IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO J143/01
In the matter between
THE NATIONAL UNION OF METALWORKERS OF SA First Applicant
SEEPE AND THREE OTHERS Second – Further Applicants
and
L DREYER First Respondent
CCMA Second Respondent
VRN STEEL (PTY) LTD Third Respondent
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JUDGMENT
__________________________________________________________________
JAMMY AJ
1. The Second and Further Applicants in this matter were dismissed by the Third
Respondent for fraudulent timekeeping. In arbitration proceedings under the
auspices of the Second Respondent, the First Respondent in her capacity as the
Presiding Commissioner found that those dismissals were both substantively and
procedurally fair in terms of the Labour Relations Act of 1995 and that the
individual Applicants were not entitled to reinstatement.
2. In the unopposed application now before this Court the First Applicant, as their
trade union, and the four individual Applicants seek an order reviewing and setting
aside the First Respondent’s award in question. The Court was advised, in the
course of argument, that the application is however confined to the finding of
procedural fairness and that the First Respondent’s determination that the
dismissals in question were substantively fair, is not challenged.
3. In that narrow context, the following uncontested allegations of fact emerged from
the Founding Affidavit of Alfred Mashegoane, a local organiser of the First
Applicant and who, it appears from the record of the arbitration proceedings which
is before the Court, represented the Second and Further Applicants in the arbitration
hearing:
3.1 One of the four individual Applicants, Moses Seepe, was at all material times,
a shop steward of the First Applicant.
3.2 In purported compliance with the fair procedure requirements of paragraph
4(2) of the Code of Good Practice: Dismissal in Schedule 8 to the Labour
Relations Act 1995, the Third Respondent faxed notification to the First
Applicant of its intention to institute disciplinary proceedings against him.
3.3 That telefax was transmitted to an incorrect fax number and was never
received by the First Applicant.
3.4 At the outset of the arbitration hearing the First Respondent refused to allow
Moses Seepe to represent the other Applicants on the grounds that he himself
was one of the accused employees. An application which then followed for
postponement of the hearing to enable the Applicants to procure alternative
representation was refused and the hearing proceeded with none of them
represented.
4. Evidence on these procedural aspects was adduced in the course of the arbitration
before the First Respondent who, in her award, dealt with them as follows:
“I agree with the union that some elements of the internal disciplinary
enquiries were not perfect, although this was not sufficient to warrant
compensation for procedural unfairness. The Applicants had the
opportunity to state their case to the company prior to their dismissal.
The company believed it had informed the union of intended
disciplinary action against Applicant/Shop Steward Seepe, although it
used the wrong fax number. The dismissal of the four Applicants was
therefore fair”.
5. This superficial and dismissive assessment of what the Applicants submit were
serious procedural derelictions on the part of the First Respondent, are in manifest
conflict with certain of the provisions of Section 4(1) of the Schedule 8, the Code
of Good Practice, to which I have referred and which, in that context, records that –
“The employee should be entitled to a reasonable time to prepare the
response and to the assistance of a trade union representative or fellow
employee”.
The Third Respondent, it is submitted, is a substantial organisation,
disqualifying it from any dispensation relating to the basic requirements of
fair procedure and which might otherwise have been invoked by a smaller
business. No “exceptional circumstances” justifying such dispensation with
predismissal procedures, as provided for in Section 4(4) of the Code, existed
to justify it.
6. The First Respondent makes no attempt in her award to substantiate what she
perceives as inconsequential imperfections in “some elements of the internal
disciplinary enquiries” or her apparent acceptance as adequate, of the company’s
belief that “it had informed the union of the intended disciplinary action against the
Applicant/Shop Steward Seepe, although it used the wrong fax number”.
7. The Applicants’ dissatisfaction with the First Respondent’s conduct of the
arbitration in that regard, is in my view, understandable and reasonable. In dealing
with these specific aspects of the matter which I have addressed, the First
Applicant’s conduct was patently grossly irregular and cannot be sustained and
those specific issues clearly fall to be re assessed.
8. For these reasons the order that I make in this matter is the following:
8.1 The First Respondent’s award that the dismissal by the Third Respondent of
the Second and Further Applicants in this matter was procedurally fair, is
reviewed and set aside.
8.2 The dispute relating to the procedural fairness of their dismissal, and only that
aspect of their initial reference of the matter to the Second Respondent, is to
revert to the Second Respondent for arbitration afresh before a Commissioner
other than the First Respondent.
8.3 The matter being unopposed, there is no order as to costs.
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B M JAMMY
Acting Judge of the Labour Court
Date of hearing: 6 August 2003
Date of Judgment: September 2003
Representation:
For the Applicants:
Mr N N Kapa : Union Official