JR74/01-JduP
JUDGMENT 1
Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR74/01
2001.10.18
In the matter between
L D J MOODLEY Applicant
and
THE BARGAINING COUNCIL FOR THE
RESTAURANT CATERING ALLIED TRADES First Respondent
E S HUTCHINSON Second Respondent
BAR SUPPORT SERVICES Third Respondent
________________________________________________________________
J U D G M E N T
EX TEMPORE
________________________________________________________________
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 in favour of the
third respondent by the second respondent, a commissioner appointed by the
first respondent.
2. The applicant was dismissed by the third respondent on 7 January 2000
following a disciplinary inquiry into certain misco nduct of the applicant
relating to alleged drunken behaviour, albeit off d uty. The applicant was
employed by the third respondent as a manager.
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3. The only grounds for review relied upon by the applicant in his papers read as
follows:
"
I am not satisfied with the outcome of the arbitration award. The company and
the Bargaining Council was [ sic ] not acting fully in their rights of the Labour
Relations Act concerning a dispute. No fair procedu res was [ sic ] followed
during my hearings. I should also have considered my case to be arbitrated by
the same commissioner as the Bargaining Council. A private (part-time)
arbitrator was appointed. It clearly indicates [ sic ] that the commissioner did not
consider any matters I raised. The Bargaining Council dismissed my case and
award me nothing. Allegations against me were made up and I was dismissed
unfairly. It seems that there was some corruptions [ sic ] and the code of conduct
was not applied. "
4. The applicant provided no further detail in support of his grounds of review.
The sparseness of appropriate allegations in his affidavit was pointed out to
the applicant by the third respondent's legal representatives in two affidavits
filed by the third respondent at various stages. The applicant failed to respond
to these indications of a lack of particularity on his part.
5. The applicant also did not put forward a record of the arbitration proceedings.
6. The third respondent's view on affording the applicant a further opportunity to
rectify his papers, was to the effect that the appl icant had several
opportunities to rectify or supplement his papers, and furthermore that the
applicant could not amend his case on the record, a fter the respondent had
already opposed the matter in response to the alleg ations made by the
applicant in his applications before me.
7. In this regard I was referred to the matter of Skjelbreds Rederi and Others v
Hartleys 1982 (2) SA 739 (W), at 742C per Vermooten J.
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JUDGMENT 3
8. The arbitrator summarised the evidence led at the arbitration as follows:
The applicant was the sole representative and witne ss for his case. He
called no further witnesses in support of his case . A Miss Dorasamy
presented evidence on the appropriateness of the sa nction applied, being
dismissal. A Mr Ncgobo testified as to the alleged acts of misconduct, such as
acting in a loud manner unbefitting of a manager, m aking a nuisance,
interrupting the service flow, swearing and being under the influence of liquor.
Mr Ncgobo's evidence was supported by the evidence of Mr Joubert, who
confirmed that the applicant was under the influenc e of alcohol, aggressive,
used bad language, and that the employment relationship between the parties
had broken down.
9. The arbitrator in effect made a credibility finding by accepting that cross-
examination by the applicant did not materially challenge the evidence led by
Mr Ncgobo and Mr Joubert. He also found that the two persons concerned
were credible witnesses. The applicant's behaviour, as explained on the day in
question, was held to be unbecoming and reprehensible in the extreme. The
minutes of the disciplinary inquiry were accepted and indicated, in the view
of the arbitrator, and found that the third respond ent had followed fair
procedure in dismissing the applicant from its employ.
10. A proper reading of the award, and the grounds of review, leads me to come
to the conclusion that there is no basis upon which I can interfere with the
findings and conclusion of the arbitrator. On the f ace of it, the conclusion
seems to be a reasonable one, and not disconnected to the evidence placed
before the arbitrator which, even though there is no record before me, some
reference to such evidence is made in the award its elf. Furthermore, the
applicant himself has illustrated the gist of his complaint against the award,
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JUDGMENT 4
and that is that he feels that the sanction of dism issal is too harsh. I have
explained to the applicant that this is a review application and not an appeal.
11. The arbitrator held that dismissal is an appropriate sanction for the offence.
Whether or not I am of the opinion that the dismiss al was too harsh in the
circumstances is of no consequence.
12. In the circumstances the application is dismissed. There is no reason why the
applicant should not pay the costs of this applicat ion. He had launched an
application with no merit, causing the third respondent to incur the expense of
opposing the matter. Despite being referred to the deficiencies in his case, he
still proceeded therewith, without rectifying matte rs. Furthermore, serious
allegations of corruption were levelled against the respondents.
13. In the circumstances the applicant is to pay the third respondent's costs.
O R D E R
The application is dismissed with costs.
ON BEHALF OF THE APPLICANT: (In person)
ON BEHALF OF THE THIRD RESPONDENT: MR M SCHOTTLER
Of Brink, Cohen, Le Roux and Roodt.
________________
E. Revelas