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[2017] ZALCJHB 438
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Martins v Commissioner for Conciliation, Mediation and Arbitration and Others (JR2021/14) [2017] ZALCJHB 438 (22 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not
Reportable
Case
No: JR2021/14
In
the matter between:
STANLEY
MARTINS
Applicant
and
COMMISSIONER
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
JOYCE NKOPANE N.O.
Second Respondent
MR
PRICE
SPORT
Third Respondent
Heard:
12 JULY 2017
Delivered
:
22 November 2017
JUDGMENT
THOMPSON,
AJ
Background.
[1]
This is an application to review and set aside the arbitration award
issued on 5 September 2014 under case number GAJB1033/14.
[2]
The Applicant also sought to
apply for condonation of the late filing of the record in the
arbitration proceedings as well as late
filing of the notice in terms
of Rule 7A(8)(a) of the Labour Court Rules
[1]
and accompanying papers. The application for condonation is not
opposed. I note the endeavours by the Applicant’s attorney
and
the prevailing postal strike. I also take note that the Third
Respondent’s attorneys only came on record on 4 December
2014.
I am of the view that the Applicant has shown just cause to condone
the late filing of the record and Rule 7A (8)(b) notification.
The
review.
[3]
The Applicant seeks to review and set aside the arbitration award in
which his dismissal was found to be both procedurally and
substantively fair. The Applicant was employed as an Area Manager and
was dismissed on 9 April 2014.
[
4]
Mr Buckley for the Applicant argued that the award was unreasonable
in that the Arbitrator failed to attach sufficient weight
to the fact
that the evidence of the Respondent’s witness, Ms Julie Van
Zyl, and that Ms Van Zyl was an unreliable witness
and who lied under
oath. The Applicant stated that Ms Van Zyl could not remember dates
and times. She was not accurate regarding
the date that she left the
employer. The witness also confused dates, stating that it was 19
March 2014 instead of 19 February
2014. There is no evidence to
suggest that either 19 February or 19 March 2014 is the correct date.
I am of the view that this
is not central to any fact in dispute.
[5]
The Applicant submits that Ms Van Zyl acknowledged that she had no
idea how stock counts work. Ms Van Zyl’s testimony
is clear
that she was instructed by the Applicant to copy and paste the
previous week’s counts and was asked not to tell.
[2]
This was challenged by the Applicant in cross examination.
[3]
[6]
The Applicant submits that Ms Van Zyl was extremely vague as she
testified that she has no idea how the stock counts work in
the
stores. This may be so but the witness’ evidence is clear
relating to an instruction she received from the Applicant
to cut and
paste the previous week’s counts. Her ignorance relating to the
method in which the accounts are written up in
the store is not in
question. The Applicant has failed to demonstrate that the
Arbitrator’s finding in accepting Van Zyls
vesion is such that
no reasonable arbitrators would not have accepted her version on a
balance of probabilities.
[7]
The Applicant further argues that the issue of which petty cash
policy was in place at that time and the witness, Mr Olivier’s
confusion in this regard was raised. It is of significant importance
that both policies require authorisation. The question is
whether
petty cash should have been used for a personal taxi fee and whether
it had been authorised. The Applicant was late and
I can find no
reason for the Third Respondent to pay for his transport without
authorisation.
[8]
The Applicant’s evidence
[4]
is not clear at all. The submission that on previous occasions
authorisation had been obtained in terms of the policy, takes the
matter no further. The Applicant does not suggest or refer this Court
to any evidence led or proof that petty cash had been authorised
for
such a reason. An arbitration process is a
de
novo
proceeding and l take
note of charge 3 which specifically reads i.e. (Kempton Park Week 1-
Boksburg Week 2). These are examples
of the transgression and does
not exclude evidence on further transgressions of a similar nature.
[9]
The Applicant in his fourth ground of review refers to the evidence
of Mr Frank Mosipa who allegedly changed his evidence regarding
material aspects. Mosipa contradicts himself relating to the date of
introduction of the policy, specifically end of 2013 and beginning
of
2014. I am of the view that the 48 hour rule and its introduction of
is of secondary importance. What is central to charge 2
is
authorisation and the holding of the funds. The Applicant withdraws
R800-00 from petty cash ostensibly to rent a trailer which
he does
not hire and holds the money for 9 days. The Applicants version that
he had to travel is unconvincing. Significantly the
Applicant had no
authorisation to withdraw petty cash.
[10]
The Third Respondent’s counsel raised the issue that the
factual and legal grounds upon which the Applicant relies should
be
set out in his founding papers. In
Northam
Platinum Ltd vs Fganygo NO and Others
[5]
,
it is clear that a ground for review raised for the first time in
argument cannot be sustained. I cannot take cognisance of the
further
grounds presented by the Applicant in its argument for example the
appropriateness of the sanction and the failure to lead
evidence by
the Third Respondent of the breakdown of the trust relationship.
[11]
In terms of the two prevailing policies the arbitrator finds that the
Applicant did not comply with either of the procedures.
Both policies
require prior authorisation. The applicant states that on the second
occasion, he received authorisation telephonically
from Olivier.
Olivier denies this. The Arbitrator considered the
contradictory versions of both the Applicant and Olivier
and makes
the determination that Olivier’s version is more probable. The
Applicant in his submissions stated that all the
witnesses lied under
oath and the arbitrator was biased. The Applicant has not provided
any substance to these arguments to the
required degree. The
Applicant has failed to illustrate that the arbitration award is such
that no reasonable arbitrator would
make such a finding.
[12]
Under the circumstances, the following order is made:
Order
1.
The application to review and set aside the arbitration award under
case number
GAJB10333/14 is dismissed.
2.
There is no order as to costs.
______________
JM
THOMPSON
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate H. Buckeley
For
the Respondent:
Advocate Z. Ngwenya
Instructed
by:
Shepstone and Wylie
[1]
(8) The applicant must
within 10 days after the registrar has made the record available
either- (a) by
delivery of a notice and
accompanying affidavit, amend, add to or vary the terms of the
notice of motion and supplement the supporting
affidavit; or
(b)
deliver a notice that the applicant stands by its notice of motion
[2]
Page 46
line 10 of the typed transcript
[3]
See page 62
of the paginated bundle, line 18
[4]
See
paragraph 12.23 of the supplementary affidavit, p.57 of the
paginated bundle
[5]
(2010) 31
ILJ 713 (LC)