Iliad Africa Trading (Pty) Ltd t/a Rietpan Hardware and Building Supplies v Toli and Others (JR134/01) [2002] ZALC 111 (4 February 2002)

55 Reportability

Brief Summary

Labour Law — Unfair dismissal — Review of arbitration award — Applicant challenging finding of substantive and procedural unfairness in dismissal of employee — Employee admitted to poor timekeeping and absences — Arbitrator awarding compensation based on procedural unfairness due to denial of appeal — Court finding that dismissal was fair and setting aside the arbitrator's award.

Sneller Verbatim/HVR
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR134/01
2002-02-04
In the matter between
ILIAD AFRICA TRADING (PTY) LTD t/a
RIETPAN HARDWARE AND BUILDING SUPPLIES Applicant
and
TOLI, S N.O. (cited in his capacity as arbitration
commissioner of the Building Industry Bargaining
1st Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 2nd Respondent
3rd Respondent
_______________________________________________________________
_
J U D G M E N T
_______________________________________________________________
_
REVELAS J:
1. This   is   an   application   for   review   in   terms   of   section

145(1)(a),   145(1)(b)   and   145(2)   of   the   Labour   Relations  
Act   66   of   1995   as   amended,   (“the   Act”).   The   first  
respondent,   in   his   capacity   as   an   arbitrator   conducting  
an arbitration regarding a dispute which was referred by  
the   third   respondent   to   the   second   respondent,(“the  
CCMA”), concerning an alleged unfair dismissal.
2. The first respondent found that the third respondent had  
been  substantively and procedurally nfairly dismissed.
3. It was common cause before the first respondent that the  
third   respondent   had   received   several   warnings   from   the  
applicant regarding his poor timekeeping.   It was common  
cause   that   the   respondent   was   often   absent   from   the  
workplace.  A disciplinary inquiry was held and the third  
respondent was found guilty of the offence.
4. As I understand it, the third respondent admitted that he  
committed these offences and the question of sanction was  
the   main   issue   before   the   chairperson   who   conducted   the  
disciplinary inquiry.
5. The arbitrator, for reasons best known to himself, found  
that the dismissal was substantively unfair.  
6. The   procedural   unfairness   found,   was   on   the   basis   that  
the   third   respondent   wished   to   appeal   against   the  
decision   of   the   applicant   that   this   was   unreasonably  
refused.
7. The   first   respondent   found   that   since   the   applicant's

code   provided   for   an   appeal   and   denying   the   third  
respondent   the   opportunity   to   appeal,   amounted   to  
procedural   unfairness.     The   third   respondent   was   then  
compensated by the first respondent with an amount equal  
to 13 months' remuneration.
8. In   Cox   v   Commission   for   Conciliation,   Mediation   and  
Arbitration   and   Others   (2001)   22   (ILJ)   137   the   Labour  
Court held as follows at page 145:
"The further issues raised by the applicant are also without
merit. The fact that the second respondent did not consider
the dismissal to be procedurally unfair because the applicant
was not allowed to appeal despite of the provision in the
collective agreement/disciplinary code for such appeal cannot
be a basis for review, particularly since second respondent
noted the employer claimed for refusing an appeal which was
that having regard to the nature of the charges and the fact
that "the applicant's case may be heard by an independent
person, there was no one in the company who was qualified to
deal with the appeal. Further, however, had the second
respondent found that an appeal had to be granted and failure
to do so constituted an unfair procedure in effecting a
dismissal it would not have made any difference as the second
respondent stated in his award: 'I do not regard the fact that
there was no appeal as constituting an unfair procedure. Even
if that was so this is a matter in which I would not grant the

applicant compensation for a procedural defect of that
nature.'”
9. It   was   also   alleged   that   the   chairperson   of   the  
disciplinary   inquiry,   Mr   Barbis,   had   knowledge   of   the  
events   giving   rise   to   the   disciplinary   enquiry   thereof  
and should not have heard the matter as he was biassed.
10.The   fact   that   Mr   Barbis   had   been   involved   in   prior  
disciplinary proceedings against the third respondent in  
the past, does not  per se  disqualify him from acting as a  
chairperson   in   this   particular   matter.     Obviously   Mr  
Barbis   must   have   had   knowledge   of   these   events   as   he  
after   all   works   for   the   applicant   as   well.     He   did   not  
have   direct   knowledge   of   the   events   and   he   was   not   the  
prosecutor in the matter or the person who initiated the  
enquiry.
11.In   any  firm,   company,  business   or  body   that  acts   as  an  
employer,   there   will   always   be   the   chance   of   the  
disciplinary   chairperson   knowing   about   the   matter.  
Unless   he   was   the   prosecutor   in   the   matter   or   was  
demonstrably,   a   chairperson   is   not   automatically  
precluded from presiding because of being an employee who  
has   knowledge   of   the   matter.       If   that   was   a   basis   to  
disqualify   a   chairperson   then   hardly   any   employer   could  
ever discipline its employees, for this reason alone.

12.In the circumstances I find that this award of the first  
respondent falls to be set aside and substituted with the  
following:
"The dismissal was fair."
___________________
E. Revelas