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