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[2018] ZALCJHB 403
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Dr Kenneth Kaunda District Municipality v South African Local Government Bargaining Council and Others (JR2702/14) [2018] ZALCJHB 403 (22 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
of interest to the judges
Case
no: JR 2702/14
In
the matter between:
DR
KENNETH KAUNDA DISTRICT MUNICPALITY Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
KOBUS
ERASMUS N.O.
Second Respondent
IMATU
obo MOLEFE M
Third Respondent
Heard:
22 June 2017
Delivered:
22 June 2017
Edited:
28 November 2018
EX TEMPORE
JUDGMENT
SALOOJEE
AJ
[1]
This is an
application to review and set aside the second respondent’s
(“the commissioner’s”) award which
found the
employee’s dismissal to be both procedurally and substantively
unfair. The commissioner also ordered reinstatement
together with
back pay.
[2]
The
overarching impression of the grounds of review is that the employee
assisted fellow employees in litigation against his employer.
I have
an issue with this approach as an employee should be able to exercise
his rights he has in the Constitution, as well as
the Labour
Relations Act. The employer’s complaint is that the employee
assisted his fellow employees under the guise that
he was sick to
attended the Labour Court and that the commissioner ignored this fact
or issue. However, this issue is canvassed
in the award and one just
has to look at paragraphs 35.4 until paragraph 35.7
[3]
The second
ground of the review is a refusal of a postponement at the
commencement of the hearing. The commissioner dealt with this
issue
if one has a look at paragraph 7 to 10 of the award. The commissioner
refused the postponement on this basis that the employer
asked for a
postponement because its legal representative was not present at the
hearing. However, at the time the employer had
not made an
application for legal representation.
[4]
The third
ground review is that there were nineteen charges proffered against
the employee. One just has to look at paragraph
35.1 of the
award which the applicant’s representative read into the record
and that will be the paragraph dealing with the
“shotgun”
approach.
[5]
The fourth
ground of review, which I find to be a strange ground of review as it
seems to come up on many different occasions, is
that the
commissioner ignored facts that were presented at the disciplinary
hearing. It is trite law that the arbitration is a
hearing
de
novo
and unless evidence is specifically referred to in the arbitration
hearing, the commissioner cannot take it into account.
[6]
The nub of
the commissioner’s findings is based on Clause 6.3 of the
disciplinary code. Clause 6.3 states that after being
aware of
misconduct that the employer shall proceed within a period of three
months be charged for, proceed with disciplinary hearing
and in the
event that the employer does not do so within the stipulated
timeframe, the employer should apply for condonation. The
employer
did not do so and the basis of procedural unfairness finding is based
on the interpretation of Clause 6.3.
[7]
Now, the
standard in a review application is whether a commissioner arrived at
a conclusion that no other reasonable commissioner
could arrive at.
In the
Goldfields
case, the Labour Appeal Court stated that when reviewing an award the
court must consider whether the commissioner considered the
principal
issue, evaluated facts presented at the hearing and came to a
conclusion that is reasonable.
[8]
The
commissioner considered the principal issue and this can be found in
paragraphs 1 to 3 of the award.
[9]
The
commissioner also evaluated the facts presented at the arbitration
hearing. The grounds of review do not amount to much and
based on the
evaluation of the commissioner’s facts at the hearing, the
commissioner did come to a conclusion that is reasonable.
[10]
On the
issue of costs the employer submitted they would not seek costs
against the employee however no address is made for the other
side.
In relation, the employees’ representatives submitted that
should the employee be successful the employee should be
awarded
costs. I see no reason for this court should depart form the
principal that costs should not follow the cause.
Order
[11]
In the
premises, the following order is made.
1.
The
application is dismissed.
2.
The
applicant is to pay the cost of the third respondent.
Y
SALOOJEE
Acting
Judge of the Labour Court of South Africa