IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH Not reportable
CASE NO. P623/02
DATE HEARD: 6/5/03
DATE DELIVERED:6/5/03
In the matter between:
TELKOM SA LIMITED Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER J A VAN DER WALT Second Respondent
ANDILE CASSEL GOSANI Third Respondent
___________________________________________________________
J U D G M E N T
______________________________________________________
PILLAY D, J
[1] This is an application for review and setting aside the award
of the second respondent, the Commissioner.
[2] The applicant has failed to file a complete transcript of the
tape
recorded arbitration. It relies on the notes of the
Commissioner supplemented here and there with its own
notes. It is certainly
not an agreed record. Nevertheless the applicant proceeded
with the review for substantive relief, not only for the setting
aside of
the award, but also for the court substituting the
Commissioner's
decision with a finding of that the dismissal was
procedurally and substantively fair.
[3] It relies for this order on the Commissioner's finding and the
reasons for finding that the third respondent was guilty of
the misconduct for which he was charged.
[4] The applicant, however, disagrees and criticises the second
part of the award relating to the mitigating factors that the
Commissioner found in favour of the third respondent.
[5] The third respondent on the other hand seeks to uphold the
award. In particular, it relies on the mitigating circumstances
which the Commissioner found favours the third respondent.
[6] Having heard the parties and considered the application
before me, it is quite clear that the finding of misconduct
and the charges relating thereto, feeds directly into the penalty
that should be imposed on the third respondent. The two issues
are inextricably linked.
[7] The court is not in a position, on the basis of the record that
has been filed, to substitute its decision for that of the
Commissioner. It is also not in a position to properly assess
whether the Commissioner's findings, both on the
misconduct and on the existence of mitigating factors is
reviewable. For the court to review both aspects, i.e. the
finding of misconduct and the mitigating factors, the court
requires clear evidence of what was presented to the
Commissioner. That is not available. For instance on the
question of the mitigating factors, it is important for the
trier of fact to make a proper assessment as to whether the
third respondent was genuinely under the apprehension
that his absence from work arose as a result of the
unacceptable medical certificate, or whether there was any
connection between the medical certificate and the fact
that he
was found to be at a tavern and attending a jazz festival
during his absence from work. A proper assessment of such
evidence goes to both the question of the misconduct per
se and the penalty that might ensue therefrom.
[8] The authorities, particularly those emanating from the
Labour Appeal Court, are quite clear as to the
circumstances in which a Commissioner might interfere with
a penalty imposed by an employer. It was submitted in this
case for the applicants that the Commissioner having found
that the misconduct was proved, ought not to have
interfered with the penalty.
[9] In my view, and in the light of the authorities, the CCMA is
not a rubberstamp for the employer's decision. A
Commissioner retains a discretion whether to interfere with
the penalty and in what respect or how he should interfere
if the facts and circumstances of each case so warrant.
[10] The applicant has the onus of ensuring that a sufficient
record is available to the court to enable it to decide the
matters it raises in its application. If it transpires that the
record is insufficient, then the applicant runs the risk of not
satisfying the requirements of a review and consequently
an appropriate order of costs against it.
[11] In this case the applicant has not furnished the court with a
sufficient record and the court is therefore not in a position
to
decide the reviewability or otherwise of the Commissioner's
decision for the reasons that I have discussed above.
The applicant ought to have anticipated that consequence
and accepted the offer, when it learnt of it at the very
latest, to refer the matter back to the CCMA for a rehearing.
In any event as I said the onus rests on the applicant to
ensure that there is a proper record, irrespective of any
offer that might or might not have been made and
whenever that offer might or might not have been made.
[12] The applicant has persisted to this day with its review
application
on a defective record and must therefore bear the costs of
this
application. The third respondent's opposition was
necessary, given the relief sought in the original notice of
motion, to the
extent that that relief was amended in the reply does not
alter
the situation seriously as the court has benefited from argument
from the third respondent in arriving at its decision. The court
would have been at a disadvantage if an opposing view had
not been presented.
[13] In the circumstances the court makes an order on the
following terms:
1. The application for condonation of the late filing
of the applicant's heads is granted, with no order
as
to costs.
2. The application to set aside the award is granted.
3. The matter is referred back to the CCMA to be
heard by a Commissioner other than the second
respondent.
4. The applicant is to pay the third respondent's
costs.
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JUDGE D PILLAY
APPEARANCES:
FOR THE APPLICANT : MR S B MGAGA
(COMPANY
OFFICIAL)
FOR THE RESPONDENT : ADVOCATE T M EUIJEN
INSTRUCTED BY : ATTORNEY GRAY MOODLIAR