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K2.1011
J1939/99 JUDGMENT
Sneller Verbatim/HDJ CASE NO. J1939/99
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
20000901
In the matter between:
Applicants
and
CCMA AND OTHERS Respondent
J U D G M E N T
PILLAY AJ :
1.This is a review of an arbitration reward issued by the second respondent.
The background to the dispute was that Mr Minnaar, an employee of the
third respondent, had come on duty on the evening in question. He had
been informed by the foreman who had been on duty before him, that he
(the foreman) had left a welding machine next to a preheater. When Mr
Minnaar went to inspect the welding machine he found that it was not at
the preheater. He continued his inspection of the plant and found the
welding machine at or near the spinner.
2.He subsequently observed the second applicant driving a fork lift which had
been loaded with the welding machine. About fifty metres away a bakkie
was parked outside the perimeter fence or wall. These facts, which were
not in dispute, led to the second applicant being charged with the
unauthorised possession of company property. He was dismissed. The
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second respondent, the commissioner confirmed the dismissal at the
arbitration.
3.The ground on which it was submitted that the award was reviewable was that
the second respondent had committed a gross irregularity by (a) entering
the arena and aggressively crossexamining the second applicant; and (b)
by failing to take material evidence into account and by making findings
in regard to evidence which was not led.
4.The court was referred to parts of the record of the arbitration. It was
submitted that the second respondent descended into the arena by
interrogating the second applicant about where the welding machine was
and why it was there.
5.Mr Minnaar had marked as "A" the position of the preheater where he was
told he would find the welding machine. It was put to Mr Minnaar under
crossexamination that the second applicant had moved the welding
machine from the preheater, that is, from point A to point B, for safety
reasons. Mr Minnaar disputed this by saying that point B was more
dangerous. This evidence had not been challenged.
6.By posing the questions that she did, the second respondent was clarifying
as she was duly bound to do, where on the plan that was apparently being
used at the arbitration, did the second applicant find the welding
machine. As it transpired, he confirmed that it was at point B and that
he had moved it to point C.
7.The second applicant’s reason for moving the machine, was that the welding
machine was near the conveyor where waste, that is fine coal, was being
removed and the welding machine could have been damaged.
8.When the second respondent expressed doubts about the second applicant's
version, the applicants' representatives explained that the issue was
not whether the welding machine would have been damaged or not if it had
not been moved, but whether the second applicant "perceived" that it
would have been damaged. The second applicant had also testified that
he did not take the welding machine to the workshop as he should have
done because it would have taken him too long to go there and get back
to work at the furnace. These explanations appeared to be artificial
and improbable. The second respondent was entitled to probe the second
applicant.
9.It would have been remiss of the second respondent not to have asked the
questions that she did. She had a duty to express her reservations
about the credibility of the second applicant and his version and to
give the parties an oppor tunity to clarify the issues for her. If in so
doing the applicants perceived her to be biased, then such perception
cannot be reasonable in the circumstances. The second respondent was
merely trying to do her duty by ensuring that she understood the
evidence.
10.It is required of commissioners to conduct arbitrations under the auspices
of the CCMA "in a manner that the commis sioner considers appropriate in
order to determine the dispute fairly and quickly with the minimum of
legal formalities". Section 138(1) anticipates that a degree of
robustness will be tolerated. Consequently, whether a commissioner has
regard to submissions from the bar as opposed to evidence, will depend
on the materiality of the submissions to the case as a whole and whether
they are disputed.
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11.In this case it was submitted for the applicants that the second
respondent's conclusion that the "disciplinary and appeal hearings were
held according to company procedure and he was dismissed for alleged
possession of company property", was not based on any evidence led by
the parties, but upon a statement from the bar. In the absence of any
evidence or submission to the contrary the second respondent was
entitled to come to this conclusion. The second respondent did not
consider the submission to be sufficiently serious in the circumstances
of this case to warrant it being treated more formally. The acceptance
of submissions from the bar in these circumstances does not vitiate the
award.
12.The second respondent's rejection of the second applicant's evidence was
not based only on a statement from the bar, but on the evidence of Mr
Minnaar. The second applicant had not advanced a defence that was
reasonably probably true. Nothing from the record of the arbitration
proceedings suggest that the second respondent disregarded any evidence
that supported the second applicant's case.
13.The fact that coemployee Khuta was not charged is irrelevant to deciding
whether the second applicant had committed the offence. On the
contrary, the second respondent would have been entitled to draw an
inference adverse to the second applicant because of his failure to call
Khuta as a witness if he was available.
14.The second respondent's conduct of the proceedings was in the
circumstances consistent with the provisions of section 138(1) and (2)
of the Act. The reasons for her findings and her conclusions of facts
justify the outcome.
15.The application is dismissed with costs.
Pillay J
APPEARANCES IN CASE J1939/99
For the Applicants : Adv G I Hulley
For the Respondents : Adv M J van As
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