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[2015] ZALCCT 11
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Passenger Rail Agency of South Africa v Roman and Others (C773/2013) [2015] ZALCCT 11 (5 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C773/2013
DATE:
05 FEBRUARY 2015
Not
Reportable
In
the matter between:
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
T/A
METRORAIL
.......................................................................................
Applicant
And
SHAWN
ROMAN
.............................................................................
First
Respondent
ZOLA
MADOTYENI
N.O
...........................................................
Second
Respondent
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION:
....................................................................
Third
Respondent
Date
heard: 7 October 2014
Delivered:
5 February 2015
JUDGMENT
RABKIN-NAICKER
J
[1] This is an
opposed application to review an arbitration award under case number
WECT 9981-13.
[2] The first
respondent (the employee) was e
mployed as an area
manager by the applicant until he was dismissed on the 25 June 2013,
having been found guilty of the following
charges in an internal
disciplinary enquiry:
“
fraud
or serious misconduct that you claimed time (January 2013) for Mrs
Petula Smith (TSA) knowing that she was absent from work;
serious
negligence in that you claimed time (January 2012) for MrsPetula
Smith (TSA) without verifying that she was on duty for
the period
time was claimed (SIC);
serious
misconduct in that on 17/06/2011, you failed to take corrective
action when you were informed by Mr Hartnick (STSA) of Mrs
Petula
Smith’s unauthorised absence from work with the time claimed;
Serious
misconduct in that on 07/06/2012, you disregarded a
reasonable
and lawful instruction issued by Mr H Smith (act CSM/north) to sign
on and off daily, during weekdays at your nearest
station which is
Brackenfell Station”.
[3] The second
respondent (the commissioner) found that the dismissal of the
employee was procedurally fair but substantively unfair
and ordered
his reinstatement with effect from 8 October 2013, to the position he
occupied or to a similar position, on the same
or similar conditions
of service that prevailed before his dismissal. He also ordered that
the employer impose a final written
warning on the employee.
[4] The grounds
of review set out in the founding papers are that the commissioner
ignored relevant and material evidence and failed
to apply his mind
to it, rendering the outcome of the award manifestly unreasonable. In
particular, the applicant states that the
commissioner could not have
reasonably come to the conclusion that the employment relationship
between it and the employee had
not broken down. In this finding, it
submits, he clearly ignored the acrimonious and open hostility
between the parties at the
arbitration. It is argued that having
noted that the employee was entirely unrepentant and also that he had
made false accusations
that the management were corrupt, to then
conclude that the relationship was not rendered intolerable and
incapable of continuation
is glaringly unreasonable.
[5] It is also
submitted that the commissioner committed an error of law in finding
that the applicant company had failed to prove
that the employee
committed fraud.
[6] It is
apparent from the founding papers that the applicant company has not
been able to set out the salient material facts in
respect of the
background of the dispute. The reason for this is that the award
itself does not contain a summary of the evidence
given at the
arbitration in a manner that reveals the background to the dispute.
In fact the evidence of the employee in chief,
is not recorded in the
award, and as a result it is extremely difficult to determine whether
the award reached by the commissioner
is one that a reasonable
commissioner could or could not reach.
[7] The reason
for the problematic content of the arbitration award may well have
been the failure of the commissioner to take proper
notes during the
proceedings. The way that he conducted the proceedings may also have
led to his inability to cogently summarize
the evidence before him.
[8] The upshot of
the above is that this court is not in a position to properly
consider this application. In my view the award,
on its face, stands
to be reviewed and set aside. Although it is not expected of
commissioners to produce a long and detailed award,
the very basic
task of summarizing the evidence of the parties properly and in
logical sequence is required. I therefore consider
it to be in the
interests of justice that this award be reviewed and set aside and
remitted for rehearing before a commissioner
other than second
respondent.
[9] In all the
circumstances therefor I make the following order:
1. The award
under case number WECT 9981-13 is reviewed and set aside
2. The dispute is
referred for rehearing under the auspices of the third respondent,
before a commissioner other than second respondent.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
Werkmans Attorneys
First
Respondent: Carlo Swanepoel Attorneys