Sneller Verbatim/DM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J578/00
DATE: 2002.02.06
In the matter between
ELIAS MAKHAFOLA Applicant
and
COMMISSIONER - A.R. MUDAU 1st Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 2nd Respondent
STARCK DOORS CORPORATION 3rd Respondent
_______________________________________________________________
_
J U D G M E N T
Delivered on 6 February 2002
_______________________________________________________________
_
REVELAS J:
1. This is an unopposed application for the review of an
award made by the first respondent in favour of the
third respondent in which it was found that the
dismissal of the applicant was fair, both procedurally
and substantively. There has been no opposition on
behalf of the first respondent who filed a statement to
say that he would abide by the decision of the court in
this matter.
1. 1. 2. One of the grounds of attack against the second
respondent, the arbitrator, is that he was biased in
that he interfered in the proceedings and asked
questions on behalf of the third respondent, who was
the employer party at the proceedings. There is no
typed transcript recording the proceedings. It is
therefore not possible for me to make a finding in this
regard. However, I have considered the award and the
award stands to be set aside if I am able to make a
finding that the conclusion arrived at by the
arbitrator was not rationally or reasonably connected
to the facts before the arbitrator.
3. The arbitrator referred to the misconduct in question
which was the failure to carry out an instruction given
by the third respondent to the applicant and which the
applicant had failed to carry out. The applicant had
worked for the third respondent for a period of 12
years. The arbitrator does not mention what the
offence was, what the instruction was and he does not
deal with the reasons why it was not carried out,
whereas there is some reference to the fact that the
applicant was assisting a coemployee at the time the
instruction was directed to him.
4. In circumstances where one finds that the dismissal was
fair, there should be at least some reference or
reasoning as to why the instruction was reasonable. In
respect of the reasoning as to why the applicant should
be dismissed for this offence, the arbitrator states
the following
1. 1. "In a contract of employment, my understanding as
laid down by labour legislation, is that the employer has the
responsibility to provide work, while the employee has the duty
to render his services in a subordinate manner. The
interpretation of this statement would mean that the employee
does not have a choice as to what work to do, but should be
instructed. Where there are problems the company grievances
procedure should be triggered and used to resolve the
complaints and problems which the employee may have."
5. This is entirely incorrect. It is trite that the
instruction given to an employee must be a reasonable
one and there is no precedent or provision in Labour
Law which I know of which provides that an employee has
to render his or her services in a "subordinate
manner." If the employee or the applicant in this
matter was insubordinate or refused to carry out a
reasonable instruction, that much must have at least
been dealt with by the arbitrator. There is not even a
reference as to what the nature of the refusal was
neither to the facts, and it is also very difficult to
find this in the record provided by the arbitrator.
6. In the circumstances this is a matter where,
particularly in the absence of any opposition to the
allegations made by the applicant in his founding
affidavit, the award should be set aside.
7. This is not a matter where I can substitute the
arbitrator's finding with my own findings. I have
already made reference to the lack of reasoning. In
the circumstances the dispute is referred back to the
Commission for Conciliation and Mediation to be heard
by another arbitrator.
_______________
E. Revelas