““““““““Sneller Verbatim/MS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J1464/00
2003-05-02
In the matter between
NATIONAL UNION OF MINE WORKERS Applicant
and
1stRespondent
MOTOR INDUSTRY BARGAINING 2ND Respondent
COUNCIL
3RD Respondent
__________________________________________________________
J U D G M E N T
___________________________________________________________
LANDMAN, J : Mr Mokwena was employed by TV
Manufacturing CC. He was dismissed on 6 April 1999 for
attending an union meeting without permission and then
obtained a doctor certificate to ensure that he was paid for the
day.
The Commissioner of the Dispute Resolution Centre,
which arbitrates disputes in the motor industry, upheld the
dismissal. NUMSA and Mr Mokwena seek to review and set
aside the award. The notice of motion refers to section 158 of
the Labour Relations Act 66 of 1995. However, the award is
reviewable in terms of the Arbitration Act 42 of 1995. The
grounds of review are limited to those set out in section 33 of
this act.
The tapes of the arbitration hearing have been lost. The
commissioner’s notes have been destroyed. All that is
available is the account in the founding affidavit, which sets
out what transpired during the arbitration hearing, but
obviously it does not do so verbatim. The grounds of review
are set out in paragraph 13 of the founding affidavit. They are
the following:
“1. The first respondent acted grossly, irregularly and
misconstrued his powers under the Act, by clearly placing the
onus of proof on the shoulders of the applicant rather than the
respondent/employer.
2. The first respondent’s finding that the medical certificate was
not legitimate, because it said nothing about the applicant
suffering from back ache, was not supported by the evidence
placed before him.
3. The first respondent in reaching his finding that the applicant
was lying, when in the arbitration it contended that he was not
at the meeting and that Ndebele had made a mistake, failed to
take into account some of the evidence.
4. The first respondent acted contrary to his powers, in the
objects and requirements of the act in reaching his finding,
that the dismissal was procedurally fair.”
The applicant complaints that the Commissioner acted
grossly, unreasonably by placing the onus of proof on the
shoulders of Mr Mokwena. The Commissioner was, however,
obliged to determine whether Mr Mokwena was absent from
his place of employment and whether he did so in order to
attend the union meeting, when permission to be absent from
work for this purpose had been denied.
The evidence before the Commissioner was that Mr
Mokwena had not been refused permission to attend the
meeting. But he had attended the union meeting and
produced a medical certificate, which did not state that he was
unfit for duty on the day in question. It is in this context that
the Commissioner examined Mr Mokwena' version. He
rejected it on four grounds. The grounds involved a
consideration of the probabilities and the credibility of the
witnesses. It is not competent for this court to decide whether
the Commissioner's finding is unjustifiable. This is not a
ground which is countenanced by the Arbitration Act of 1965.
I have considered whether the Commissioner has
committed a gross irregularity by misdirecting himself as
regard the onus and the other findings which he made. In
coming to his conclusion, the Commissioner disbelieved the
union organiser, Mr Ndebele. Mr Cartwright, who appeared for
the applicants, candidly conceded that the union's evidence on
this score is open to some doubt. I find no irregularity on the
papers. In the circumstances there is no reason to interfere
with the award. The application is dismissed.
SIGNED AND DATED AT BRAAMFONTEIN ON 5 JUNE 2003
____________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR APPLICANT: Mr David Cartwright
APPOINTED BY: NUMSA