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[2015] ZALCJHB 419
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Ambro Sales v Metal Engineering Industries Bargaining Council and Others (JR1621/09) [2015] ZALCJHB 419 (30 November 2015)
Not
Reportable
THE
LABOUR COURT OF SOUTH AFRICA
IN
JOHANNESBURG
Case
no: JR 1621/09
In
the matter between:
AMBRO SALES
Applicant
and
METAL
ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
First Respondent
SIPHO DLAMINI
N.O.
NATIONAL UNION
OF METALWORKERS OF SOUTH AFRICA obo MOSES GAMA
Second
Respondent
Third Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
[1]
The third respondent in this matter has
applied for leave to appeal against the judgment handed down in terms
of which I held that
the arbitrator’s finding that the third
respondent’s dismissal by the applicant was substantively
unfair should be
set aside and substituted with a finding that his
dismissal was substantively fair.
[2]
In my judgement, I found that the
arbitrator failed to consider the credibility of the third respondent
in circumstances where at
the time he was questioned about the
overtime due to him, he never suggested that he had cleared it with
his supervisor, but only
advanced this defence belatedly in the
arbitration proceedings. I also found that in the absence of an
explanation for the belated
advancement of this defence, no
reasonable arbitrator would have accepted it as credible, and that a
conclusion that the third
respondent had not acted dishonestly in
relation to his overtime entitlement was an untenable conclusion.
[3]
In summary, the third respondent claims
that I erred by concluding that his evidence was contradictory
because he only raised his
critical defence at the arbitration and
that this required the arbitrator to make a credibility finding
against him. He also claims
that I erred in finding him guilty on the
first charge of making a misrepresentation in relation to his
overtime claim.
[4]
In support of the first ground, the third
respondent suggests that because the hearing before an arbitrator is
a
de novo
one, he was entitled to advance a defence not previously advanced. It
is true that a party may advance new evidence at the arbitration
hearing not previously relied upon in earlier disciplinary
proceedings. However, when the new evidence is evidence that must
have
been known to that party at the time of the initial proceedings
and particularly where it is, as in this instance, evidence that
is
fundamental to that party’s case then the credibility of that
evidence naturally arises for consideration. The reason
for this
ought to be obvious: if a party knew of that critical evidence at the
time of the original proceedings, then why did that
party not raise
it then? The third respondent never explained why this defence was
introduced at such a late stage and in any event
it conflicted with
his other defence that he did not need permission to spend time at
the bank because he was doing it during his
lunch hour.
[5]
In relation to the second ground, there was
no evidence to suggest that the third respondent did not think he
would be paid for
overtime work between 14H00 and 16H47 on the
afternoon in question in circumstances in which he knew he was not
entitled to payment
for all that period. It was suggested that it was
the duty of the employer to have called the third respondent’s
supervisor
to rebut his belated defence that he had obtained
permission to do his banking during the afternoon. If that had been
the third
respondent’s defence from the inception of
disciplinary proceedings against him, there may have been some merit
in such an
argument, but given the fact that this defence was
belatedly raised and given that the third respondent himself did not
make any
effort to call his supervisor to corroborate his version,
the arbitrator had to consider the merits of the third respondent’s
defence on the evidence before him. The essential characteristics of
the evidence in support of his version was that it was an
obvious
version for which no credible explanation was advanced for its late
introduction, which was also uncorroborated and in
conflict with his
alternative defence. Given that, there was more than sufficient basis
to conclude that the defence should be
rejected, even in the absence
of the employer calling a witness in rebuttal.
[6]
In light of the above, I am not persuaded
that there is a reasonable possibility that another court might come
to a different conclusion
and the application for leave to appeal
ought to be dismissed.
Order
[7]
The application for leave to appeal is
dismissed.
[8]
No order is made as to costs.
--------------------------------
R
LAGRANGE, J
Judge
of the Labour Court
(In
chambers) 30 November 2015