JLC4-290301(case 4) J676/01.MB
Sneller Verbatim/MB
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J5902/00
2001-04-24
In the matter between
DAVID M BOMELO Applicant
and
THE COMMISSION FOR CONCILIATION
1st Respondent
2nd Respondent
3rd Respondent
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J U D G M E N T
Delivered on 24 April 2001
________________________________________________________________
REVELAS J:
1.The applicant, the erstwhile employee of the third respondent, was
dismissed following charges of alleged drunkenness during working hours.
2.A disciplinary hearing was held on 4 June 1999 and the applicant was
dismissed. He referred a dispute to the Commission for Conciliation,
Mediation and Arbitration, ( Αthe CCMA ≅) where conciliation failed and an
arbitration hearing was consequently conducted before the second
respondent, a commissioner appointed by the CCMA.
3.The arbitrator heard the evidence of the applicant, Mr Bouwer, who is the
managing director of the third respondent, as well as Mr J G Peters a
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manager.
4.Mr Peters testified at the arbitration hearing that he had found the
applicant in a drunken state when he inquired from him about a certain
aspect of the applicant =s pay slip.
5.The applicant denied that he was drunk.
6.It is necessary to in full quote from the arbitrator =s award, what the
arbitrator found under the heading ΑAnalysis of Evidence and Argument ≅:
"The applicant was aware that being under the influence of liquor whilst on duty
was a punishable offence. He had signed a contract of employment in which his
offence was expressly highlighted. Furthermore he had been previously
disciplined for being under the influence of alcohol and had received a final written
warning. Both Bouwer and Peters testified under oath that the applicant was
intoxicated on the day in question. Both witnesses claimed that his eyes were
bloodshot, that he was unsteady on his feet and he smelt of liquor. Peters took
the applicant to a private clinic to have his blood sample drawn and he refused to
submit to this on the grounds that the attending sister was white. In stead he
walked out of the doctor's rooms on the pretext of phoning his attorney. Bouwer
testified that his company could have lost the contract of the Germiston City
Council if the applicant had been found to be working on their project whilst under
the influence of alcohol. In the light of the above I am satisfied that the applicant
was under the influence of alcohol on the day in question and I find that the
respondent in a substantively fair manner in terminating his services.
Furthermore the sanction of dismissal was appropriate in the circumstances given
the fact that the applicant had received a final written warning for a similar
offence."
7.The applicant now seeks to review the award of the arbitrator.
8.The applicant has put forward no grounds which would persuade me to
8.The applicant has put forward no grounds which would persuade me to
interfere with the arbitrator's award. The arbitrator took into
JLC4-290301(case 4) J676/01.MB
account, and this is reflected by the award, all the relevant evidence
and circumstances in coming to his finding.
9.The applicant has approached this matter on a basis of a hearing de novo. A
review application does not permit this. He also attacked the award as
if it was some form of an appeal, which he is not permitted to do
either.
10.The applicant has also informed me, thought not under oath, that the
arbitrator refused to permit him to call witnesses. There is no record
to reflect what exactly happened during the proceedings, but on a proper
reading of the award it would appear that this is unlikely.
11.The other grounds as contained in the applicant's founding affidavit to
the application, are unconvincing and in the circumstances the
application fails.
12.The application is dismissed.
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E. Revelas
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