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[2015] ZALCJHB 417
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Concor Mining v NUM obo Sekgwele and Others (JR779/2011) [2015] ZALCJHB 417 (30 November 2015)
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA,
IN JOHANNESBURG
Case
no: JR 779/2011
In
the matter between:
CONCOR
MINING
Applicant
and
NUM
obo SEKGWELE
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
Second
Respondent
DHELIWE MAVUMA
(
n.o.
)
Third
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
LAGRANGE,
J
Introduction
[1]
The second respondent in this matter has
applied for leave to appeal. His application for leave to appeal were
some 8 months late
owing sadly to the passing of his attorney, Ms N
Tshabalala. The circumstances occasioned by this make the application
for condonation
perfectly understandable and quite irrespective of
the merits of the appeal I am willing to condone the late filing
thereof.
[2]
The second respondent had been found guilty
on the following charge and was dismissed:
“
On
the 24
th
November 2010 at about 13h15 you have violated safety rules.
Reckless
Driving Company Machine ADT VOLVO which resulted in a near miss.”
[3]
The arbitrator found that his dismissal was
substantively unfair based on a finding that she found it
“…impossible
to declare that the applicant was guilty of
exceeding the speed limit”, and that the company had failed to
discharge the
onus of proving this. I found that the arbitrator
had unjustifiably misconstrued the ambit of the charge on which the
second
respondent had been found guilty, and as a result this led her
to ignore very material and undisputed evidence relating to the
manner in which the vehicle was being driven under the conditions
prevailing at the time.
[4]
I further found that:
“
Had
she considered the charge for which he had been dismissed, she would
have been unable to escape the conclusion that even if
there was
scope of doubting if it had been proved that the vehicle was
travelling in excess of 40km per hour, there was no reasonable
basis
for concluding that Sekgwele had been driving recklessly and at a
speed which was excessive relative to the conditions he
was driving
in, given the undisputed evidence of Benn on these issues.
Consequently, she could not reasonably have found in the
light of the
serious emphasis on evidence at the site, that it was inappropriate
for the applicant to have dismissed Sekgwele in
the circumstances.”
[5]
In other words, as a result of
misconstruing what she had to determine she also failed to consider
relevant evidence that materially
impacted on the reasonableness of
her conclusion.
[6]
The second respondent argues that the court
erred in deciding the matter on the basis of the charges against the
second respondent.
The second respondent also contends that the court
erred by ignoring the real reason for the dismissal, which he
contends was that
the chairperson found he had exceeded the speed
limit of 40 km/hr.
[7]
It is undoubtedly true that the chairperson
of the disciplinary enquiry did pay considerable attention to
speeding as evidence of
reckless driving and even describing part of
the charge as “reckless driving (speeding)”. However as
the full ambit
of the charge makes clear it was the second respondent
“recklessly driving … which resulted in a near miss”
and the chairperson found the second respondent “guilty as
charged”. The fact that he may have concluded that the employee
was guilty as charged on a narrow basis relating to exceeding a speed
of 40 km/hr, does not detract from his ultimate finding.
The
evidence before the chairperson, like that before the arbitrator,
covered more than merely driving at an excessive speed, and
the
arbitrator, sitting on the matter
de
novo
had to decide if the charge on
which the second respondent was dismissed was proven, not whether the
narrow basis on which the chairperson
had reached that conclusion was
correct.
[8]
Thus the factual findings of the
chairperson as a basis for a guilty verdict, could not constrain the
arbitrator in evaluating the
same charge.
[9]
In the circumstances, I am not persuaded
that it is reasonably possible another court might come to a
different conclusion and the
appeal ought to be dismissed.
Order
[10]
The second respondent’s late filing
of his application for leave to appeal is condoned.
[11]
The application for leave to appeal is
dismissed.
[12]
No order is made as to costs.
____________________
R LAGRANGE, J
Judge of the Labour
Court of South Africa
(In
chambers)
30
November 2015