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[2018] ZALCJHB 165
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Oceanside 145 CC trading as Sasol Ruimsig v Dispute Resolution Centre a division of the Motor Industry Bargaining Council and Others (JR1496/15) [2018] ZALCJHB 165 (26 April 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JR 1496/15
In
the matter between:
OCEANSIDE
145 CC TRADING AS SASOL
RUIMSIG
APPLICANT
and
DISPUTE
RESOLUTION CENTRE
A
DIVISION OF THE MOTOR INDUSTRY BARGAINING COUNCIL
COMMISSIONER
PRINCE KEKANA N.O.
JAMES MAFEREKA
FIRST
RESPONDENT
SECOND
RESPONDENT
THIRD RESPONDENT
Date
heard: 22 August 2017
Date
delivered: 22 August 2017
Edited:
26 April 2018
JUDGMENT
–
EX TEMPORE
MYBURGH
AJ
[1]
This is an application in terms of section
145 of the LRA to review and set aside an arbitration award issued by
the commissioner
in terms of which she found the dismissal of the
employee by the employer to be substantively unfair and awarded him
three months’
remuneration as compensation.
[2]
The employee worked as a merchandiser at
the employer’s convenience store which is attached to its
petrol station. He was
dismissed on 16 October 2014 after having
been found guilty at a disciplinary enquiry of gross negligence
(relating generally
to his merchandising duties), insubordination
(relating to his failure to heed an instruction to carry out
stock-takes) and poor
time-keeping (relating primarily to him coming
late for work).
[3]
At the ensuing arbitration, Mr Ramlakan
testified for the employer – he being the owner of the
business. The employee then
gave evidence in his defence.
[4]
On 13 July 2015, the commissioner issued
his award in which she held as stated above. As far as the
commissioner was concerned,
the employer “failed to prove that
the employee committed any misconduct”, and “did not
discharge the onus to
prove that the dismissal was substantively
fair”.
[5]
The commissioner came to this conclusion on
the basis of the following three paragraphs:
“
[23] The
employer also had to prove that the employee contravened a rule in
the workplace. The employer failed to call the two managers
who gave
the instructions and observed the misconduct. Ramlakan’s
evidence was mainly hearsay and I attach no weight to it.
The
employee proved that there were two merchandisers doing the same
duties. The employer failed to prove that the misconduct,
if any, was
committed by the employee and not the other merchandiser. The
employer was further inconsistent in charging the employee
only and
not the other merchandiser for stock that allegedly accumulated for
two weeks, neglected by both merchandisers.
[24] The employee’s version was
probable that only managers place stock orders and also had the
authority to mark stock down.
The two managers were not disciplined
for overstocking, failing to mark the stock down and also for poor
management of the store.
If it is true that damage and expired stock
accumulated for two weeks under their watch and stock losses were
high, they should
be the first to be held accountable.
[25] The employer failed to produce
alleged proof that the employee was not adhering to times. The
employee’s version is probable
that he reported for work in
time and also worked until late on some days.”
[6]
To my mind, the award is bristling with
misdirections and errors. Amongst other things, Mr
Ramlakan
had personal knowledge of the employee’s alleged misconduct –
his evidence was not hearsay and could not simply
be disregarded, as
the commissioner did.
Furthermore, the
commissioner made findings of inconsistency in relation to the second
merchandiser and two store managers, which
issues were not properly
advanced during the course of the arbitration.
[7]
But to my mind, the most material flaw in
the award is that the commissioner failed to deal with the second
charge relating to the
employee having been insubordinate in not
undertaking stock-takes. Instead he dealt only with the first charge
(gross negligence)
and third charge (poor time-keeping). In my view,
had the commissioner applied his mind to the second charge, he would
have concluded
that the employee was guilty and would have upheld his
dismissal on this charge alone – this in the light of the fact
(as
found by the commissioner in paragraph 26 of his award) that the
employee was on a valid final written warning at the time for the
same misconduct. To my mind, on the evidence presented, the
commissioner could not reasonably have come to a different
conclusion.
[8]
It follows from the aforegoing that it is
unnecessary for me to assess the reasonableness of the commissioner’s
conclusions
in relation to the first and third charges.
[9]
In the result, the following order is made:
1.
The
arbitration
award
issued by the second respondent on 13 July 2015 is reviewed and set
aside;
2.
The arbitration award is substituted with
an order that the dismissal of the
third
respondent
by the applicant was fair;
3.
There is no order as to costs.
________________
A
Myburgh
Acting
judge of the Labour Court of South Africa
Appearances
For
the applicant:
A Mihaleto (Du Randt Du Toit Pelser Attorneys)
For
the Respondent:
M Sekhethela
Instructed
by:
Wits Law Clinic