JR254/01-HVDM
Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR254/01
2001-10-18
In the matter between
ROBERT ALAN SAUNDERS Applicant
and
ARNOLD CHATZ EDENVALE & OTHERS Respondent
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J U D G M E N T
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LANDMAN J : This is an application brought by Robert Alan Saunders against
Arnold Chatz Edenvale as the first respondent, the Dispute Resolution Centre of
the Motor Industry Bargaining Counsel, the second respondent, and Commissioner
Russel Moletsani the third respondent.
On 21 December 2001, an arbitration award was made by the commissioner
in respect of a dispute between the applicant and Arnold Chatz Edenvale. The
commissioner upheld the dismissal of the applicant on 21 June 2000.
The applicant was dissatisfied with this award and he seeks to review and
set it aside in this court. He submits that the commissioner, in arriving in his
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JUDGMENT1
findings, exceeded his powers and did not apply his mind to the proceedings. This
is said inter alia in regard to schedule 8 of the Labour Relations Act, being the
code of good practice. Item 9 provides that:
"Any person determining whether a dismissal for poor work performance is unfair
should consider -
(a) whether or not the employee failed to meet and performance standard, and
(b) if an employee did not meet the required performance standard, whether or not
(i) the employee was aware or could reasonably be expected to have been aware of
the required performance standard, and
(ii) the employee was given a fair opportunity to meet the required performance
standard, and
(iii) dismissal was an appropriate sanction for not
meeting the required standard."
The heads of argument set out in detail the items of evidence which the
commissioner is alleged to have ignored or downplayed. It was submitted that this
shows that the commissioner did not apply his mind to the evidence and that this
constitutes a gross irregularity.
I have examined the record, the award and the heads of argument. Some of
the points relied upon are immaterial to the proper decision of the commissioner.
Other points have been considered by the commissioner in the sense that they are
consistent with his finding. This points to their having been considered and
disregarded in arriving at his final conclusion. Other alleged failings simply
amount to an attempt to appeal the award. This, of course, is not permissible.
It is alleged that the commissioner erred in finding that it was suggested to
the applicant that he should consider accepting the position of either a service
advisor or a technician. It was submitted that there is no foundation for this in the
JR254/01-HVDM
record. During October 1999 the employer offered the applicant an alternative
position. One which was more suited to his technical talents and to his apparent
lack of administrative skill. He did not accept this. There is no indication of why it
was not accepted. The commissioner noted this to be the case.
I am disturbed about the portion of the evidence (which appears on page 45
of the record). Mr Coetzer is asked:
"Why was it necessary in the circumstances, Mr Coetzer, to terminate the
applicant's services after this inquiry had concluded? --- Mr Saunders, after the
inquiry was held changed his whole attitude towards the business. He threw stuff
around in the workshop. It was brought to my attention and I just felt that the
relationship of trust had been broken and we decided to terminate his services.
And that was based on the chairperson's recommendation? --- Correct.
Did you consider that recommendation carefully? --- Yes, we did."
I am not able to evaluate this remark. It was not pursued in cross examination.
The bundle of documents including the chairperson's recommendation has not
been placed before me. It may be as stated by Mr Coetzer that the dismissal took
place on the basis of the recommendation. Certainly nothing appears to have
been made of this.
The commissioner’s finding that the sanction of dismissal wa fair is
justifiable, having regard to the applicant's refusal to consider accepting a more
suitable position the previous year; his inability to function as a service manager
and the absence, at the time of his dismissal, of a suitable alternative position.
In the circumstances therefore the application to review and set aside the
award is dismissed.
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JUDGMENT3
__________________
A A Landman
Judge of the Labour Court of South Africa
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