THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR114/23
In the matter between:
LYMON SIBUSISO VILAKAZI Applicant
and
AVRAGYSTIX (PTY) LTD First Respondent
KHULULEKANI HOPEWELL XAMESI Second Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION (CCMA) Third Respondent
Heard: 23 July 2025
Delivered: 01 August 2025
JUDGMENT
ERASMUS, AJ
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Introduction
[1] This is an application for the review and setting aside of an arbitration award
dated 19 December 2022 which award was rendered by the Second Respondent
(Commissioner) under the auspices of the Third Respondent , the Commission for
Conciliation, Mediation and Arbitration (CCMA).
[2] The review application was opposed by the First Respondent (Respondent).
Preliminary issues
[3] The application did not follow the usual process due to the Applicant being a
layperson representing himself. More so, he filed his notice in terms of rule 7A(8) of
the Rules for the Conduct of Proceedings in the Labour Court (the rules) to stand by
his papers on 24 February 2023 after the CCMA had issued their notice in terms of
rule 7A(3) confirming that the record had been dispatched to the Court, on 15
February 2023.
[4] After a request by the Respondent that the Applicant comply with the Court
rules, more specifically that he files the record of the proceedings at the CCMA, and
the Applicant not complying with same, the Respondent lodged its answering
affidavit in the absence of having been provided with the record of the CCMA
proceedings.
[5] The Applicant initially submitted that the Respondent’s answering affidavit
was late as it had not been filed within 10 days of the rule 7A(8) notice, but during
argument accepted that the Respondent was not obliged to lodge its answering
affidavit in the absence of having been provided with the record. The point was
therefore abandoned.
[6] The Respondent raised the point that the Applicant’s application was deemed
to have been withdrawn due to the late delivery of the record. Although this point
was not raised or addressed in the heads of argument, it was raised in Court based
on a notice to that effect having been filed by the Respondent.
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[7] In this regard, Ms Moyo for the Respondent initially submitted that the record
should have been filed within 60 calendar days after the notice in terms of rule 7A(3)
had been filed on 15 February 2023, but during argument correctly conceded that
the requirement is what has conveniently been referred to as Court days, being the
days excluding Saturdays, Sundays and Public Holidays.
[8] She then contended that the record should therefore have been delivered on
or before 8 May 2023 and that it had only been served on 9 May 2023 and filed on
12 May 2023.
[9] In calculating the requisite number of days from 15 February 2023, excluding
Saturdays, Sundays and Public Holidays, it is clear that the Respondent was
mistaken in their calculations as the record was only due on 17 May 2023.
[10] The record was therefore filed and served within the requisite time period and
the review is not one that can be regarded as deemed withdrawn.
[11] The application therefore proceeded on an opposed basis on the merits of the
review application.
Background facts
[12] The Applicant was employed by the Respondent with effect from 7 June 2022
as a sales agent in terms of a one-month training agreement.
[13] On 12 July 2022, the Applicant and Respondent concluded a permanent
indefinite contract of employment subject to a three-month probation period.
[14] On 19 August 2023, the Applicant was served with a notice of suspension and
a notice to attend a disciplinary inquiry.
[15] The notice of suspension stated as follows:
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‘You are hereby informed that you are suspended with immediate effect from
your employ pending the outcome of an investigation to be conduc ted by the
Company.’ (own emphasis added)
[16] It also advised the A pplicant, amongst others, that his suspension would be
on ‘full pay’ and it provided details of two charges against him as follows:
‘Gross insubordination
Gross insubordination in that on the 18 th August 2022, you refused to obey a
reasonable and lawful instruction relating to a request to work in an extra hour
which was going to be replaced on the 19 th August 2022 by leaving 1 hour
early.
Gross negligence
In that you failed, without proper cause to perform your duties with the proper
care required in that you used the incorrect dispositioning of hot leads
allocated to you, which resulted in an escalation from your client.’
[17] The notice to attend a disciplinary inquiry stated as follows:
“KINDLY TAKE NOTICE THAT an inquiry will be held to investigate the
alleged offence/s as detailed below.” (own emphasis added)
[18] It then notified the Applicant of his rights in respect of the inquiry and
reiterated that the same charges as being the nature of the complaints against the
Applicant. The notice recorded the date of the inquiry as being 29 August 2022 at
08h30.
[19] On 22 August 2022, the Applicant addressed an email to the Respondent’s
Human Resources Manager, Ms Neo Makhene, raising concerns regarding
premeditation, bias and presumptuousness insofar as his suspension was
concerned. He requested Ms Makhene to respond to certain questions which he had
posed to her in his email. He sent another email to her on 23 August 2022, advising
that her failure to respond was hindering his ability to prepare.
[20] Ms Makhene replied to his email on 24 August 2022, responding to the
questions and advising that details of the charges would be provided in the hearing.
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She also advised him that he could be given access to his work ‘ machine’, should he
need access for purposes of preparation.
[21] The reply did not find favour with the Applicant , which he made known on
24 August 2022, and on 25 August 2022 he referred an unfair labour practice dispute
to the CCMA, claiming that he had been unfairly suspended. He sought upliftment of
his suspension and that the Respondent attend to a grievance he had lodged and
which he felt was overlooked.
[22] The CCMA notified the parties on 29 August 2022 that the matter had been
set down for Con/Arb on 12 September 2022.
[23] The Applicant did not attend the disciplinary inquiry on 29 August 2022 as
scheduled. When contacted to enquire about his non- attendance, the Applicant
advised the chairperson and Ms Makhene that he will not be attending the inquiry on
that day and that the CCMA proceedings in respect of his unfair suspension claim
must be concluded first, before the disciplinary inquiry could proceed.
[24] The Applicant was not willing to concede to the request and the hearing
proceeded in the Applicant’s absence. The outcome of the inquiry was rendered on
31 August 2022 in terms of which the Applicant was found guilty of both charges and
summarily dismissed and the outcome was communicated to the Applicant on 1
September 2022.
[25] The alleged unfair suspension dispute was set down for arbitration for
20 October 2022 after conciliation had failed.
[26] After the first day of arbitration, the Applicant applied for the recusal of
Commissioner Cebekhulu who was the first commissioner appointed to arbitrate the
matter. The Applicant alleged that Commissioner Cebekhul u was biased and he
listed a number of reasons in support of his contention of bias . These included that
the Commissioner did not follow the provisions of sections 192(1) and (2) of the
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Labour Relations Act 1 (LRA) in that he made the Applicant lead his evidence first .
This, the Applicant construed as having been done by the said commissioner to test
the waters for the Respondent in respect of the strength of the Applicant’s case. The
Applicant refused to accept that section 192 of the LRA applies only to dismissal
disputes and not to unfair suspension disputes.
[27] In brief, t he Applicant also contended that Commissioner Cebekhulu was
biased in expressing the view that the disciplinary charges were not relevant to the
unfair suspension dispute; in asking questions ; in not acting in an inquisitorial
manner for the establishment of facts but instead to exploit the Applicant on behalf of
the Respondent and to deliberately confuse the Applicant ; in indicating that the
arbitration will probably only be set down for continuance in January 2023 due to
Commissioner Cebekhulu being fully booked for the following weeks and December
being a short month; that the said Commissioner wasted time with fruitless
conciliation; that the Commissioner did not afford him an interpreter; that the
commissioner did not take the Respon dent to task for calling only one witness when
they promised to bring two and thereby showing that he was willing to accept false
testimony from the Respondent.
[28] Commissioner Cebekhulu considered the application and found that no sound
basis had been laid to show apprehension of bias, but that he would nonetheless
recuse himself.
[29] The arbitration therefore started afresh before the Second Respondent
(Commissioner). The arbitration commenced and was concluded in respect of
evidence on 6 December 2022. The Respondent presented oral closing arguments
but the Applicant insisted in presenting written closing arguments, despite the
proceedings having stood down for 30 minutes to enable him to gather his thoughts
for purposes of closing arguments. Rather than presenting closing arguments, the
for purposes of closing arguments. Rather than presenting closing arguments, the
Applicant lodged yet another recusal application.
1 No. 66 of 1995, as amended.
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[30] In doing so, the Applicant alleged amongst others that the Commissioner had
“arrogantly” kept the Respondent’s witness in the room whilst the Applicant testified,
the witness being the Respondent’s HR representative Ms Mak hene who was also
the person providing instructions to the Respondent’s representative. In the
Applicant’s view, such ruling was “ messing with the whole process and curbing the
applicant from probing the respondent’s witness ” and thereby suggesting that the
Commissioner “ had a mission to complete on behalf of the respondent ”. The
Applicant also stated, amongst others, that he tried to bring the Commissioner to his
senses, to no avail ; that the Commissioner was aggressive towards him ; that the
Commissioner did not give reasons during the arbitration proceedings for his
decisions which indicated that the Commissioner did not have respect for the
Applicant; that the Commissioner treated him like a commoner ranking below him ;
that he has lost all respect for the Commissioner and could not rely on his
judgement.
[31] The Commissioner issued his award on 19 December 2022 whe rein he dealt
with the rulings he had made during the arbitration proceedings, the recusal
application and the merits of the unfair suspension dispute.
Analysis
[32] The Applicant raised several grounds of review, which are dealt with below.
[33] It needs mentioning from the onset that it is evident from the transcribed
record of the proceedings that the Applicant treated the Commissioner with
disrespect. He was argumentative, would not accept guidance by the Commissioner,
often interrupted the Commissioner, would not accept rulings made by the
Commissioner and continued challenging and arguing about rulings long after the
Commissioner had made them. On occasion, he also turned the Commissioner’s
attempts to assist and guide him into allegations against the Commissioner. It is
clear from the record as a whole that the Applicant wanted to be in control of the
clear from the record as a whole that the Applicant wanted to be in control of the
proceedings instead of allowing the Commissioner to control the proceedings.
Commissioner ignored section 192 of the LRA
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[34] The Applicant contended that the Commissioner was “acting on behalf of the
company” by “deliberately ignoring Section 192” of the LRA. He further alleged that
the Commissioner unfairly claimed that this section does not apply to unf air
suspensions. He contended that the C ommissioner, in the absence of section 192,
had no other law to “ back his arrogance” that the Applicant was to lead his evidence
first.
[35] The Commissioner conducted a pre -arbitration conference between the
parties during which the Commissioner indicated to the A pplicant that he needed to
testify first as the onus to prove the unfair suspension rested with the Applicant.
[36] The Applicant challenged this view of the Commissioner which resulted in the
Commissioner ruling that the Applicant was to testify first due to the Applicant
bearing the onus to prove that an unfair labour practice, more specifically an unfair
suspension, had been committed. Despite the ruling, the A pplicant continued to
challenge the commissioner during the arbitration proceedings.
[37] Section 192 of the LRA provides as follows:
‘192. Onus in dismissal disputes
(1) In any proceedings concerning any dismissal, the employee must
establish the existence of the dismissal.
(2) If the existence of the dismissal is established, the employer must
prove that the dismissal is fair.”
[38] It is common cause that the Applicant’s dispute was an alleged unfair labour
practice dispute, more specifically an alleged unfair suspension dispute.
[39] In the absence of the LRA expressly stating who bears the onus in unfair
labour practice disputes, the Commissioner resorted to the well -known principle in
our law that he who alleges, must prove. He therefore required the Applicant to
prove that his suspension was unfair and as a result, that he had to testify first. The
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Commissioner also justified his decision in his award with reference to this Court’s
decision in Randles v Chemical Specialities Ltd.2
[40] In addition to the abovementioned well -known principle, this Court through
Moshoana J in Moloko v Commission for Conciliation, Mediation and Arbitration and
Others3 analysed the provisions of the LRA, distinguishing between Section 192 and
matters relating to unfair dismissals on the one hand and those relating to unfair
labour practices on the other hand, and confirmed that an employee who alleges that
an unfair labour practice has been committed, bears the onus to prove same.
[41] This ground of review therefore holds no water.
Respondent’s witness in the room
[42] Also during the pre- arbitration conference , the Applicant asked whether the
Respondent’s HR Manager, Ms Makhene, could wait outside until it was her turn to
testify. The Commissioner ruled that Ms Makhene could stay in the hearing room
from the onset.
[43] Once again, the Applicant continued to challenge the Commissioner on his
ruling. During such, he also made remarks such as that the Commissioner seems
upset and impatient rather than explaining himself to the Applicant . The Applicant
contends in his papers that he was trying “ to bring the [Commissioner] back to his
senses” with these comments. At one stage, the Commissioner did inform the
Applicant that his decision with regards to the ruling on Ms Makhene’s presence can
be taken on review should the Applicant disagree with the ruling.
[44] The Applicant contends that the Commissioner was aggressive towards the
applicant by “dictating without reasons” that the witness should stay inside the room
and that the Commissioner responded aggressively by stating that the process will
proceed in the manner he dictates, rather than providing reasons for his decision in
the hearing.
2 [2011] 8 BLLR 783 (LC).
3 (JR 1534/20) [2022] ZALCJHB 76 (9 March 2022).
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[45] He further alleges that the Commissioner “arrogantly” kept Ms Makhene in the
room, that the Commissioner exceeded his powers in doing so and that the
Commissioner had a “mission to complete” on behalf of the Respondent in doing so.
[46] As correctly confirmed by the Commissioner in his award, section 138 of the
LRA provides that he may conduct the proceedings in a manner that he considers
appropriate.
[47] The Commissioner reasoned in his award that the Respondent’s HR Manager
was entitled to stay in the room and hear what case the Respondent had to meet,
just like an employee would have the right to stay in a hearing room and listen to an
employer’s evidence being led first in a dismissal dispute, so that the employee
knows what case he/she has to meet.
[48] Any party to a dispute has a right to hear what case he/she/it has to meet
and/or counter. That party is therefore entitled to be present throughout the
proceedings. In the case of an employer which is a legal entity, the person that sits in
on behalf of the employer is normally the person that is best placed to provide
instructions to the employer’s representative, which often includes persons such as
the HR Manager.
[49] The Commissioner’s ruling that Ms Makhene can remain in the hearing room
throughout the whole arbitration is therefore a reasonable decision and certainly falls
within the range of reasonableness.
Recusal of the Commissioner
[50] During cross -examination of the Applicant, the Commi ssioner faced
challenges in getting the Applicant to understand the proceedings and continuously
provided guidance to the Applicant when necessary. The Applicant however wanted
none of it. He sought to control the proceedings, irrespective whether he was in the
wrong.
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[51] At some stage during the Applicant’s cross -examination, the following
conversation came to the fore after the Commissioner asked the Respondent’s
representative to give the Applicant an opportunity to answer the question and the
Commissioner rephrased the question to ensure that the Applicant understood what
was being asked:
“[Applicant]: Why are you taking part here, if I may ask?
[Commissioner]: Please can you…My part is to make sure that every
evidence is heard, including those that you have not been given a chance to
answer.
[Applicant]: But to save us time, you can recuse yourself because now it
seems like since we started like you have been taking part here.
[Commissioner]: That is fine.
[Applicant]: And you have been now putting in emotions and so forth and
now I have been trying to p ut up with all of this. So now, if you see that now
you are not patient enough hand you see you cannot save yourself from
taking part, why do you not recuse yourself and have another commissioner
deal with the matter because now it seems like the time will now be on and
on. It will now be too long dealing with the same matter.
[Commissioner]: No, it is fine sir. Do you want to make [an application?
1:27:10] to recusal?
[Applicant]: No, I did not say.
[Commissioner]: If you are not, I am not recusing myself. No, I am not. I
am not recusing myself.
[Applicant]: I did not say I want to make an application.
[Commissioner]: What you say? You say I must recuse myself.
[Applicant]: But the matter, the matter…No but-
[Commissioner]: No, I am not. I am not recusing myself sir. Whoa. I am not
recusing myself. Let us move on. If you are not making an application for
recusal, please bear in mind that I am not recusing myself.
[Applicant]: The matter is very heavy for you, I can see.
[Commissioner]: Okay, it is fine. That is your view. Next question please.
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[52] From the above, it is clear that the Commissioner was not going to recuse
himself in the absence of an application for recusal, at which point the Applicant
confirmed that he was not making an application for recusal.
[53] The application for recusal was only made after conclusion of the evidence.
[54] It is clear that the Applicant’s application was founded in his view that the
Commissioner was wrong in the rulings he had made. The Commissioner having
ruled that the Applicant bore the onus to prove that his suspension was unfair and
therefore had to testify first, as well as the ruling that Ms Makhene may remain
present during the proceedings, was not acceptable to the Applicant and had set the
stage for the remainder of the arbitration proceedings wherein the Applicant viewed
these rulings as arrogance by the Commissioner and the Commissioner having a
mission to complete on behalf of the Respondent , creating a feeling by the Applicant
that he had the duty to bring the Commissioner to his senses.
[55] The Commissioner in his award dealt extensively with the application for
recusal and he did so with reference to case law relating to the subject -matter. It is
unfortunate that the Commissioner at one stage advised the Applicant to “ shut up
and listen”, but that in itself, does not make the Commissioner biased.
[56] From a reading of the transcripts, it is clear that the Applicant had difficulty in
accepting guidance from the Commissioner and the Applicant’s approach throughout
the whole process was guided by his mistrust of the Commissioner due to the
Commissioner having ruled at the onset that he had to testify first and that Ms
Makhene could remain present.
[57] It is important to note that two similar rulings made by the first commissioner
appointed to arbitrate the matter, also resulted in a recusal application being made
against that commissioner.
[58] It is therefore clear that the Applicant was not going to accept any
[58] It is therefore clear that the Applicant was not going to accept any
commissioner that made any findings against him and that all commissioners that
ruled against him ran the very real risk of facing recusal applications.
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[59] It is trite that findings against a party cannot constitute reasons for recusal.
[60] This ground of review is also not upheld.
Evidence
[61] The Applicant contended that the Commissioner overlooked all the evidence
submitted by him and that, considering all the evidence, a “reasonable
decisionmaker in the position of the [Commissioner] would not have committed such
a series of egregious irregularities in conducting the arbitration proceedings and that
it therefore stands to be reviewed and set aside”.
[62] It is common cause that the Applicant’s suspension was a precautionary
suspension, pending the outcome of the disciplinary inquiry.
[63] The Court in South African Municipal Workers' Union obo Dlamini and others
v Mogale City Local Municipality and Another
4 had the following to say with regards
to suspension:
'I will firstly deal with the issue of suspension. I simply cannot agree with Mr
Buirski that in order for an employer to suspend an employee, the employer
must have determined or accepted that misconduct exists. In a nutshell, the
existence of misconduct is not a sine qua non for an employee to be
legitimately suspended.’
[64] The criteria to be considered in determining whether a precautionary
suspension was unfair, has been set out in South African Breweries (Pty) Ltd v Long
and Others
5 as follows:
‘[47] As opposed to this, suspension as a holding operation, or otherwise
called a precautionary measure, is not a disciplinary measure. It cannot be
4 [2014] 12 BLLR 1236 (LC) at paras 31 and 32.
5 (PR 121/16; PR 122/16) [2017] ZALCPE 36 (8 June 2017). This decision was upheld by the
Constitutional Court in Long v South African Breweries (Pty) Ltd and Others (2019) 40 ILJ 965 (CC)
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seen as disciplinary action, therefore all the requirements relating to fair
disciplinary action under the LRA cannot find application.
…
[52] It is in my view clear that in the case of a holding operation
(precautionary) suspension, there is no requirement, as a general principle of
fairness, that an employee must be heard or otherwise be given an
opportunity to make representations before it is decided to place the
employee on such kind of suspension. Whether such a suspension is fair or
unfair is dependent upon three other criteria, which I will next set out.
[53] The first criteria relates to the reason for this kind of suspension, and
flows from the very nature of this kind of suspension itself, being that of
'precaution'. 'Precaution' contemplates safeguarding a process or action that
is pending. It means that for precautionary suspension to be fair, it must be
directly linked to a pending investigation or process, whether relating to
misconduct, incapacity, or for operational requirements. And then, the
suspension must serve to protect the integrity of the investigation or process,
or mitigate risks to the employer whilst such an investigation or process is
ongoing. It does not serve to dispense punishment upon the employee, but is
done in the interest of good administration. The absence of these
considerations would mean there is no basis or reason for precautionary
suspension, and it would be unfair.
[54] It is not necessary for the employer, at this stage, to substantiate the
misconduct or complaints against the employee. All that is required is a
reasonable belief on the part of the employer that it exists, even if such belief
may be subjective…
[55] When it is true that there is a fair reason for precautionary suspension,
the second criteria comes into play. This relates to the issue of prejudice to
the employee and is linked to the requirement that the precautionary
suspension must be on full pay. Where the suspension is on full pay,
suspension must be on full pay. Where the suspension is on full pay,
prejudice to the employee is curtailed and it will not readily be seen to be
unfair. Suspension without pay is of course possible, for example where it is
provided for in a contract of employment, collective agreement or agreed
disciplinary code and procedure, but then in that case the issue of prejudice
would normally be mitigated by a limited period of suspension or other
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conditions imposed in these regulatory measures, so as to mitigate prejudice.
But as a matter of principle, and to satisfy the second fairness criteria in the
case of precautionary suspensions, it should be on full pay.
…
[58] Finally, and if there is a fair reason for the precautionary suspension,
and this suspension is on full pay, the third fairness criteria contemplates that
the duration of this suspension should not be unduly long…’
(Own emphasis)
[65] The Applicant was notified in his letter of suspension that a disciplinary inquiry
would take place 10 days later and the two misconduct charges that would be
“investigated” at the inquiry was set out in both the notice of suspension, as well as
the accompanying notice to attend the disciplinary inquiry.
[66] The evidence also showed that the suspension was necessary to prevent
further incidents of incorrectly operating the dial ler. In this regard, the evidence
showed that the dial ler was used by sales consultants such as the Applicant to call
prospective clients based on hot leads received. At the end of the call with the client,
the Applicant had to log the outcome of the call by means of the dial ler, indicating
whether the client is not interested or whether the client for example requested to be
called back at a more convenient time. Due to incorrect operation of the dial ler, the
Respondent and its client were losing business to the extent where the client raised
it as a concern with the Respondent.
[67] The Applicant however felt that he was not guilty of the charges and that he
was being singled out and victimised by his supervisor. However, i n the Applicant’s
affidavit he referred to the events on the morning prior to his suspension and stated:
‘Charles called us into A schwyn's office for a meeting in which As chwyn was
the only person talking, bragging that some of the team members were going
to be suspended that day and he wished they could be suspended without
to be suspended that day and he wished they could be suspended without
pay, but he still had to find out with T he Labour Net if that would be possible .’
(own emphasis added)
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[68] The evidence by the Respondent also confirmed that a few people were
indeed suspended that day, with pay, and after conclusion of the disciplinary
inquiries, some employees were dismissed whi lst other s were issued with final
written warnings and had their suspensions lifted.
[69] The Applicant made much of the issue with regards to the investigation and
whether same took place prior to or after his suspension. The Respondent clearly
demonstrated that a complaint was received by the client which caused them to
investigate. The result of such investigation was that the Applicant and other
employees were suspended, pending the outcomes of the inquiries.
[70] The notice of sus pension stated that the suspension was pending an
“investigation”. The notice to attend the inquiry made it clear that the inquiry was
being held to “investigate” the charges against the Applicant.
[71] There was therefore a fair reason for the suspension, which brings us to the
prejudice to the Applicant. It is common cause that the Applicant was suspended
with pay. The Applicant also did not illustrate any prejudice that he has suffered
otherwise. Although he felt that his previous grievance had not been dealt with and
needed to be deal with prior to his suspension, the evidence showed that his
grievance and complaint had indeed been addressed and that he did not indicate
any dissatisfaction with the out comes for a few weeks thereafter and only raised it
when he was suspended.
[72] That leaves the length of the suspension. The Applicant received the notice to
attend the inquiry simultaneously with the letter of suspension, which notice
confirmed that the inquiry would take place 10 calendar days later. The inquiry
proceeded on the scheduled date with the Applicant electing not to participate in the
enquiry and the outcome of dismissal was rendered two days later. The length of the
suspension was not inordinate and cannot form the basis of an unfair suspension.
suspension was not inordinate and cannot form the basis of an unfair suspension.
[73] The Commissioner’s award is reasonable in relation to the evidence that
served before him and the reasons given.
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Costs
[74] Although the Applicant’s application borders on being frivolous , I do not
believe that the Applicant should be burdened with a costs order.
[75] In the premises, the following order is made:
Order
1. The application is dismissed.
2. There is no order as to costs.
L. Erasmus
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: In person
For the First Respondent: T Moyo of Snyman Attorneys