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[2017] ZALCCT 45
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Makhenkaya v South African Local Government Bargaining Council (C15/2015) [2017] ZALCCT 45 (11 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
reportable
Case
no: C15/2015
In
the matter between:
ZANDISILE
MAKHENKAYA
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
ZOLA
MADOTYENI
NO
Second
Respondent
CITY
OF CAPE
TOWN
Third
Respondent
Heard
:
11 May 2017
Delivered
:
11 October 2017
JUDGMENT
RABKIN-NAICKER
J
[
1]
This is an opposed application to review an arbitration award under
case number WCM081402. The second respondent (the Arbitrator)
found
the dismissal of the applicant to have been procedurally and
substantively fair.
[2]
The applicant was dismissed pursuant to a disciplinary hearing in
which he faced the following charge:
“
You misconducted yourself in
that on or about 14 April 2914, at approximately 16H15, at the
Maitland train station you sexually
harassed a fellow Council
employee by touching her inappropriately on the back thigh and
buttock and stated that you have been
longing to be there.”
[3]
The applicant summarises his version of events in his founding
affidavit in which he avers inter alia the following: “…just
as I was about to pass by the complainant, the wind blew up her dress
and I held it and pulled the dress down with the intention
to cover
her exposed body. She angrily reacted by saying that I must leave her
alone. I sensed her anger and apologised and told
her that I simply
wanted to cover her and then continue walking on my way.”
[4]
The applicant contends that the award is not one that a reasonable
decision-maker could make in that he should have rejected
the
evidence of the complainant and her witnesses and accepted that of
the applicant and his witness. Mr Leslie for the Third Respondent
submitted that properly construed the present application amounts to
an impermissible attempt to appeal against the arbitrator’s
findings of fact.
[5]
In considering the record in this matter and the Award in question, I
can find no basis on which the relief sought by the applicant
can be
granted. It is not for this court to interfere with the Arbitrator’s
finding on the credibility of the versions of
the witnesses on either
side of the dispute.
[1]
In any event, the version proffered by the applicant at the
arbitration was inherently improbable and his only witness
contradicted
applicant’s evidence in various respects. Suffice
to say that the complainant put on the same dress she had worn on the
day
in question at the arbitration, to illustrate that it was not the
type of dress that could be blown up by the wind and certainly
not
above her armpits as alleged by the applicant. It was a snugly
fitting denim dress.
[6]
The complainant’s testimony as to what happened was
corroborated by her contemporaneous written statement; the evidence
of her sister who confirmed that she was shaken up and in a panicked
state of mind immediately after the incidence and by her manager
who
confirmed that the complainant was clearly traumatised.
[7]
Various attempts are made in submission on behalf of the applicant to
find discrepancies in the complainant’s version.
These have no
bearing on whether the Award is reasonable in relation to the full
conspectus of evidence that served before the
Arbitrator. To restate
the law as set out by the SCA in Herholdt:
“
[25] In summary, the position
regarding the review of CCMA awards is this: A review of a CCMA award
is permissible if the defect
in the proceedings falls within one of
the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of
the proceedings to
amount to a gross irregularity as contemplated by
s 145(2)(a)(ii), the arbitrator must have misconceived the
nature of the
inquiry or arrived at an unreasonable result. A result
will only be unreasonable if it is one that a reasonable arbitrator
could
not reach on all the material that was before the arbitrator.
Material errors of fact, as well as the weight and relevance to be
attached to particular facts, are not in and of themselves sufficient
for an award to be set aside, but are only of any consequence
if
their effect is to render the outcome unreasonable.”
[2]
[8]
The Award in question is well considered and carefully drafted and
properly weighs up whether the sanction of dismissal was
appropriate.
This review was previously reinstated by the Court with costs to be
costs in the review. I am not going to award costs
in this matter on
the basis that the applicant is an individual employee
[3]
. I make the following order:
Order
The
review application is dismissed.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant
:
Cheadle Thompson & Haysom INC
Third
Respondent
: G. Leslie instructed by Bisset Boehmke McBlain
[1]
Mphigalale v Safety & Security Sectoral Bargaining Council &
others (2012) 33 ILJ 1464 (LC) at para 15
[2]
Herholdt v Nedbank Ltd (Congress of SA Trade G Unions as Amicus
Curiae) 2013 (6) SA 224 (SCA)
[3]
National
Union of Mineworkers v East Rand Gold & Uranium Co
[1991] ZASCA 168
;
1992 (1)
SA 700
(A)