(10)
(20)
(30)
(10)
(20)
(30)
K2.1000
J1103/98 1 JUDGMENT
Sneller Verbatim/MM CASE NO. J1103/98
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
20001124
In the matter between:
STEEL MINING & COMMERCIAL WORKERS UNION
obo JUDAS KGOEDI Applicant
and
PARTY DESIGN CC (DOLL'S DIARY) Respondent
J U D G M E N T
Delivered on 24 November 2000
REVELAS J :
1.This is an application in terms of section 145 of the Labour Relations Act
66 of 1995, the Act, to review and set aside an award made by an
arbitrator in favour of the respondent, in terms of which the arbitrator
found that the dismissal of Mr J Kgoedi ("the employee") was fair.
2.The arbitration was conducted under the auspices of the Commission for
Conciliation Mediation and Arbitration ("the CCMA"), after conciliation
proved to be unsuccessful. Mr Kgoedi was dismissed because he allegedly
intimidated a former temporary employee who worked for the respondent
1
(10)
(20)
(30)
(10)
(20)
(30)
during a previous strike situation. The employee was looking for more
work at the
JUDGMENT
time.
1. According to the evidence of Mr Sibiya, (the former
employee) who also testified before the arbitration hearing, the
employee had threatened to kill him. The arbitrator found that this
version was more probable than Mr Kgoedi's evidence because Mr Sibiy's
evidence was sup ported by the evidence of Mr Mtshali.
2. The arbitrator also gave considera tion to the fact that Mr
Sibiya was not an employee of the respondent
at the time of the incident.
3.The union has brought the application for review on be half of Mr Kgoedi on
the following grounds as set out in the applicants' founding affidavit
from which I quote as follows:
"3. It is respectfully submitted that the award is defec tive in that the
commissioner committed mis conduct in relation to the duties of the
commissioner as an arbitrator, for the following reasons:
3.1 That the commissioner was biassed in that he made findings of facts and
conclusions of law
apparently based on the evidence of the respondent who was the
initiator, the prosecutor and the judge at the same time and rejected
everything from me as an applicant.
3.2 I was dismissed for having warned of the people who were working during
our strike. That person I (sic) was dismissed for was not even an
employee of the company."
4.None of the grounds put forward are supported by facts or are grounds for
review in themselves. There is no indication that the arbitrator did
not apply his mind.
2
(10)
(20)
(30)
(10)
(20)
(30)
JUDGMENT
He made a credi bility finding in favour of the respondent's witnesses
and then gave due consideration to the fact that the incident occurred
outside the respon
dent's premises. He concluded as follows:
"The ultimate issue then to be determined is whether an employee who
threatens to kill a person seeking employ ment outside the company
premises may be dismissed. It is generally accepted that an employer's
control over an employee does not extend beyond the parameters of the
company premises. "
5.The arbitrator then relied on an extract from P A K Le Roux and Andre Van
Niekerk The South African Law of Unfair Dismissal 1994 (184) where the
learned authors state that as a general rule, an employer has no right
to institute disci plinary proceedings against an employee unless it can
be demonstrated that the employer has some interest in the conduct of
the employee. An interest would normally exist where some nexus exists
between the employee's conduct and the employer's busi ness. In the
absence of the nexus the conduct complained of is sometimes termed
"offthejob conduct".
The arbitrator found correctly that it is clear that
there was a nexus between the conduct of Mr Kgoedi and the business of
the employer (the respondent). The confronta tion took place in close
proximity of the respondent's premises and in full view of the public,
affecting the company's reputation. The threat made to Mr Sibiya was
work related.
7.No employer needs to tolerate that former and prospective employees are
threatened with death, when indica ting that they are interested in
working for the respondent, even during a strike situation.
3
(10)
(20)
(30)
(10)
(20)
(30)
JUDGMENT
A decision is reviewable where conclusions reached are not capable of
reasonable justification when regard is
had to the factual premises on which they are based.
(See: Shoprite Checkers (Pty) Ltd v CCMA & Others (1998) Vol 19 ILJ
892 (LC) at 900 DG.
9.Once a reviewing court is satisfied that the tribunal has applied its mind
it will not interfere with the result even if it would have come to a
different conclusion. " The best demonstration of applying one's mind is
whether the outcome can be sustained by the facts found and the law
applied. The emphasis is on the range of reasonable outcome and not the
correct one. " See Coetzee v Libea NO & Another (1999) 20 ILJ 129 (LC)
at l33 EG per Cheadle AJ.
10.No grounds were advanced which permits me to find that the outcome arrived
at by the arbitrator is not sustainable by the facts of the matter and
the law which was applied.
11.In the circumstances the application for review must fail.
12.I now turn to the question of costs. The applicant has pursued a matter
which had no merit. Vexatious allegations about the commissioner being
biased were made without putting for ward any facts, as to why this
should be so. Litigants should be discouraged from engaging in
litigation in this manner.
13.Consequently the application is dismissed with costs.
___________________________
E. REVELAS
4
(10)
(20)
(30)
5