IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C1026/02
DATE: 21-8-2003
In the matter between:
SOUTH AFRICAN TRANSPORT & ALLIED APPLICANT
WORKERS UNION
and
The Commission for Conciliation, first applicant
Mediation and Arbitration
COMMISSIONER P VAN STADEN Second Respondent
A DAVIDS t/a DAVIDS TAXIS Third Respondent
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JUDGMENT
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LANDMAN, J:
The South African Transport & Allied Workers Union bring this
application on behalf of one of its members, Mr G N van Boven.
The first respondent is the Commission for Conciliation, Mediation
and Arbitration (the "CCMA"). The second respondent is
Commissioner Piet van Staden in his official capacity. Third
respondent is Mr A Davids t/a Davids Taxis.
It appears from the record that Mr van Boven was employed by
Mr Davids as a driver of a taxi and had been so employed for about
two years. On 8 February, Mr Davids terminated the services of Mr van
Boven. The Commissioner found that there had been a dismissal. He
then proceeded
JUDGMENT
to deal with the question whether the dismissal was substantively and
procedurally fair. The Commissioner decided that it was not
substantively fair.The Commissioner was of the opinion that the very
brief interchange before dismissal was sufficient. A fair hearing had
been given.
In my opinion, the Commissioner's reasoning is not rational and
the decision is not justifiable having regard to the material which
served before him. It was incumbent upon the Commissioner to
determine why Mr van Boven had been dismissed. The reason for
doing this is because that would determine what procedure should
have been followed prior to any termination. Indeed, if the proper
procedure had been followed there may have been no termination.
In the circumstances of this case, it appears to me that the
reason for dismissal can be found in the following facts. First, there
was an incident referred to as the "Table View incident". This incident,
it is common cause on the papers before me, but may not have been
common cause at that stage, did not concern Mr van Boven. The
second ground for the dismissal was the fact that Mr van Boven had
been fined R200 by the Blaauwberg Taxi Association. He still owed
R100. The effect is that he was not entitled to drive a taxi until he had
paid the fine. It therefore seems to me that this was a case of
temporary incapacity. Once Mr van Boven paid the balance of the fine
he would be able to resume his employment. In these circumstances,
it was incumbent upon Mr Davids to try and avoid the possibility of
dismissal. According to Mr Davids he could have gone and spoken to
the Blaauwberg Taxi Association about the matter. He says he might
have been prepared to
21-8-03/10:08 lend /...
JUDGMENT
lend the R100 to Mr van Boven. Certainly, the least that he could have
done was to put Mr van Boven on terms and say to him that he has a
reasonable period of time within which to settle that debt so that he
could resume his services. None of this was done. There is an
obligation on an employer to avoid dismissal wherever possible.
In the circumstances, I am of the view that the Commissioner
should have found that the dismissal was neither substantively nor
procedurally fair.
Mr Field, who appeared on behalf of the applicant, asked that
this Court should make the order which the Commissioner should have
made. He submitted that this Court should order the reinstatement of
Mr van Boven in his employment with Mr Davids. On these facts set
out before me, I am unable to determine whether or not Mr van Boven
is still unemployed because it is apparent that he obtained
employment some three weeks after he had been dismissed.
In the circumstances I do not propose to entertain the
reinstatement of Mr van Boven. I am of the opinion that he would be
sufficiently compensated if he were to be awarded compensation in
the sum of an amount equal to two months his wages which are
calculated on an amount of R300 per week.
Accordingly, the arbitration award of the second respondent
issued under case number WE3371/02 is reviewed and set aside and
replaced with the determination that the dismissal of Mr van Boven
was substantively and procedurally unfair. Mr Davids is to compensate
Mr van Boven for his unfair dismissal in an amount of R2 400
equivalent to two months' Mr van Boven' remuneration calculated at
R300 per week. There is to be no order as to costs.
SIGNED AND DATED AT BRAAMFONTEIN ON 17 SEPTEMBER
2003
_________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA