA”).
[2]
In seeking an order to have the Award reviewed and set aside, the
Applicant also seeks to have the Award corrected by determining
that
the dismissal of the Third to Sixth Respondents on 14 May 2013 was
fair (procedurally and substantively), alternatively, ordering
that a
complete re-hearing of matter be conducted under the auspices of the
Second Respondent and before an arbitrator other than
the First
Respondent.
Background Facts
[3]
The Applicant provides cleaning services to various mines, including,
to those of Anglo Platinum. The Third to Sixth Respondents
were
employed by the Applicant and provided services at one of the Anglo
Platinum mines.
[4]
On 19 November 2012, the Applicant’s employees, including, the
Third to Sixth Respondents, embarked on a protected strike.
It was
during this protected strike that an incident occurred at Anglo
Platinum’s premises, during which certain striking
employees of
the Applicant threw stones at and caused damage to a motor vehicle
which was occupied by the Applicant’s General
Manager, Ms
Lorraine Bower (“Ms Bower”).
[5]
The Third to Sixth Respondents were subsequently identified by Ms
Peggy Seanego (“Ms Seanego”), an Anglo Platinum
security
guard, as having thrown the stones at the motor vehicle occupied by
Ms Bower and they were subsequently criminally charged
for malicious
damage to property. The protected strike continued into March 2013.
[6]
The Third to Sixth Respondents’ criminal trial was concluded in
early May 2013.
[7]
Following the conclusion of the criminal trial and on 9 May 2013, the
Third to Sixth Respondents were furnished with notices
to attend a
disciplinary hearing on 14 May 2013 to answer to the allegation of
malicious damage to property. The Third to Sixth
Respondents were
found guilty of the aforesaid charge at the conclusion of the
disciplinary hearing and they were summarily dismissed
by the
Applicant.
[8]
The Third to Sixth Respondents, through their trade union COWUSA,
referred an unfair dismissal dispute to the Second Respondent,
which
dispute was ultimately arbitrated upon by the First Respondent
(“Arbitration”). Following the Arbitration, the
First
Respondent furnished the Award and I summarise the material findings,
which are relevant to this Review Application, below:
8.1
Ms Seanego had impressed the First
Respondent and was found to be a reliable witness. The First
Respondent accordingly found no
reason to reject her evidence;
8.2
Ms Seanego had testified that she had
witnessed the Third to Sixth Respondents throwing stones at the motor
vehicle occupied by
Ms Bower;
8.3
Ms Seanego had testified that a fifth
transgressor (Mavis) had also been involved in throwing stones at the
motor vehicle occupied
by Ms Bower;
8.4
the First Respondent found that there was
evidence to show that the fifth transgressor was still employed by
the Applicant and as
such the Applicant had acted inconsistently in
dismissing the Third to Sixth Respondents, whilst retaining the fifth
transgressor
in its employ. This inconsistency rendered the
dismissals of the Third to Sixth Respondents substantively unfair;
8.5
the First Respondent then found that there
was uncontested evidence that the Third to Sixth Respondents were
dismissed on 23 November
2012;
8.6
the Third to Sixth Respondents had
confirmed in their evidence that their last working day was 23
November 2012 and the disciplinary
hearing of 14 May 2013 was
conducted in an attempt to legitimise their dismissals;
8.7
the dismissals of the Third to Sixth
Respondents were found to be procedurally unfair; and
8.8
the First Respondent awarded the Third to
Sixth Respondents reinstatement with specified amounts of back pay
computed for the period
December 2012 to the end of December 2013.
Grounds for
Review
[9]
The Applicant’s grounds of review are set out more specifically
in paragraphs 13 to 21 of the Applicant’s Founding
Affidavit,
and duly supplemented by paragraph 2 of the Applicant’s
Supplementary Affidavit, which for the purposes of this
Judgment, I
shall summarise as follows:
9.1
with regards to substantive fairness of the
Third to Sixth Respondents’ dismissals, the First Respondent
had accepted the
evidence of Ms Seanego and more particularly that
she had witnessed the Third to Sixth Respondents, as well as a fifth
transgressor,
throwing stones at the motor vehicle occupied by Ms
Bower. Notwithstanding the aforementioned, the First Respondent found
that
although the Third to Sixth Respondents were guilty of serious
misconduct, the First Respondent determined that the dismissal of
the
Third to Sixth Respondents was substantively unfair based on the
finding that the Applicant had acted in an inconsistent manner
by
dismissing the Third to Sixth Respondents and retaining the fifth
transgressor in its employ;
9.2
the Applicant was at no stage prior to the
Arbitration aware that the fifth transgressor was involved in
throwing stones at the
motor vehicle occupied by Ms Bower;
9.3
in the aforementioned circumstances, the
First Respondent incorrectly and unreasonably interpreted and applied
the consistency rule
to such an extent that the Award should be
reviewed and set aside;
9.4
with regard to the First Respondent’s
finding of procedural unfairness, the First Respondent had acted in
an incorrect, irrational
and unreasonable manner when he accepted
that the Third to Sixth Respondents were dismissed on 23 November
2012, by finding that
there was uncontested evidence thereof
notwithstanding the fact that the Third to Sixth Respondents had
attended the disciplinary
hearing on 14 May 2013;
9.5
further and in circumstances where the
First Respondent found that the Third to Sixth Respondents were
dismissed on 23 November
2012, the First Respondent should have noted
that the unfair dismissal dispute referral to the Second Respondent
was not within
the 30 (thirty) day prescribed period. In the absence
of condonation being granted, the Second Respondent had no
jurisdiction to
arbitrate the unfair dismissal dispute;
9.6
the delay between the damaging of the motor
vehicle occupied by Ms Bower on 23 November 2012 and the conducting
of the disciplinary
hearings on 14 May 2013 was due to the strike
action that had only ended in March 2013 and the subsequent criminal
proceedings
that the Third to Sixth Respondents were required to
attend, which only concluded in early May 2013. There was no
prejudice to
the Third to Sixth Respondents arising from the delay in
conducting the Third to Sixth Respondents’ disciplinary hearing
on 14 May 2013; and
9.7
if the Court was to determine that the
Third to Sixth Respondents are entitled to a remedy, it was
inappropriate to award retrospective
reinstatement or re-employment.
Test for Review
[10]
The review test was formulated by the Supreme Court of Appeal in
Herholdt
v Nedbank Limited (Congress of SA Trade Unions as amicus curiae)
[1]
,
where the Court concluded as follows:
‘
In
summary the position regarding the review of CCMA award is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s145 (2) (a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s145 (2) (a)(ii), the
arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach
on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be attached
to the particular
facts, are not in and of themselves sufficient for an award to be set
aside, but are only of consequence of their
effects is to render the
outcome unreasonable’.
[11]
The Labour Appeal Court in the subsequent judgment in the matter of
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2]
,
has confirmed the review test as follows:
‘
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on the
evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator….In other words, in a case
such as the present,
where a gross irregularity in the proceedings is alleged, the enquiry
is not confined to whether the arbitrator
misconceived the nature of
the proceedings, but extends to whether the result was unreasonable,
or put another way, whether the
decision that the arbitrator arrived
at is one that falls in a band of decisions a reasonable decision
maker could come to on the
available material.
The
Court concluded:
In
short: A review court must ascertain whether the arbitrator
considered the principal issue before him/her, evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decision he or she arrived at’.
[12]
The review test has also more recently been confirmed in the Labour
Appeal Court in the case of
Head of the Department of Education v
Jonas Mohale Mofokeng and Others (JA14/2014)
.
[13]
The aforementioned constitutes the review test to which this Court is
bound. Material errors of facts as well as the weight
and relevance
attached to any particular fact are not therefore in themselves
sufficient to allow this Court to interfere with
the Award, unless it
renders the ultimate decision by the First Respondent unreasonable
i.e. a reasonable decision maker could
not have arrived at such a
decision.
Merits of Review:
Substantive Fairness
[14]
The thrust of the Applicant’s grounds of review with regards to
the First Respondent’s finding that the dismissal
of the Third
to Sixth Respondents was substantively unfair revolves around the
question as to whether, based on the current jurisprudence,
the First
Respondent had incorrectly and unreasonably interpreted and applied
the consistency rule, which rendered the First Respondent’s
finding of substantive unfairness as unreasonable.
[15]
As a starting point, I intend to deal with the current jurisprudence
with regard to the consistency rule and which has particular
relevance to this Review Application.
[16]
In order for an inconsistency argument to have any traction, a
prima
facie
case of inconsistency has to be proved by the party alleging
inconsistency before the other party would be compelled to provide
a
defence to those allegations. These principles were described in the
decision of
Frans
Masubelele v Public Health and Social Development Sectoral Bargaining
Council and Others
[3]
,
where
the Court held as follows:
‘
Mr
S M Shaba, representing the third respondent, contended that the
applicant had the evidentiary burden to at least prove a prima
facie
case of inconsistency, before the third respondent could be expected
to answer the same. Mr Shaba stated that in this instance,
the
applicant failed to even provide prima facie evidence to establish
inconsistency and consequently the third respondent had
nothing to
answer. Mr Shaba stated that the applicant should have led evidence,
and only has himself to blame for not doing so.
I agree with these
submissions of Mr Shaba. The applicant had to at least have provided
a prima facie evidentiary platform to support
his contentions of
inconsistency…’
[17]
The judgment in
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd
[4]
,
however
determined the general principles applicable to the consistency rule,
where the Court held as follows:
‘…
In
my view too great an emphasis is quite frequently sought to be placed
on the ‘principle’ of disciplinary consistency,
also
called the ‘parity principle’ (as to which see eg Grogan
Workplace Law (4 ed) at 145 and Le Roux and Van Niekerk
The SA Law of
Unfair Dismissal at 110). There is really no separate ‘principle’
involved. Consistency is simply an
element of disciplinary fairness
(M S M Brassey ‘The Dismissal of Strikers’ (1990) 11
ILJ
213 at 229). Every employee must be measured by the same standards
(Reckitt and Colman (SA) (Pty) Ltd v Chemical Workers Industrial
Union and others (1991) 12
ILJ
806 (LAC) at 813H-I). Discipline must not be capricious. It is really
the perception of bias inherent in selective discipline which
makes
it unfair. Where, however, one is faced with a large number of
offending employees, the best that one can hope for is reasonable
consistency. Some inconsistency is the price to be paid for
flexibility, which requires the exercise of a discretion in each
individual
case. If a chairperson conscientiously and honestly, but
incorrectly, exercises his or her discretion in a particular case in
a
particular way, it would not mean that there was unfairness towards
the other employees. It would mean no more than that his or
her
assessment of the gravity of the disciplinary offence was wrong. It
cannot be fair that other employees profit from that kind
of wrong
decision. In a case of a plurality of dismissals, a wrong decision
can only be unfair if it is capricious, or induced
by improper
motives or, worse, by a discriminating management policy…Even
then I dare say that it might not be so unfair
as to undo the outcome
of other disciplinary enquiries. If, for example, one member of a
group of employees who committed a serious
offence against the
employer is, for improper motives, not dismissed, it would not, in my
view, necessarily mean that the other
miscreants should escape.
Fairness is a value judgment. It might or might not in the
circumstances be fair to reinstate the other
offenders. The point is
that consistency is not a rule unto itself’.
[18]
In the judgment of
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[5]
,
the
Court again dealt with the principles applicable to an inconsistency
argument, where the Court held as follows:
‘…
A
claim of inconsistency (in either historical or contemporaneous
terms) must satisfy a subjective element – an inconsistency
challenge will fail where the employer did not know of the misconduct
allegedly committed by the employee used as a comparator
(see, for
example, Gcwensha v CCMA and others
[2006] 3 BLLR 234
(LAC) at paras
37-38). The objective element of the test to be applied is a
comparator in the form of a similarly circumstanced
employee
subjected to different treatment, usually in the form of a
disciplinary penalty less severe than that imposed on the claimant.
(See Shoprite Checkers (Pty) Ltd v CCMA and Others
[2001]
7 BLLR 840
(LC)
at para
3
).
Similarity of circumstances is inevitably the most controversial
component of this test. An inconsistency challenge will fail
where
the employer is able to differentiate between employees who have
committed similar transgressions on the basis of inter alia
differences in personal circumstances, the severity of the misconduct
or on the basis of other material factors’.
[19]
These principles have also been confirmed and dealt with in a
comprehensive manner by Snyman AJ in
Banda
v General Public Service Sectoral Bargaining Council and Others
.
[6]
[20]
Those principles were further confirmed more recently in the
unreported decision of
ABSA Bank Limited v Devapriya Naidu and
Others (case no: DA14/12)
which the Applicant’s Counsel
handed up with his Heads of Argument at the hearing of this Review
Application, which held
as follows at paragraph 42:
‘
[42]
Indeed, in accordance with the parity principle, the element of
consistency on the part of an employer in its treatment of
employees
is an important factor to take into account in the determination
process of the fairness of a dismissal. However, as
I say, it is only
a factor to take into account in that process. It is by no means
decisive of the outcome on the determination
of reasonableness and
fairness of the decision to dismiss. In my view, the fact that
another employee committed a similar transgression
in the past and
was not dismissed cannot, and should not, be taken to grant a licence
to every other employee, willy-nilly, to
commit serious
misdemeanours, especially of a dishonest nature, towards their
employer on the belief that they would not be dismissed.
It is well
accepted in civilised society that two wrongs can never make a right.
The parity principle was never intended to promote
or encourage
anarchy in the workplace. As state earlier, I reiterate, there are
varying degrees of dishonesty and, therefore, each
case will be
treated on the basis of its own facts and circumstances’.
[21]
When one then looks at the aforementioned principles in the context
of the Record, it is evident that Ms Seanego had identified
the Third
to Sixth Respondents, as well as the fifth transgressor, as those who
had thrown stones at the motor vehicle occupied
by Ms Bower. Although
the transcript of the Arbitration proceedings was at times difficult
to follow, I could not find any compelling
evidence to confirm that
the fifth transgressor was still employed by the Applicant at the
time of the Arbitration, with Ms Seanego
specifically being unable to
confirm this whilst under cross examination, I have nevertheless for
the purposes of the Judgment
accepted that this was the case as it
appears to have been subsequently conceded by the Applicant. I am
however, not convinced
that these facts in themselves establish a
prima facie
case of inconsistency, which would have required
the Applicant to provide a defence thereto. In this regard, there was
no evidence
produced during the Arbitration proceedings by the Third
to Sixth Respondents to show, at least on the face of it, that the
Applicant
was aware prior to the Arbitration proceedings that the
fifth transgressor had also been implicated in the throwing of stones
at
the motor vehicle occupied by Ms Bower on 23 November 2012. There
was also no evidence led to show the Third to Sixth Respondents,
at
least on the face of it, had been singled out for specific treatment
by the Applicant or that the Applicant had been capricious
in any
manner or that the Applicant had in any way acted with improper
motives. There was accordingly no
prima facie
case of
inconsistency proved by the Third to Sixth Respondents that warranted
that the Applicant be required to provide a defence.
This in itself
has led me to conclude that the finding of the First Respondent that
the dismissal of the Third to Sixth Applicants
was substantively
unfair as a consequence of inconsistency in that the Third to Sixth
Applicants were dismissed and the fifth transgressor
remained
employed by the Applicant should be reviewed and set aside;
[22]
In order to however, demonstrate how far off the mark the First
Respondent’s finding and application of the consistency
rule
was in this matter, even if I had found that the Applicant had known
at the time of the Arbitration that the fifth transgressor
had,
simultaneously with the Third to Sixth Respondents, thrown stones at
the motor vehicle occupied by Ms Bower during the course
of the
protected strike, there was again no evidence produced during the
course of the Arbitration to show that the Applicant had
in any way
acted with,
inter alia
, improper motives or in a capricious
manner towards the Third to Sixth Respondents. Further, the conduct
by the Third to Sixth
Respondents constituted serious misconduct and
in these circumstances I can also see no reason why the Third to
Sixth Respondents
should therefore have benefitted at all from a
possible failure by the Applicant to discipline the fifth
transgressor.
[23]
It is therefore the finding of this Court that the First Respondent’s
finding that the dismissal of the Third to Sixth
Respondents was
substantively unfair does not reflect a decision that a reasonable
decision maker could have arrived at. The First
Respondent’s
finding that the dismissal of the Third to Sixth Applicants was
substantively unfair is accordingly reviewed
and set aside.
Merits of Review:
Procedural Fairness
[24]
It is evident that the First Respondent’s finding that the
dismissal of the Third to Sixth Respondents was procedurally
unfair
essentially stems from his conclusion that the Third to Sixth
Respondents were dismissed on 23 November 2012 and not on
14 May 2013
when the disciplinary hearing was conducted by the Applicant in
respect of the Third to Sixth Respondents. In this
regard, the First
Respondent specifically found the following:
24.1
there was uncontested evidence that the
Third to Sixth Respondents were dismissed on 23 November 2012;
24.2
the Third to Sixth Respondents’
witnesses had confirmed that the Third to Sixth Respondents’
last working day was in
November 2012;
24.3
the only inference that could be made from
the aforementioned was that the Third to Sixth Respondents had been
dismissed on 23 November
2012; and
24.4
the disciplinary hearing that was conducted
on 14 May 2013 was only an attempt to legitimise the dismissals of 23
November 2012.
[25]
After considering the Record, and again I have to state that the
transcript of the Arbitration proceedings was at times difficult
to
follow, the following was nevertheless evident:
25.1
the Third to Sixth Respondents dismissal
notices which were completed following the disciplinary hearing
conducted on 14 May 2013,
and which are reflected on pages 25 to 40
of the Record, clearly state that their dismissals were with effect
from 23 November
2012. In essence, the Applicant took the irregular
step of backdating the Third to Sixth Respondents’ dismissal
date;
25.2
this is also supported by the evidence of
at least two of the Third to Sixth Respondents on pages 100 and 103
of the Record when
they were asked the question by their
representative regarding the date of their dismissals, they confirmed
that they were dismissed
on 14 May 2013 and when subsequently pushed
by their representative they stated that they had been dismissed with
effect from 23
November 2012;
25.3
on page 175 of the Record, the Third to
Sixth Respondents’ referral to the Second Respondent records
that the unfair dismissal
dispute arose on 14 May 2013, the date of
the disciplinary hearing, although the date of dismissal is
subsequently recorded in
the same document on page 177 as 23 November
2012;
25.4
on page 179 of the Record and in the Third
to Sixth Respondents’ Application for Condonation, the Third to
Sixth Respondents
record that they were dismissed on 14 May 2013;
25.5
on page 125 of the Record, the Applicant’s
representative confirmed that the Third to Sixth Respondents were
dismissed after
the disciplinary hearing that was held on 14 May
2013;
25.6
the Applicant’s representative
further submitted that the Applicant was unable to take disciplinary
action against the Third
to Sixth Respondents whilst they were on
strike. He further submitted that when the strike ended, the
Applicant took a decision
not to invoke disciplinary proceedings
against the Third to Sixth Respondents until their criminal case had
been finalised. The
criminal case was finalised in early May 2013 and
the Third to Sixth Respondents were then furnished with the notices
to attend
the disciplinary hearing on 9 May 2013. The Third to Sixth
Respondents did not tender their services during the aforementioned
period; and
25.7
the disciplinary hearing in respect of the
Third to Sixth Respondents was convened on 14 May 2013 and the Third
to Sixth Respondents
attended and participated in that disciplinary
hearing. From the Record I cannot find any evidence presented at the
Arbitration
that shows any procedural irregularities relative to
disciplinary proceedings conducted on 14 May 2013.
[26]
Based on the above, I find that the First Respondent’s finding
that there was uncontested evidence to show that the Third
to Sixth
Respondents were in fact dismissed on 23 November 2012, is not a
reasonable finding. In addition and in making his finding,
the First
Respondent also failed to take cognisance of and made a finding which
is inconsistent with section 190(1) of the LRA.
What is however
evident is that the Third to Sixth Respondents were dismissed on 14
May 2013, but with the Applicant taking the
irregular step of
attempting to backdate the date of dismissal to 23 November 2012.
This irregular step should not however detract
from the factual
position and that is the Third to Sixth Respondents were dismissed
after the disciplinary hearing that was conducted
on 14 May 2013.
This is simply a factual inaccuracy on part of the Applicant which
does not alter the factual position.
[27]
I also find that the First Respondent’s conclusion that the
Third to Sixth Respondents had in fact been dismissed on
23 November
2012 because witnesses confirmed their last working day was on 23
November 2012, is also not a reasonable finding.
To this end, it is
evident that the Third to Sixth Respondents were on strike and they
would not have tendered their services whilst
on strike. The
Applicant was also unable to invoke disciplinary proceedings whilst
the Third to Sixth Respondents were on strike.
The First Respondents
ignores these facts in his finding.
[28]
The Applicant’s version as to what took place after the strike
ended, more specifically that the Applicant took a decision
not to
invoke disciplinary proceedings until their criminal trial had been
finalised and that the Third to Sixth Respondents had
not tendered
their services during this period, also appears to be ignored by the
First Respondent.
[29]
Further and if the Third to Sixth Respondents had in fact been
dismissed on 23 November 2012 as the First Respondent found,
they
would have been required to refer their unfair dismissal dispute to
the Second Respondent within a period of 30 days calculated
from 23
November 2012. This did not occur. In fact, the Third to Sixth
Respondents only referred their unfair dismissal dispute
to the
Second Respondent after the 14 May 2013 disciplinary hearing. In
addition thereto, when the Third to Sixth Respondents filed
their
condonation application in respect of the late filing of their unfair
dismissal dispute to the Second Respondent, they stated
that they had
been dismissed on 14 May 2013
[30]
I therefore find that the First Respondent’s finding that the
Third to Sixth Respondents’ dismissal was procedurally
unfair
is again not a decision that a reasonable decision maker could have
arrived at and as such the procedural unfairness finding
is reviewed
and set aside.
The Order
[31]
The Award is reviewed and set aside.
[32]
The Award is replaced with the following order:
The
dismissal of the Third to Sixth Respondents was both substantively
and procedurally fair.
There
is no order as to costs.
[33]
There is no order as to costs in this Review Application.
Alcock, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant: P.H. Kirstein
Instructed by:
Borman, Snyman & Barnard Attorneys
For
the Respondent: No appearance
[1]
(2013)
34
ILJ
2795 (SCA) at para 25.
[2]
(2014)
35
ILJ
943 (LAC) at paras 14 and 16.
[3]
Unreported
judgement dated 17 January 2013 under case number JR 1151/2008 at
para 29
[4]
[1999]
8 BLLR 741
(LAC) at para 29
[5]
(2010)
31
ILJ
452
(LC) at para 10
[6]
[2014]
JOL 31486
(LC).