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 misconduct of the
applicant relating to alleged drunken behaviour, albeit off duty. The
applicant was employed by the third respondent as a manager.
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 procedures 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 applicant
had several opportunities to rectify or supplement his papers, and
furthermore that the applicant could not amend his case on the record,
after the respondent had already opposed the matter in response to the
allegations 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.
8.The arbitrator summarised the evidence led at the arbitration as follows:
8.The arbitrator summarised the evidence led at the arbitration as follows:
ΑThe applicant was the sole representative and witness for his case. He called
no further witnesses in support of his case. A Miss Dorasamy presented evidence
on the appropriateness of the sanction 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, making 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 influence 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
crossexamination 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. ΑThe minutes of the disciplinary inquiry
were accepted and indicated, in the view of the arbitrator, and found
that the third respondent 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 face 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
itself. Furthermore, the applicant himself has illustrated the gist of
his complaint against the award, and that is that he feels that the
sanction of dismissal 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
11.The arbitrator held that dismissal is an appropriate sanction for the
offence. Whether or not I am of the opinion that the dismissal 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 application. 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 matters. 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