Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR999/01
2002-03-05
In the matter between
JAMES DLONGOLO Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 1st Respondent
2nd Respondent
PRIMA INDUSTRIAL HOLDINGS 3 rd
Respondent
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J U D G M E N T
Delivered on 5 March 2002
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REVELAS J:
1. This is an application for the review of an arbitration
award dated 28 July 2001 in which the arbitrator had
found that the dismissal of the applicant by the third
respondent was fair. The applicant was charged with
the theft of scrap metal from the respondent's
premises. Apparently he handed the scrap metal bars
over the wall of the premises to a person (who later
testified against him) and he was apprehended in the
act of receiving the scrap metal outside the wall. The
commissioner found that the dismissal was for a fair
reason and that the dismissal was effected in
accordance with a fair procedure.
2. The applicant is now seeking to review that finding on
the grounds that he is not guilty of theft because the
stolen goods were not found on his person.
3. It appears to me that the major level of criticism of
the arbitrator's award is that the applicant's guilt,
according to him, was determined by circumstantial
evidence and not direct evidence. He believes that
since he was not caught red handed no inference can be
drawn that he was not guilty and that he ought to have
been found not guilty.
4. The arbitrator gave a long and well reasoned award. He
found that on this evidence the applicant was guilty of
the offence as put forward by the respondent's
witnesses, whose evidence he accepted.
5. With regard to the sanction of dismissal, the
arbitrator held that he was unable to conclude on the
basis of all the evidential material before him, that
the third respondent's decision to dismiss the
applicant was unreasonable. He referred to the fact
that in principle, an employer is entitled to set
standards and to decide on which sanctions should be
imposed for noncompliance with those standards and
found that dismissal was the only sanction that could
be imposed in the circumstances.
1. 6. In order to interfere with this finding on review,
it had to be demonstrated that the arbitrator came to a
conclusion which was not rationally connected to the
facts. In my view, the applicant put forward no such
grounds to demonstrate the aforesaid. The setting
aside of an award is not simply just for the asking.
There is also a difference between an appeal and a
review.
7. The applicant simply seeks a different outcome. The
outcome which was reached by the arbitrator, I am
unable to criticise in any respect. No irregularities
were committed.
8. In my view, the arbitrator did not fall foul on any of
the provisions of section 145 of the Labour Relations
Act.
9. In the circumstances the application for review is
dismissed.
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E. Revelas