VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 19 June 2000 CASE NO. J3256/99
In the matter between:
URBAN SECURITY CC Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION AND OTHERS Respondents
J U D G M E N T
LANDMAN, J :
[1] Urban Security CC dismissed Mr Johannes Semenya some time ago. He was
reinstated and an agreement was reached at the CCMA with the Transport
and General Workers Union that "in an event that the employer encounter
problems with regard to shop stewards' behaviour, the employer will
inform the union in writing and thereafter both parties would have a
meeting to discuss the situation". Mr Semenya was a shop steward at the
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time.
[2] Some time later Urban Security again had cause to
institute disciplinary proceedings against Mr Semenya. Mr Semenya was
still a shop steward. The complaint was triggered by a client at whose
premises Mr Semenya was stationed as a security guard. It also came to
the attention of Urban Security that Mr Semenya had been convicted by a
Magistrate's Court of assault with intent to do grievous bodily harm. At
least that is what it was believed at the particular time. However, as
will be shown later it would appear that he had merely been charged with
assault.
[3] On 5 December 1998 Urban Security informed Mr Semenya that a
disciplinary enquiry would be held on 14 December. Notice of this
enquiry was given to the union. On the same day Mr Semenya was
suspended pending the outcome of this enquiry.
[4] When the enquiry convened Mr Semenya was charged with: being absent
without permission on 3 December 1998; insubordination; failure to obey
rules and regulations and unsatisfactory work performance. The enquiry
was postponed from time to time and various attempts were made to inform
the union of the matter.
[5] The enquiry resumed on 14 December. It is Urban Security's case that Mr
Vorster chaired the enquiry but did not finalise the proceedings. He
became ill and Mrs Nursey was appointed to chair the enquiry. The
hearing was commenced afresh.
[6] On 26 January 1999 Mr Semenya was found guilty of all the charges and
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dismissed. The union referred the dispute to the CCMA. The first
respondent, a commissioner of the CCMA, arbitrated the dispute and found
the dismissal to be substantively and procedurally unfair and reinstated
Mr Semenya with five months back pay.
[7] Urban Security seeks to review the award. It alleges that the
commissioner committed 12 gross irregularities. These are set out in
its papers. A record was filed but Mr Coetzee who appeared on behalf of
the Urban Securities did not refer me to its contents. I have had great
difficulty in determining whether the version set out in the founding
affidavit is the version which was presented at the arbitration. I also
presume that some of the annexures to the founding affidavit correspond
to the pages of a witness bundle which served at the arbitration and
which was referred to in the record. No steps were taken to identify
the documents referred to in the record in relation to the documents
which served before me.
[8] The commissioner considered case law in regard to double jeopardy and
concluded that it would be unfair to subject an employee to a
disciplinary enquiry a second time. The commissioner proceeded to
investigate whether the first enquiry had been completed. He found that
it had been completed and that Mr Vorster had decided that should Mr
Semenya be found guilty by the criminal court he would be dismissed.
The criminal court in fact found him not guilty and discharged him. It
therefore followed, reasoned the commissioner, that
he should not have been dismissed by his employer. The commissioner went
on tho find that it was therefore improper and unfair to hold a second
enquiry.
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[9] The notes of the proceedings before Mr Vorster were recorded by Mr
Ledwaba. Mr Ledwaba notes that charge 2 was withdrawn and that, in his
summing up, Mr Vorster decided "to ignore" charges 2 and 4. He gave Mr
Semenya a warning on charge 3. Curiously Mr Vorster is recorded as
saying "on charges 1, 2 and 4 Johannes' services should be suspended
until the court case is finalised". Mr Vorster added "and should
Johannes be found guilty by the court he will be dismissed from Urban
Security". By implication if he is found not guilty, he will not be
dismissed by Urban Security.
[10] The commissioner's finding that Mr Semenya faced double jeopardy which
is unfair and that he was entitled to be found not guilty in terms of Mr
Vorster's ruling is rational and justifiable. The commissioner
apparently thought that an agreement to conduct the enquiry de novo was
not effective and I find no reason to interfere with such a view,
particularly as the union was not invited to attend the socalled second
enquiry.
[11] In the premises the application to review and set aside the
commissioner's award must fail and accordingly the application is
dismissed.
DATED AT JOHANNESBURG ON THIS 21 st DAY OF JUNE 2000
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
Date of hearing: 13 June 2000
Date of judgment: 19 June 2000
For the applicant: Mr. J. J. Coetsee of Stemmet & Coetsee Inc
For the respondent: Winston Mukansi union representative
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