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[2017] ZALCJHB 436
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Mamaila v Ilanga Outsourcing and Others (JR1142/14) [2017] ZALCJHB 436 (24 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR1142/14
In
the matter between:
ENOCK
MAMAILA
Applicant
And
ILANGA
OUTSOURCING First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
VINI
LUTCHMAN N.O.
Third
Respondent
Heard:
12 JULY 2017
Delivered
:
24 November 2017
JUDGMENT
THOMPSON,
AJ
Background
[1]
This is an application to review and set aside the arbitration award
dated 10 February 2004 and issued under case number GPRFBC25489,
under the auspices of the National Bargaining Council for the Road
Freight and Logistic Industry. The application was lodged on
6 June
2014. The Applicant initially obtained a default arbitration award
which award was rescinded on 10 October 2013. The dispute
was
arbitrated on 30 January 2014, both parties were present.
[2]
The arbitrator determined the unfair dismissal dispute and rendered
an arbitration award on 10 February 2014. This is the award
the
Applicant seeks to review and set aside. The arbitration award
reflects that the dismissal of the Applicant was in accordance
with a
fair manner and for a fair reason.
[3]
The Applicant logged this application by completing the pre-printed
forms. The third respondent filed a notice of opposition
on 14 July
2014. The third responded filed a document entitled ‘notice of
non-opposition’ on 19 June 2017.
Merits
[4]
At the commencement of the proceedings, the Respondents, although
they stated that they are not opposing the matter, sought
to bring a
number of difficulties to the attention of the Court. Mr England for
the Respondent pointed out the following:
(i)
The Applicant failed to comply with Rule 7(2) of the Rules
of Court
in that the Applicant had failed to sign his notice of motion,
(ii)
The Applicant had failed to cite the correct parties in his
application
in that he cited the third Respondent as Vini Lutherman
and not the Bargaining Council,
(iii)
In the founding affidavit the Applicant also failed to cite the
Bargaining
Council,
(iv)
The Applicant failed to depose to the founding affidavit,
(v)
The Applicant failed to identify the parties in paragraph 3.2, 3.3
and
3.4 of his founding papers,
(vi)
In the Applicant’s Rule 7A (8) (b) Notice he cited the
incorrect parties
to the dispute in that he failed to cite the
correct arbitrator as the Second Respondent.
[5]
The Applicant conceded the deficiencies in his application and
offered no explanation other than that the Applicant is a lay
person.
The Applicant submitted that the arbitration award stands to be
reviewed and set aside on the basis that he was accused
of theft,
which items were later recovered. He was asked to participate in a
polygraph test which he refused. He is not guilty
of the charges and
on this basis the arbitration award should be reviewed and set aside.
[6]
The Respondent argued on the Applicant’s papers and pointed out
that the employer informed the Applicant that he should
return to
work which he declined. In turn the Applicant sought 12 months’
compensation. The Applicant chose to leave the
worksite on 15 March
until 18 April 2013. The Applicant was telephoned and short message
systems (SMS) were sent to the Applicant
in which he was requested to
return to work. This continued over a period of five weeks. In
addition, a registered letter was sent
to the Applicant, informing
him that he should attend an internal disciplinary hearing. He was
charged with, amongst others, leaving
the premises without authority
and bringing the company’ into disrepute. The Applicant chose
not to attend the internal disciplinary
hearing which continued in
his absence. He was found guilty and dismissed.
[7]
In considering the papers, I cannot accept the Applicant’s
explanation for his dilatoriness. Without a founding affidavit,
the
Applicant’s application is fatally flawed. Normally, it would
not be necessary to consider the merits of the matter.
Even if l were
to consider the merits of the matter, I am not persuaded that any
grounds of review exist.
[8]
The Applicant has failed to provide any grounds which are remotely
such to persuade me that the award falls within the category
that it
stands to be reviewed and set aside.
[
9]
In the circumstances, the following order is made:
Order
1. The application to review and set
aside the arbitration award dated 10 February 2014 issued under case
number GPRFBC25489 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:
P M Moloi
For
the Respondent:
Mr A England