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[2017] ZALCJHB 510
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Ziqubu v Commission for Conciliation, Mediation and Arbitration and Others (JR667/2012) [2017] ZALCJHB 510 (25 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: JR 667/2012
In
the matter between
NTOMBIZODWA
ZIQUBU
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
First Respondent
AND
ARBITRATION
COMMISSIONER:
T BOYCE
Second
Respondent
AFGEN
(PTY) LTD
Third
Respondent
Heard:
28 July 2017
Delivered:
25 October 2017
Summary:
The commissioner found that the employee’s dismissal was
substantively unfair as there were no fair reasons for dismissal
but
relied on same unproven charge
s
to refuse reinstatement. The facts of the case did not trigger
section 193(a-d) and the commissioner thus did not have a discretion
not to reinstate.
The Applicant
reinstated with limited back pay. The commissioner accused of
advising a party off the record not to testify-though
that not
proven, commissioners must not engage one party off the record in the
arbitration hearing on the merits of the matter
in the absence of the
other party. That will constitute misconduct. Should there be an
incident off the record that might taint
the credibility of the
proceedings such must be subsequently put on record or reported in
one way or the other.
The CCMA and the
Commissioner to be served with full pleadings even after their
declaration that they will not oppose the review
application.
JUDGMENT
MOLEBALOA
AJ
Introduction
[1]
This is a
review application launched in terms of Section 145 of the Labour
Relations Act
[1]
(the LRA) to
have the arbitration award issued under case: GAJB 29210-11 dated 20
February 2012 reviewed and set aside. The award
was issued by the
Second Respondent (the commissioner), acting under the auspices of
the First Respondent, the Commission of Conciliation
Mediation and
Arbitration (the CCMA). The application is opposed.
Condonation
applications
[2]
The review
application was launched on time. However, the Third Respondent filed
its answering affidavit outside the required time
frame with
condonation application. The Applicant also delayed filing the
replying affidavit and its opposition to the Third Respondent’s
condonation application and had to also file condonation
application.
[3]
In the
interest of justice all condonation applications were granted so as
to deal with the main application for review. None of
the parties
suffered serious prejudice. The delays were condonable.
Background
facts
[4]
The Applicant was employed by the Third Respondent as an Assistant
Bookkeeper / Creditors since 29 November 2010.
[5]
On 19 December 2011 the Third Respondent charged the Applicant with
the following charges
[2]
:
1.
Trust
Relationship broken;
2.
Bringing
company’s name in disrepute;
3.
Insubordination;
used Afgen’s resources for private use;
4.
False
accusations against management-at CCMA.
[6]
The chairperson of the disciplinary hearing did not find
[3]
the Applicant guilty of charge 4 which involved allegations of false
accusations against the Third Respondent’s management.
He
however found the Applicant guilty of the rest of the charges. In
relation to the charge of insubordination, the chairperson
issued the
Applicant with a final written warning. The chairperson then
continued to dismiss the Applicant on the charges of broken
trust
relationship and bringing the company’s name in disrepute. The
dismissal took place on 16 January 2012.
[7]
Aggrieved by the outcome of the disciplinary hearing, the Applicant
referred to the Commission for Conciliation, Mediation and
Arbitration (CCMA) a dispute of unfair labour practice against the
final written warning issued for insubordination and also a
dispute
of unfair dismissal.
[8]
Before the Applicant could refer the above two disputes there was
already a life dispute referred to under case number GAJB
29210-11 by
the Applicant also relating to unfair labour practice involving
benefits, training, work atmosphere and unfair discrimination.
[9]
The three disputes were consolidated. In the arbitration hearing and
as it appears
ex
facie
the award
[4]
, the Applicant
decided to continue only with the unfair labour practice relating to
final written warning and unfair dismissal
disputes. The
commissioner’s award was therefore limited to only these two
disputes. Nowhere in the review application does
the Applicant seem
to be persistent with the other unfair labour practice dispute.
Conversely, this judgment is also limited to
the two disputes as
dealt with by the commissioner in his award.
The arbitration award
[10]
The commissioner found that the final written warning issued to the
Applicant for alleged insubordination constituted an unfair
labour
practice. He then issued an order setting aside the final written
warning.
[11]
In respect of the unfair dismissal dispute, the commissioner found
that Third Respondent failed to prove fair reasons for dismissing
the
Applicant and ordered that the Applicant be compensated in the amount
of R19 608.00 being the equivalent of 3 months’
remuneration calculated at the employee’s rate of remuneration
on the date of dismissal. The rate was R6 536.00 per month.
Nowhere
in the review is application is the Applicant fighting the accuracy
of this rate. The essence of the commissioner’s
award in
respect of unfair dismissal dispute is that he acquitted the
Applicant of all the three charges.
[12]
In respect of reinstatement relief, the commissioner found that the
continued employment would be intolerable. In his reasoning
he
indicated as follows on paragraph 4.4.1 of the award:
“
Although the employee seeks
reinstatement, I am of the view that the circumstances surrounding
the dismissal are such that a continued
employment relationship would
be intolerable (vide Section 193 (2) of the Act. The employee, after
all, had been issued with a
final written warning for insubordination
(i.e charge 3), and Unequivocal evidence of the employer’s
senior bookkeeper (Ms.
Wostmann) was that the employee was rude and
disrespectful, she did not respond to emails and she, in fact
“totally bypassed
her superior (Ms. Wostmann). In these
circumstances, it is plain that a sound employment relationship is
simply out of the question,
and it is apparent that the only suitable
remedy for the employee’s unfair dismissal is an award of
compensation”.
The review application
[13]
Aggrieved primarily by the commissioner’s refusal to reinstate
her, the Applicant launched a review application citing
numerous
grounds. According to the Applicant, the commissioner committed the
following irregularities:
(i)
failure to reinstate the Applicant;
(ii)
reliance on the written warning in not reinstating the
Applicant;
(iii)
directing that the Applicant should not testify; and
(iv)
failure to order relief on unfair labour practice dispute.
Evaluation
[14]
The essence of the Applicant’s first two grounds of review
relates to the commissioner’s refusal to reinstate the
Applicant. The test for review is settled. It is whether or not the
decision reached by the commissioner is one that a reasonable
decision maker could not reach
[5]
and as expounded in subsequent cases.
[6]
;
[7]
[15]
Section 193 of the LRA makes provision for remedies for unfair
dismissals and unfair labour practices. It reads as follows:
(1)
“
If the Labour court or
an arbitrator appointed in terms of this Act finds that a dismissal
is unfair, the court or the arbitrator
may-
(a)
order the employer to reinstate
the employee from any date not earlier than the date of dismissal;
(b)
order the employer to re-employ
the employee, either in the work in which the employee was employed
before the dismissal or in other
reasonably suitable work on any
terms and from any date no earlier than the date of dismissal; or
(c)
order the employer to pay
compensation to the employee.
(2)
The Labour court or the
arbitrator must require the employer to reinstate or re-employ the
employee unless-
(a)
the employee does not wish to
be reinstated or re-employed;
(b)
the circumstances surrounding
the dismissal are such that a continued employment relationship would
be intolerable;
(c)
it is not reasonably
practicable for the employer to re-instate or re-employee the
employee; or
(d)
the dismissal is unfair only
because the employer did not follow a fair procedure.”
[16]
In the case of
Equity
Aviation Services Pty Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[8]
provided as follows:
“
The ordinary meaning of the
word “reinstate” is to put the employee back into the
same job or position he or she occupied
before the dismissal, on the
same terms and conditions. Reinstatement is the primary statutory
remedy in unfair dismissal disputes.
It is aimed at placing an
employee in the position he or she would have been but for the unfair
dismissal. It safeguards workers’
employment by restoring the
employment contract. Differently put, if the employees are reinstated
they resume employment on the
same terms and conditions that
prevailed at the time of their dismissal…”
[17]
In the case of National Health and Allied Workers Union (
NEHAWU)
v University of Cape Town and Others
[9]
the court said the following about security of employment: “
Security
of employment is a core value of the LRA…”
[18]
It is axiomatic from section 193 of the LRA and the
Equity
Aviation and NEHAWU
cases
supra
that reinstatement is the primary remedy in unfair dismissal disputes
and is aimed to secure employment for an employee who suffered
the
brunt of unfair dismissal.
[19]
In the case of
Maepe
v Commission for Conciliation, Mediation and Arbitration and
Another
[10]
the court said:
“
Section 193(2) of the Act
obliges-it uses the word “must”- the Labour Court or an
arbitrator must order the employer
to reinstate or re-employ the
employee whose dismissal he had found to be unfair for lack of a fair
reason or whose dismissal he
had found to be automatically unfair,
unless one or more of the situations set out in Section 193(2)(a)-(d)
applies…
…
(16) What I have just said in the
preceding paragraph means that if a case falls under one or other of
the situations listed in
section 19392) (a)-(d), it is not competent
for the Labour Court or an arbitrator to order reinstatement or
re-employment. This
is because section 193(2) makes provision as to
when
reinstatement
or re-employment must be ordered and when it must not be
ordered. In effect, it says that
reinstatement or re-employment must be ordered in all cases except
those listed in section 193(2)(a)-(d)…”
[20]
As elucidated further in the
Maepe
case, the court or a commissioner has no discretion not to reinstate
when the provisions of section 193(2)(a)-(d) are not applicable.
[21]
The commissioner in the matter
in
casu
refused reinstatement because the provisions of section 193(2)(b),
according to him, are applicable as the surrounding circumstances
of
the dismissal were such that a continued employment relationship
would be intolerable. It is this conclusion which aggrieved
the
Applicant and which I have to determine whether is a decision a
reasonable commissioner could have taken.
[22]
Not all circumstances fall within the bands of Section 193(2)(b). In
the
Maepe
case
supra
the court explained which circumstances fall within the parameters of
section 193(2)(b) by indicating as follows:
“
(14) …The situation
envisaged in par (b) is where the “circumstances surrounding
the dismissal are such that a continued
employment relationship would
be intolerable”. It is possible that in so far as the giving of
false evidence under oath may
have occurred in the disciplinary
inquiry before the dismissal, it could be said that it is one of the
circumstances surrounding
the dismissal, particularly where it was
one of the factors that were taken into account in making the
decision to dismiss…”
[23]
In the case of the
Sibeko
v Xstata Coal South Africa and Others
[11]
the court held as follows:
“
Dealing first with section
193(2), it is clear from the
Maepe
judgment and more particularly paragraph (14) thereof, about when is
permissible for a commissioner not to award reinstatement
because
“the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable”.
As
appears from that paragraph, the circumstances which can be taken
into account are those which prevailed at the time of the
dismissal
and not thereafter.”
[24]
The commissioner’s reasons to refuse reinstatement are two
folded: (1) The final written warning relating to insubordination
and
(2) relationship factor (rudeness, disrespectful behaviour towards
her senior, Ms. Wostmann). According to the commissioner
it is these
factors that would have made continued employment relationship
intolerable. I continue to deal with the two factors
ad
seriatim.
Final written warning
(insubordination)
[25]
The commissioner seems to be reprobating and approbating. He had
already made a finding that the Third Respondent committed
an unfair
labour practice by issuing the Applicant a final written warning on
insubordination. In dealing with whether or not to
reinstate the
Applicant, he however accepted the very same warning he found to be
unfair to refuse the Applicant reinstatement.
He set the warning
aside. There is therefore no warning to consider within the realms of
section 193(2)(b) of the LRA. The commissioner
had thus ostensibly
misinterpreted and misapplied the provisions of section 193(2)(b).
This irregularity is material. A reasonable
commissioner could not
have arrived at this decision.
Relationship
factor (rudeness, disrespectful behaviour, by-passing senior and
emails)
[26]
The commissioner relied also on the evidence of Ms. Wostmann to
refuse the Applicant reinstatement. Ms. Wostmann came in as
a witness
to testify on trust relationship. It is important to highlight that
the Applicant was specifically charged with breakdown
of trust
relationship as a distinct charge. Though an argument can be
proffered that the charge was improperly titled because breakdown
of
a trust is more of a consequence flowing from misconduct than a
charge itself, the bottom line is that evidence which according
to
Ms. Wostmann resulted in the breakdown of trust was adduced and
considered by the commissioner when dealing with the charge.
In
Potgieter
v Tubatse Ferrochrome and others
[12]
the court stated that “intolerability” addresses
trust relationship issues between the employer and the employee.
Hereunder is some of the evidence relating to the trust relationship
charge Ms. Wostmann adduced:
“
Commissioner:
What do you know about that, Mrs. Wostmann? Do you know anything
about that, that charge? What does that charge relate to? What did
she do that amounted to her destroying the trust relationship?
…
.
Ms. Wostmann:
First of all as her supervisor, as her superior, there was no
relationship between the two of us. She was supposed to report back
to me which never happened. She did not follow procedure
[13]
…
.
Ms Wostmann: …She
was told to give all the information she sent, all the contacts
of
the people she sent the e-mail to Mr Anderson, that he could
personally apologise for his misconduct, which was not done
[14]
….
…
.
Ms. Wostmann: She
gave no, she did not take me as a senior, she bypassed me totally.
There was no
relationship
[15]
..
…
Ms. Wostmann: As
I said she did not respect me as her superior
[16]
…
Ms. Wostmann: She did not report back
to me the way it is in her contract.
[17]
”
[27]
Having considered the above evidence that was intended to proof
charge 1 relating to the breakdown of trust relationship, the
commissioner found that there were no valid reasons to dismiss, the
essence of which is that he did not find that the Applicant
was rude,
disrespectful, or bypassing her senior. To me it is immaterial that
the offences were presented under the breakdown of
trust relationship
charge. They were before the commissioner and found them not to be
constituting valid reasons for the dismissal.
I guess that the Third
Respondent did not have problems with the commissioner’s
finding or approach otherwise it would have
filed a cross-review. In
summary it means the two charges the Third Respondent dismissed the
Applicant for
viz
breakdown
of trust relationship and bringing the company name in disrepute,
were found by the commissioner not to be valid reasons
for dismissing
the Applicant. The commissioner is therefore guilty of the same sin,
relying on evidence he rejected in refusing
the Applicant
reinstatement. This error is also material.
[28]
Even if I were to identify as insubordination some of the alleged
offences Ms. Wostmann had testified about when dealing with
the
charge of the breakdown of trust relationship, the difficulty the
Third Respondent faced will not go away. It would still mean
that the
commissioner dealt with them.
[29]
If it were to be argued that they were new charges, as the Applicant
wanted to argue, the new difficulty will arise as those
charges would
not have been put to the Applicant and thus would therefore not be
the basis on which the Applicant was dismissed.
In any event,
employers should not be allowed to elect not to charge employees with
incidents that they wear aware of with the
hope that they will rely
on them to frustrate the relief of reinstatement. Though the
arbitration hearing is a hearing
de
novo
it
is however not a platform to introduce new charges under the guise
that such is only intended to show that the employment relationship
had become intolerable. In the case of
Meyers
v National Commissioner of the South African Police Service and
others
[18]
the court said in imposing the sanction that he did during the
disciplinary hearing, commissioner Strydom had little or no regard
to
the mitigating factors. As observed by Ngalwana AJ in the Labour
Court, he regarded as an aggravating factor what he described
as an
element of “insolence…impudence, cheekiness, disrespect
and rudeness” which was an irrelevant consideration
in that the
appellant was not even charged with contravening regulation 20(s)
which deals with insolence. In the case of the
Dikobe
v Mouton N.O and Others
[19]
the LAC said the following:
“
In argument on appeal, an
allusion was made to certain rules about not taking bribes, behaving
honestly and not consuming the employer’s
stock and not being
in possession of the employer’s property, which plainly the
appellant must have known. However, as he
was not charged with any of
these felonies, reference to them is irrelevant”.
[30]
Ms. Wostmann said the Applicant was given a verbal warning for
insubordination. This does not help the Third Respondent’s
case
either as according to the progressive discipline the Third
Respondent identified itself with, it would not move from verbal
warning to dismissal without providing convincing reasons. Either
way, the Third Respondent’s difficulties presented by the
award
remained.
[31]
It is axiomatic that the reasons the commissioner relied upon are
unreasonable. The issues of disrespect, rudeness, etc were
testified
to by Ms. Wostmann under charge 1 which dealt with trust
relationship. The commissioner did not find the Applicant guilty
of
this charge. If this charges are seen as new, they were never put to
the Applicant.
[32]
Having established that the commissioner’s reliance of the
above two grounds was unreasonable, it can be safely concluded
that
the provisions of section 193(2)(b) of the LRA were not triggered
into operation.
[33]
In the
Potgieter
case
supra
the court stated that “impracticability” generally
addresses unfairness in terms of operational or similar grounds.
In
casu,
there is no evidence that covers this leg.
[34]
In the
Dikobe
[20]
case
supra
the court had the following to say with regard to the remedy:
“
Reinstatement has been sought
and must be granted. An argument was advanced to suggest that the
lapse of time militates against
such an order. The factor alone is of
no relevance. In the absence of evidence to demonstrate
intolerability or impracticality
as contemplated by
section 193(2)
of
the
Labour Relations Act 66 of 1995
, no lawful reason exists not to
order reinstatement. Axiomatically, where an employee is exonerate
from misconduct, no factual
basis can exist to find an argument that
the trust relationship is compromised.”
[35]
Taken advise from
Dikobe
case
supra
I also
do not perceive the lapse of time to militate against the order of
reinstatement. As the
Equity
Aviation
case
supra
indicated,
a court or an arbitrator has no choice not to reinstate if none of
the provisions of
section 193(2)(a)
-(d) are applicable.
[36]
I am mindful also of the fact that the Third Respondent might have
employed somebody in the position of the Applicant. This
also is not
a hindrance to reinstatement. In the case of
Manyaka
Van de Wetering Engineering (Pty
)
Ltd
[21]
the court said the fact that the dismissed employee’s position
has been filled by a new employee does not even constitute
a valid
ground to render reinstatement.
[37]
I am satisfied that there is enough evidence before me to deal with
this matter and not to remit it to the CCMA. What I am
called to do
is to come up with a fair remedy in terms of
section 193.
I am aware
also that retrospectivity should not be equated with compensation.
Whereas compensation is limited in terms of
section 194
of the LRA,
retrospectivity can be up to the date of dismissal
[22]
.
The extent of retrospectivity is a discretionary exercise. In the
Equity
Aviation
case
supra
at
par.48 the court that it is trite law that the power to grant a
remedy in
section 193
is by its nature discretionary and that the
discretion must be exercised judicially by a court that enjoys that
unfettered discretion.
[38]
In the case of
David
Themba v Mintroad Sawmills (Pty) Ltd
[23]
the court said the following about retrospectivity:
“
When it comes to
retrospectivity of reinstatement, this is however, …a
completely different issues. Reinstatement is not
necessarily coupled
with retrospectivity and is not a sine qua non of it. Retrospectivity
of reinstatement is a separate discretion
that must be exercised by
the arbitrator or the judge when deciding to award reinstatement.
Retrospectivity in simple terms relates
to what is commonly known as
back pay and constitutes what the arbitrator or judge expects an
employer to pay the employee for
the time the employee has been
languishing without remuneration as a result of the employee’s
unfair dismissal…”
[39]
The court further said in the
David
Themba
case
[24]
that the exercise of
the discretion as to the extent of retrospectivity is firmly founded
in the concept of what it is fair to
both parties. .
[40]
In the
Mediterranean
Textile Mills Pty Ltd v SA Clothing and Textile Workers Union and
Others
[25]
the court said that fairness ought to be assessed objectively on the
facts of each case.
[41]
In determining the extent of retrospectivity of the reinstatement, I
considered among others, the fact that the Applicant also
had to file
condonation applications because of non-observance of time lines
prescribed in the Rules of this Honourable Court.
I considered also,
among others, the fact that the case had to be postponed because of
the Applicant’s non-attendance. I
looked also into other delays
as contained in the file. The financial consequences of this order
was also taken into account.
[42]
In the case of
Penny
v 600 SA Holdings (Pty) Ltd
[26]
the court when dealing with the deduction of tax from employee’s
remuneration said “
An
employer has a statutory obligation in terms of the Income Tax Act 58
of 1962 (The Income Tax Act) to deduct the required tax
from any
remuneration which it pays to an employee”.
Any
back pay payable in terms of this order is also subject to tax.
[43]
In conclusion, the commissioner’s reasons as contained in the
award for the refusal to reinstate the Applicant is thus
a decision a
reasonable commissioner could not have arrived at.
Other two grounds of
review
[44]
I dismiss the Applicant’s last two of grounds of review. The
commissioner ordered relief in the unfair labour practice
dispute as
he directed that the final written warning be set aside. It is
therefore inaccurate to contest that the commissioner
did not make an
order after finding that the unfair labour practice was committed.
[45]
In respect of the commissioner directing the Applicant not to
testify, such ground was expounded in the confirmatory affidavit
[27]
deposed to by Mfusi as follows:
“
I also confirm that on 09
th
February 2012 during First Respondent normal arbitration short break
(between the parties) the second Respondent stated that the
following, that can we not see that the Third Respondent does not
have any case at all, being the fact that the Applicant should
not
testify or take a stand, and that I his representative should also
not proceed or continue with cross-examination as this will
be a
complete waste of time.”
[46]
I view these allegations against a commissioner in a very serious
light. They are expounded in full detail for the first time
in the
confirmatory affidavit attached to the replying affidavit. In the
founding affidavit no reference was made at all to the
fact that the
commissioner directed the Applicant not to testify during break off
the record.
[47]
My challenge is that though the founding affidavit was served on the
CCMA and the Second Respondent, the reply and confirmatory
affidavits
were not. It is for this reason that these expounded grounds are
dismissed as they are not properly part of this application.
The CCMA
normally abides by the decision of the court as it did in this case
after receiving the review application. There is a
practice that once
such declaration is received, no subsequent papers are served on
them. As there are probabilities that the remaining
parties can still
make allegations in both the responding and replying affidavits that
might taint the credibility of the CCMA
or the commissioner, it is my
view that fairness and justice dictate that they be served with all
pleadings even after they declared
their non-opposition. This will
enable them to reconsider their decision in the event another party
pleads allegations affecting
their integrity.
[48]
Furthermore, there are rules governing the introduction of new
evidence in the replying affidavit. Overall, the discretion
was on me
to accept this new expounded ground: In the case of
Finishing
Touch 163 (Pty) Ltd, v BHP Billiton Energy Coal SA Ltd and Others
[28]
the court set out what the approach should be when an applicant
introduces new material in its replying affidavit. The following
was
said:
“
..The court has a discretion to
allow new matter in a replying affidavit in exceptional
circumstances. A distinction must be drawn
between a case in where
the new material is first brought to light by the Applicant who knew
of it at the time when his founding
affidavit was prepared and one in
which facts alleged in the respondent’s answering affidavit
reveal the existence of a further
ground for the relief by the
Applicant”.
[49]
Since the incident allegedly happened during arbitration, the
Applicant was thus aware of this expounded ground of review when
preparing the founding affidavit but chose not to reveal it. I
therefore exercise my discretion not to allow these expounded
grounds.
[50]
I revert now to the ground of review as raised in the founding
affidavit properly served on all parties. The Applicant only
contended that the Second Respondent directed her not to testify.
However, the record reveals the following:
“
Commissioner: Yes, Mr Mfusi,
what are you doing, (that the) is the case of employer’s case,
are you calling the employee to
give evidence?
Mr. Mfusi: Mr. Commissioner, it will
not be necessary for her to take the stand”.
[51]
Clearly the commissioner provided Mfusi an opportunity to call the
Applicant to testify. This attack does not resonate with
the record.
The ground is therefore dismissed.
[52]
Notwithstanding my dismissal of the above ground, commissioners in
the arbitration proceedings must avoid engaging one party
off the
record about the merits of the case in the absence of the other
party. That will constitute misconduct. Should there be
an incident
off the record that might taint the credibility of the proceedings
such must be subsequently put on record or reported
in one way or the
other.
[53] The record reveals
as follows:
“
Commissioner: Yes, Mr Mfusi,
what are you doing, (that the) is the case of employer’s case,
are you calling the employee to
give evidence?
Mr. Mfusi: Mr.Commissioner, it will
not be necessary for her to take the stand”.
[54]
The ground of review as set out in the founding affidavit is dealt
with by the above quoted part of the record which clearly
shows the
commissioner giving Mfusi an opportunity to decide the way. The
review on that ground is therefore dismissed.
Costs
[55]
I am of the view this is not a case warranting a costs order to be
made against any of the parties.
[56] Accordingly, I make
the following order:
Order
1.
The Second
Respondent’s arbitration award made under the auspices of the
First Respondent on 20 February 2012 under case number
GAJB 29210-11
in which the Second Respondent ordered that the Third Respondent
should pay the Applicant three (3) months compensation
in the amount
of R19 608.00 is hereby reviewed and set aside.
2.
The Second
Respondent’s award of three (3) months compensation is
substituted with an order that: the Applicant is hereby
reinstated
retrospectively, such retrospectivity being limited to a period of 24
months.
3.
There is no
order as to costs.
___________________________________
M.S
Molebaloa
Acting Judge of the
Labour Court of South Africa
Appearances
:
For
the Applicant:
Applicant in Person.
For
the Third Respondent: Advocate. M Kruger
Instructed
by:
C Marshall Attorneys.
[1]
Act 66 of 1995 as amended.
[2]
Page 283 of the record.
[3]
Page 313 of the record (disciplinary
hearing outcome).
[4]
Page 6 of the Record.
[5]
see
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
2008
(2) SA 24 (CC)
[6]
see
Andre
Herholdt v Nedbank Limited
,
(Congress of South African Trade Unions as
amicus
curiae
[2013] 11 BLLR
1074 (SCA);
Gold Fields
Mining South Africa (PTY) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) and
Head of
the Department of Education v Mofokeng
and
other
s [2015] 1 BLLR 50
(LAC)
[7]
[2015] 1 BLLR 50 (LAC).
[8]
2009 (2) BCLR 111
(CC) at para 36.
[9]
2003 (2) BCLR 154
(CC).
[10]
[2008] ZALAC 2
;
(2008) 8 BLLR 723
(LAC) at par.13
[11]
(JR2189/13)
[2016] ZALCJHB 90; (2016) 37 ILJ 1230 (LC) (3 February 2016) at para
12.
[12]
(2014) 35 ILJ 2419 (LAC) at para 37.
[13]
Page 171 of the record lines 14-17.
[14]
Page 173 of the record lines 18-21.
[15]
Page 177 of the record lines 19-20.
[16]
Page 178 of the record line 23.
[17]
Page 179 of the record lines 1-2.
[18]
(2013) 34 ILJ 1729 (SCA).
[19]
[2016]
9 BLLR 902
(LAC); (2016) 37 ILJ 2285 (LAC)
at
para14.
[20]
At para 27.
[21]
(1997) 11 BLLR 1458 (CC).
[22]
See:
Republican
Press Pty Ltd v CEPPWAWU and Others
(2007)
11 BLLR 1001 (SCA).
[23]
[2015]
2 BLLR 174
(LC) at para 23.
[24]
A
t para 29.
[25]
(2012) 33 ILJ 160 (LAC) para 12.
[26]
(2003)
24 ILJ 967 (LC) at para 8.
[27]
Page 99-101 of Index Pleadings.
[28]
(2013) 2 SA 204
SCA at para 26.