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[2016] ZALCJHB 57
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Enlightened Security Force (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR283/2012) [2016] ZALCJHB 57 (16 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR283/2012
In
the matter between:
ENLIGHTENED
SECURITY FORCE (PTY) LIMITED
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER D
HAUPT
Second
Respondent
ROMEO MALGAS
Third Respondent
Heard:
08 July 2015
Delivered:
16 February 2016
JUDGMENT
VAN
AS, AJ
Introduction
[1]
This is an application in terms of section
145 of the Labour Relations Act 66 of 1995 (“the LRA”) to
review and set
aside the arbitration award handed down by the second
respondent (“the Commissioner”) on 2 December 2011 (“the
arbitration award”).
[2]
The third respondent (“the employee”)
opposes the review application. The first respondent (“the
CCMA”)
and the Commissioner abide the decision of this Court.
Preliminary
issue
[3]
At the commencement of this matter, on 8
July 2014, Mr Thabo Sethiba, the National IR Manager of the
applicant, applied for a postponement
of the review application
because the applicant had appointed a new attorney of record who had
failed to arrive at Court. Mr De
Kock of Carelse Khan Attorneys, who
appeared for the employee, opposed the application for a postponement
on the basis that the
employee’s attorneys had telefaxed the
notice of set down to the applicant on 15 June 2015 and had also sent
the notice of
set down per registered post to the applicant on that
date.
[4]
There is a notice of withdrawal as the
applicant’s attorneys of record which Nkadimeng Attorneys filed
on 20 December 2012
in the Court file. There is no indication that
the applicant has appointed new attorneys of record since December
2012 and Mr Sethiba
also confirmed that the applicant has only
recently taken steps to appoint a new attorney of record.
[5]
The applicant is
dominus
litis
in these review proceedings and
therefore should have taken reasonable steps to prosecute the review
application. It is apparent
from the Court file that the applicant
has taken no steps since December 2012 and the employee’s
attorneys have arranged
for the matter to be set down before this
Court.
[6]
Accordingly, I am satisfied that the
applicant has not made out a case for the postponement of the review
application and, therefore,
directed that the matter should proceed
before this Court.
The
merits of the review application
[7]
Mr Sethiba made no submissions on the
merits of the review application other than to state that the
compensation awarded to the
employee appeared to be excessive. He did
not motivate this submission.
[8]
Mr De Kock submitted that the applicant
does not challenge the Commissioner’s finding that the
employee’s dismissal
was procedurally unfair in the review
application. He further submitted that insofar as the applicant’s
challenge on the
substantive fairness of the employee’s
dismissal is concerned, the conclusion reached by the Commissioner is
a conclusion
which a reasonable decision-maker could have reached on
the evidence.
[9]
I have read and considered the papers in
the review application and the heads of argument which were filed by
the parties. It is
so that the applicant does not seek to review the
finding on procedural unfairness in its founding affidavit and I,
therefore,
need not further consider this issue.
[10]
Insofar as substantive fairness is
concerned, it is apparent from the arbitration award that the
Commissioner carefully assessed
the relevant evidence before
concluding correctly, in my view, that the applicant had failed to
adduce evidence to prove the three
charges (misuse of company fuel,
misuse of company vehicles and dismissal of staff without consulting
anyone) which culminated
in the dismissal of the employee.
[11]
I,
therefore, agree with Mr De Kock’s submission that the
conclusion reached by the Commissioner as to substantive fairness
is
a conclusion which a reasonable decision-maker could have reached on
the evidence before the Commissioner in the arbitration
proceedings.
[1]
Costs
[12]
Mr De Kock submitted that I should award
punitive costs against the applicant because of the dilatory manner
in which the applicant
has prosecuted the review application and its
insistence on launching the review application in Johannesburg
whereas the employee
was employed in the Western Cape and the
arbitration proceedings were held at the offices of the CCMA in Cape
Town.
[13]
Whilst I am sympathetic to the personal
circumstances of the employee and appreciate that launching the
review application in Johannesburg
may have resulted in the employee
incurring additional costs, I do not believe that either of these
reasons warrant the award of
punitive costs against the applicant.
The employee could simply have applied for the matter to be
transferred to the Labour Court
in Cape Town thereby avoiding such
additional travelling costs. Similarly, the employee could have
applied for the dismissal of
the review application which could also
have been transferred to the Labour Court in Cape Town.
[14]
Accordingly, I make the following order:
14.1
The review application is dismissed;
14.2
The applicant is to pay the employee’s
costs on a party and party scale.
____________
Van
As
Acting
Judge of the Labour Court
Appearances
For
the applicant:
Mr T Sethiba
For
the employee:
Mr C De Kock of CK Attorneys
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para 110.