About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 208
|
|
Myeni v CCMA and Others (JR1506/13) [2015] ZALCJHB 208 (15 July 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no:
JR1506/13
Not
Reportable/Reportable
In the matter
between:
MANDLA AMOS
MYENI
Applicant
and
CCMA
First
Respondent
MR N MBELENGWA
N.O
Second
Respondent
ADT SECURITY (PTY)
LTD
Third Respondent
Heard:
8 July 2015
Delivered:
15 July 2015
Summary: Review
application – pleading not identifying grounds of review –
review not prosecuted timeously
– review dismissed
JUDGMENT
LEPPAN, AJ
Introduction
[1]
On
26 June 2013, the Second Respondent handed down an arbitration award
in the dispute about an alleged unfair dismissal of the
Applicant by
the Third Respondent.
[2]
The
Second Respondent found the dismissal of the Applicant to be
substantively fair.
[3]
On
25 July 2013, the Applicable instituted review proceedings in terms
of
section 145
of the
Labour Relations Act, 66 of 1995
, as amended
("the LRA") in an endeavour to have the award reviewed and
set aside and remitting the dispute back to the
First Respondent for
an arbitration hearing to be heard
de
novo
before a Commissioner other than the Second Respondent
[4]
The
review application was opposed by the Third Respondent, the former
employer of the Applicant. However, at the hearing of this
matter,
the Third Respondent indicated it would abide by the decision of this
Court.
[5]
Little
or no progress occurred in delivering the essential Record of
Proceedings timeously which is a requirement of
Rule 7A(6)
of the
Rules of the above Honourable Court. There is no explanation
for that delay.
[6]
This
delay prompted the Third Respondent to make application to the above
Court in terms of
Rule 11
of the Rules of Court for the dismissal of
the review application on the basis that it had not been prosecuted
timeously and diligently
by the Applicant. The
Rule 11
application was instituted by the Third Respondent on 3 April 2014.
This application was not pursued by the Third Respondent.
The Applicant's Delay
[7]
The
Applicant has not prosecuted his review application timeously or at
all. He has provided no reasons to this Court why
he was unable
to comply with this Court's Rules.
[8]
It
is of significance that the Certificate of veracity at page 127 of
the Record of the Transcribed evidence states that the aforesaid
compact disc was received by the transcribing company, iAfrica
Transcriptions, only on 17 March 2014 and same was completed by
the
transcribing company on 31 March 2014, yet the First Respondent had
made the compact disc available to the parties on 8 August
2013.
[9]
On
at least two occasions the Third Respondent alerted the Applicant to
the need to file the Record of Proceedings as expeditiously
as
possible. It appears that the Applicant did not reply to this
correspondence even though he was
dominus
litus
,
hence the reason for the Rule 11 application to dismiss the review.
[10]
In
Liwambano
v Department of Land Affairs and others
(2012) 6 BLLR 571
(LC), the Labour Court was critical of delays in
labour related disputes which needed to be expedited to finality in
the interests
of all concerned. It emphasised the need for the
observance of time limits and the steps a party should take where the
other
party fails to act efficiently which could result in the
disposal of an application for the review of an award.
[11]
I
am satisfied that the delay in this matter is the result of the
Applicant's tardiness and in the ordinary course, had the Rule
11
application been pursued, it may have resulted in a dismissal of the
review where the delay was unexplained.
The Applicant's review to this Court
[12]
The
Applicant's review application is wanting. It identifies no
discernible grounds for review in the context of section 145
of the
LRA. No defects are identified.
[13]
In
dealing with applications for review, the standard test was
formulated in
Sidumo
and another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC) namely:
"Is
the decision by the decision maker one that a reasonable decision
maker could not reach?"
[14]
Importantly,
arbitration awards of the CCMA are final and binding. There is no
appeal against a CCMA arbitration award.
[15]
The
Applicant simply avers in this founding affidavit under the title
"Grounds of Review" that: "
the
only thing that the company dismiss me for. I'm not getting the
reason. They must show me the prove (sic) of the
reason
."
[16]
The
Applicant's attorney, Mr P. Bam, who had come into the matter at a
very late stage, urged this Court to interpret the above
as a
challenge to the substantive fairness of the dismissal. It was the
Applicant's contention that this meant that the Second
Respondent had
confused the Applicant's degree of culpability as recklessness, when
he had not even been negligent. Again, the
submission falters because
it was in any event never pleaded.
[17]
Mr
Bam also argued that this Court should take account of the fact that
the accident occurred early in the morning at first light,
that the
third party's vehicle was grey in colour and that the third party may
well have been negligent. Mr Bam made the point
that the third party
did not testify in the arbitration hearing but gave a statement. He
argued that the Applicant should not be
faulted for making the
judgment call he did in responding to an emergency call out.
[18]
This
Court put to Mr Bam that his argument ran close to an appeal and to
read into the Applicant's review ground that the Second
Respondent
came to a wrong conclusion does not pass the review test as
aforesaid. The Applicant could take this aspect no further.
[19]
The
Applicant was charged with having caused a motor collision at a busy
intersection in Rivonia Road in the late afternoon of 18
January
2013. He was, in his capacity as a security officer, responding
to an emergency call out at a customer's premises
where a security
breach may have occurred. In responding to the call, the
Applicant manoeuvred the light delivery pick-up
van ("the LDV")
from the extreme left hand lane to the right hand lane. In
doing so, a collision occurred with
a third party. He was
charged with a failure to comply with the rules of the road whilst
driving the LDV which was the property
of his employer, the Third
Respondent. He was also charged with reckless and negligent
driving in executing a dangerous manoeuvre
and damaging his
employer's property. By all accounts, the Applicant drove
across a double barrier line when changing lanes.
The vehicle
of the third party was significantly damaged.
[20]
The
Third Respondent conducted an internal investigation which indicated
that the Applicant was in the left turning lane when all
of a sudden
he pulled across two lanes into a right turning lane at a robot and
in doing so collided with the third party who was
travelling through
the intersection with the traffic light green in the third party's
favour. Having pleaded not guilty at
this disciplinary enquiry,
the Third Respondent's chairperson found the Applicant guilty and he
was dismissed.
[21]
At
the arbitration hearing before the Second Respondent when the
Applicant disputed the fairness of his dismissal, the Applicant
was
tackled on the assertion that he had not breached the rules of the
road and appeared to indicate that he had not been the cause
of the
collision. In cross-examination, it was put to the Applicant as
follows –
"
Mr
Mynard
:
Why did you go to the right side?
Mr Myeni
:
Because I already observed everything like I said (indistinct).
Mr Mynard
:
But that, can you do that?
Mr Myeni
:
If it was safe, it was safe for me … .
Mr Mynard
:
You are lying, you are not telling the truth because, what is (sic)
the solid line mean, can you cross it?
My Myeni
:
No, you cannot cross it?
Mr Mynard
:
Why did you cross it?
My Myeni
:
Because it was safe, there was no other car.
Mr Mynard
:
it does not matter if it was safe, are you allowed to do it?
My Myeni
:
I know you cannot do it
."
[22]
It
cannot rest in the mouth of the Applicant to say that he wants his
employer to indicate the reason for dismissal when he had
infringed
the traffic regulations, and that in itself was negligence.
[23]
In
this matter, the Second Respondent produced an articulate award.
It was well reasoned and does not contain any defect or
gross
irregularity. He did not misconstrue the nature of the proceedings
and I find no reason to interfere with the Second Respondent's
findings.
Order
1.
The
Applicant's review application is dismissed.
2.
No
Order as to costs.
____________________________
Leppan, AJ
Acting Judge of the Labour Court of
South Africa
Appearances:
For the Applicant: Mr P Bam
For the Respondent: H Schensenig