About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 315
|
|
Ndlela and Others v Smith and Others (JR935/15) [2017] ZALCJHB 315 (29 August 2017)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR935/15
In the matter between:
NAMBA
NDLELA AND OTHERS
Applicant
and
COMMISSIONER
DAVE SMITH
First
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
P.I.C.M
RANDFONTEIN
Third Respondent
Heard:
15 September 2016
Delivered:
29 August 2017
Summary:
An
application for the review of an arbitration award with grounds of
review which are not supported by the evidence as captured
in the
record of the arbitration proceedings cannot succeed.
JUDGMENT
MTHOMBENI
AJ;
Introduction.
[1]
This is an application to review and set aside an arbitration award
(the award), dated 5 May 2015, made by the first respondent
(the
commissioner) and issued under the auspices of the second respondent
the Commission for Conciliation, Mediation and Arbitration
(the
CCMA). The application is opposed.
Background facts.
[2]
The applicants had been employed at the third respondent, a provider
of civil engineering and related services to mines, and
were
stationed at Rustenburg.
[3]
On 28 November 2014, the third respondent dismissed the applicants
for alleged misconduct.
[4]
Aggrieved by their dismissal, the applicants approached the CCMA and
referred a dispute, claiming unfair dismissal.
[5]
Following an unsuccessful conciliation, the CCMA appointed the
commissioner to arbitrate. At the conclusion of the arbitration,
the
commissioner found that the applicants’ dismissal was
procedurally and substantively fair.
Grounds of review.
[6]
The applicants submit that the commissioner committed gross
irregularity in the conduct of the arbitration proceedings and
exceeded his powers.
[7] They submit, further,
in amplification that the commissioner:
7.1
failed to apply his mind before arriving at his decision;
7.2
was biased in that he prevented the applicants’ representative
from cross-examining
the third respondent’s witnesses and
refused to recuse himself; and
7.3
made a decision which was not supported by any evidence that was
before him.
The
award.
[8]
At the arbitration hearing, the third respondent led the evidence of
Dmitri Stavridis (Stavridis) and Johan Thompson (Thompson).
[9]
Stravidis is employed at SA Labour Dynamics (Pty) Ltd. He chaired the
disciplinary enquiry, held on 28 November 2014, which
resulted in the
dismissal of the applicants. Thompson is employed at the third
respondent as a Project Manager and is responsible
for civil work at
all the sites.
[10]
Stravidis testified that on 23 and 24 November 2014, Thompson had
issued the applicants with notices to attend a disciplinary
enquiry.
The applicants were present at the disciplinary enquiry where they
were handed out an attendance register, but they refused
to sign it.
Thereafter, he went through every notice to attend the disciplinary
enquiry and marked all those who were present.
[11]
Stravidis testified, further, that the applicants brought an
application to secure representation by their own trade union,
but he
made a ruling that external representation was not allowed as none of
the applicants were shop stewards.
[12]
Stravidis advised the applicants to state their version, but they
walked out. He advised them that he would proceed and continued
with
the disciplinary enquiry
in absentia
.
[13]
On the strength of the evidence led by Thompson, Stravidis found the
applicants guilty. He accordingly, ordered the parties
to submit
aggravating and mitigating factors by 7 November 2014. The third
respondent duly complied, but the applicants failed
to do so.
[14]
On 25 November 2014, Stravidis recommended to the third respondent
that dismissal of the applicants was the most appropriate
sanction.
[15]
Thompson testified that on 19 October 2014 he received time sheets
from Sipho Mbuyane (Mbuyane) and Petrus Monoketsi (Monoketsi),
the
supervisors. The applicants and the supervisors had signed the
timesheets. When payroll alerted Thompson to some irregularities
in
the timesheets, he realized that the applicants have claimed for
overtime which they had not worked because some of them were
on
induction training. Moreover, he had not authorized overtime work.
[16]
Thereupon, he approached the applicants, including the supervisors,
and asked for an explanation. They advised him that they
had made an
error and apologized. Subsequently, the applicants and the
supervisors submitted new timesheets, less the hours they
had claimed
for overtime.
[17]
Thomson was not convinced that the applicant had claimed overtime by
mistake. He concluded that they should be charged for
misconduct.
Consequently, he approached the applicants and issued them with
notices to attend a disciplinary enquiry, but they
refused to sign.
However, Thompson and Mbuyane signed as witnesses to the applicants’
refusal to sign.
[18]
Thompson testified, further, that on 28 November 2014 he arranged
transport for the applicants to attend the disciplinary enquiry
at
which they were present. He read out and marked the names of all the
applicants who were present.
[19]
Monoketsi testified on behalf of the applicants. His evidence is to
the effect that during the week 11 to 17 August 2014 the
applicants
had worked from 16h00 to 18h00, instead of the normal working hours,
that is 07h00 to 17h00, because concrete was delivered
late.
[20]
Mokonetsi denied that most of the applicants were on induction
training during the week in question.
[21]
On the strength of the evidence of the third respondent’s
witnesses, the commissioner found that the applicants had been
notified of their disciplinary enquiry in that Mbuyane’s
signature as a witness that the applicants had refused to sign
appeared on all the notices for the applicants and that the
applicants failed to call Mbuyane to rebut Thompson’s testimony
in this respect.
[22]
To fortify his finding, the commissioner stated that Thomson had
arranged for applicants to be transported to the hearing venue.
Thus,
they were aware of the purpose of their presence there. Moreover,
their names were recorded in an attendance register.
[23]
The commissioner also found that the applicants had walked out of the
hearing, despite advice that they should present their
version,
because Stravidis had refused to grant them their request for
external representation as none of them was a shop steward.
After
they were found guilty, Stravidis invited the applicants to submit
mitigating factors, but they failed to do so. The applicants
failed
to challenge the testimony of Sravidis and Thompson.
[24]
The commissioner concluded that, in the circumstances, the third
respondent had followed a fair procedure.
[25]
Concerning the allegation of fraud for which the applicants were
dismissed, the commissioner found that third respondent’s
version was more probable and the applicants had defrauded the third
respondent, irrespective of the non-payment for the claimed
overtime,
in that they had submitted timesheets claiming overtime payment they
had not worked for and, subsequently, submitted
timesheets less
overtime. In this regard, the commissioner opined that had the
discrepancy not been detected, the applicants would
in all likelihood
have been paid.
[26]
For all these reasons, the commissioner concluded that the
applicants’ conduct fell within the ambit of dishonesty and
their dismissal was, therefore, substantively fair.
[27]
The record of the arbitration proceedings reflect that, during the
cross-examination of Thompson by Ephraim Luthuli (Luthuli),
a trade
union representative for the applicants, Stravidis interjected saying
“asked and answered”. The commissioner
considered his
interjection as constituting an objection. Thereupon, Luthuli stood
up raising his voice at the commissioner and
demanding him to recuse
himself as he was biased for allowing Stravidis to interject without
prefacing his comment with the word
“objection”.
[28]
The commissioner ruled that he would not recuse himself as there was
no basis for such. Luthuli, thereafter, proceeded under
protest
threatening that he would take the commissioner’s award on
review.
[29]
I hold a firm view that the decision reached by the commissioner is
one that a reasonable decision-maker could reach and, hence,
there is
no basis to disturb the award.
[30]
In the result, I make the following order:
Order
1.
The application is dismissed;
2.
I make no costs order.
________________________
M Mthombeni
Acting judge of the
Labour Court of South Africa
Appearances
For Applicants:
Mr E Luthuli
Instructed
by:
Inqubela Phambili Trade Union (ITU)
For Respondent:
Advocate S Bekker
Instructed by:
Nothnagel Attorneys