IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
Case Number: JR1863/01
J67/02
In the matter between:
Applicant
and
First Respondent
Second Respondent
COMMUNICATION WORKERS UNION Third Respondent
Fourth Respondent
JUDGMENT
DLODLO AJ
Introduction
1. This is a review application brought by the Applicant in terms of section 145(2)(a)(ii)
and section 145(2)(a)(iii) of the Labour Relations Act 66 of 1995 (the Act). The
Applicant is Telkom SA Limited, a company duly registered in terms of Company
laws of SA. The first Respondent is commission for Conciliation, Mediation and
Arbitration (CCMA). The second Respondent Mr D. Matee , Commissioner who
conducted arbitration under the auspices of the first respondent in regard to the
dispute which is the subject of this review. The third Respondent is communications
workers union. The fourth respondent is Mr Mashaba, an employee of the Applicant.
THE FACTS
2. The fourth Respondent (Mr M. Mashaba) was employed by the Applicant as a
technical officer on the 21 st January 1991. On the 24 th November 1999, Mr Mashaba
faced certain allegations of misconduct which read as follows:
“Unauthorized use of a Telkom vehicle on various occasions between the
periods of March 1999 until October 1999 as misuse of company petrol card.”
Mr Mashaba was advised in writing to attend a disciplinary inquiry. The notice
gave him three(3) working days. This was in compliance with the collective
agreement in force at the workplace. A certain Mr Abba Essop was to chair the
inquiry proceedings.
3. On the date of the inquiry, it was postponed in order to enable Mr Mashaba to arrange
representation. It appears Mr Mashaba was firmly advised to bring along his
representative on the new date, being the 13 th December 1999. On the latter date Mr
Mashaba came without a representative. The matter was stood down to enable Mr
Mashaba to telephonically enquire where his representative was. On resumption there
was no representative. There was also no explanation. The inquiry was proceeded
with and Mr Mashaba was found guilty. The chairperson imposed dismissal as a
sanction. The inhouse appeal took place on the 14 th February 2000. Mr Mashaba was
then represented by a shop steward, Mr Lekgotla Mokotlo. The in house appeal was
unsuccessful.
CONCILIATION AND ARBITRATION
4. On the 18 th February 2000, Mr Mashaba referred the matter to the CCMA for
conciliation. The referral was late. An application for condonation was made.
Condonation was granted. The conciliation took place on the 26 th April 2001. The
matter became unresolved. It was referred to arbitration which took place on the 12 th
November 2001. At arbitration Mr Mashaba and his union representative, on one
hand, and, the applicant, on the other, agreed not to contest substantive fairness of the
dismissal. This agreement was placed on record. The Applicant informed the
commissioner that they would not call Mr Herman Keyser to give evidence. The
reason for not calling this witness was stated to be because the merits were not in
dispute. The Applicant’s only witness at the arbitration hearing was Mr Abba Essop.
The commissioner found that the dismissal was procedurally and substantively unfair.
He issued an award in the following terms:
“(a) The Respondent is ordered to reinstate Applicant retrospectively to the date
of dismissal being the 13 th December 1999.
(B) Any loss of salary or benefits suffered by the Applicant must be made good as
if nothing happened in the beginning.”
REVIEW APPLICATION IN TERMS OF SECTION 145(2)(A)(ii) AND
SECTION 145 (2)(A)(iii) OF THE ACT.
5. The applicant brought an application to have the award reviewed and set aside. The
review application seeks to attack the following findings made by the commissioner:
“(a) That the dismissal was both procedurally and substantively unfair;
(b) That the inquiry was held in the midDecember when people were preparing
to go on leave and that it influenced Mr Essop not to postpone the inquiry for
the second time;
(c) That the Respondent (Mr Mashaba) did not have adequate time to prepare
for his case nor his defence;
(d) The employer failed to charge Mr Mashaba timeously” .
GROUND FOR ATTACKING COMMISSIONER’S FINDINGS ARE:
DISMISSAL BOTH PROCEDURALLY AND SUBSTANTIVELY UNFAIR
(Commissioner had no Power to decide a matter. That he was not called
upon to decide)
6. Mr Leech, on behalf of the applicant submitted that there was no evidence on record
before the commissioner regarding substantive fairness of the dismissal. There was on
record instead an agreement between the parties not to address the issue of substantive
fairness. He further contended that in making a finding which is not supported by
evidence, the commissioner failed to apply his mind to the dispute before him. The
commissioner thereby committed an irregularity in the conduct of the proceedings. He
exposed himself to the provisions of section 145(2)(a)(ii) which reads:
“A defect referred to in subsection (1), means that the commissioner
committed a gross irregularity in the conduct of the arbitration award.”
Mr Leech relied on Carephone (Pty) Ltd v Marcus NO and others (1998) 19
ILJ 1425 (LAC) and County Fair Foods v CCMA & others (1999)20 ILJ 1701
(LAC) in support of his submission. Mr Mokoto (union official) on behalf of Mr
Mashaba conceded that no evidence was led on the question of substantive
fairness and that the commissioner was required to make a finding only on
procedural fairness of the dismissal. According to Mr Mkoto, apart from the
finding the commissioner made, namely, that the dismissal was “substantively
and procedurally unfair ”, the rest of the matter was properly dealt with by the
commissioner. In conclusion, Mr Mokoto contended that the commissioner did
apply his mind to the matter before him. He asked for the dismissal of the
application with costs.
EVALUATION
7. Having read the record of proceedings before the commissioner, it can be
confirmed that no evidence was led on question of substantive fairness of the
dismissal. Indeed the partie had not placed this in issue. John Grogan in his book
entitled “workplace Law” sixth edition states the following:
1. “The parties can agree to restrict the matter to be determined by the
arbitrator by, for example, agreeing that only the Substantive fairness of a
dismissal is at issue. If the commissioner proceeds to consider other matters,
for example, procedural fairness, the award can be set aside.” The learned
author refers to Northern Transvaal Motors v Phatudi & Others Labour
Court case number J161/98. (Unreported). It is not necessary to deal with other
grounds of attack on the commissioner’s finding. I find that the commissioner
decided on the issue not placed before him for decision. He thereby rendered
himself guilty of gross irregularity. This court is entitled to interfere. At the
request of the applicant as shown on the papers before me, I decide not to deal
with the matter myself, but to have it remitted back to the arbitrator.
Order
In the result therefore I make the following order:
(a) That the Application for review in terms of section 145(2)(a)(ii) is granted.
(b) That the finding and award made by the commissioner is set aside and the matter
is remitted to the CCMA to be arbitrated a fresh by a different commissioner.
(c) That the application in terms of section 158(1)(c) of the Act in case number J67/02
is dismissed.
(d) There is no order as to costs.
____________________
D. DLODLO AJ
Acting Judge of the Labour Court
30th July 2002
DATE OF JUDGEMENT: 6 September 2002
MR B.E. LEECH
MR M KOTO ( Union Official)