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[2019] ZALCJHB 195
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Vena v CCMA and Others (JR2783/17) [2019] ZALCJHB 195 (2 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
2783/17
In
the matter between:
NCEBA STEVEN
VENA
Applicant
and
CCMA
First
Respondent
COMMISSIONER
JABULANI MASHABA
Second Respondent
DDL
SECURITY SERVICES (PTY) LTD T/A
24/7
SECURITY
SERVICES
Third Respondent
Heard
:
31 July 2019
Delivered
:
2 August 2019
Summary:
An opposed review application – The outcome is one that a
reasonable decision maker can arrive at. Held: (1) The application
is
dismissed. (2) Each party to pay its own costs.
JUDGMENT
MOSHOANA, J
Introduction
[1]
This is an
application seeking to review and set aside an award issued by the
second respondent in terms of which, it was found
that the dismissal
of the applicant was fair. The applicant contends that the award is
tainted with defects and thus reviewable
under the provisions of
section 145 of the Labour Relations Act
[1]
(LRA). The application is opposed by the third respondent.
Background
facts
[2]
The applicant was employed as a Cluster
Manager effective 29 September 2014. He was dismissed on 05 July
2017. On or about 20 June
2017, the third respondent’s control
room was advised that there was an armed robbery in Parkmore. The
applicant advised
the caller that one Raider Mushwane (Mushwane) was
the night shift manager and should attend to the reported robbery.
The applicant
left the control room after handing over the phone to
Mushwane.
[3]
The third respondent’s Operations
Manager was contacted and advised of the applicant’s refusal to
attend to the incident
in his area of responsibility-Parkmore. The
Operations Manager attempted to speak to the applicant to no success.
Owing to that,
Mushwane was instructed to attend to the matter
instead. Resultantly, the applicant was charged with acts of
misconduct. Following
a disciplinary hearing, the applicant was found
guilty and dismissed. Aggrieved by his dismissal, the applicant
referred a dispute
alleging unfair dismissal. After hearing evidence
at arbitration, the second respondent issued the award under attack.
The applicant
was displeased with the award and approached this Court
for relief.
Grounds
of Review
[4]
The applicant alleges that the second respondent
committed gross irregularities by failing to take into account
evidence, refusing
to allow valid evidence, ignoring statutory and
legal principles with regard to overtime work, ignored his inputs,
unduly assisted
the third respondent, failed to apply mind and
delivered a biased award.
Evaluation
[5]
By
now it is trite what the test for review is in this court. The
question that needs to be asked is whether the decision is one
that a
reasonable decision maker may arrive at
[2]
.
Proper consideration of the applicant’s grounds of review
reveals that what the applicant is actually seeking is an appeal,
which power this Court does not have over an arbitration award. There
is no dispute that the applicant failed to attend to the
incident as
reported. There is absolutely no justification for the failure to
attend. A finding that the applicant was guilty as
charged is
consistent with the evidence presented and certainly one that a
reasonable commissioner may arrive at. The grounds relied
upon by the
applicant lack merit.
[6]
This finding fits with the evidence presented like
a glove. There can be no suggestion that this finding is inconsistent
with the
evidence presented before him. Thus, this application is
bound to fail.
[7]
In summary, the second respondent did not commit
any irregularity nor misconduct. His findings fall within the bounds
of reasonableness.
The award is free of any defect thus not
reviewable in law.
[8]
Regarding costs, I am of a view that an
appropriate order to make is for each party to bear its own costs.
[9]
In the results I make the following order:
Order
1.
The
application is dismissed.
2.
Each
Party to pay its own costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
In Person
For
the 3
rd
Respondent: Mr C Levin of Clifford Levin Inc,
Cheltondale.
[1]
Act 66 of 1995, as amended.
[2]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2008)
27 ILJ 2405 (CC).