Sneller Verbatim/lks
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
2005- 05-18 CASE NO: JR1289/04
REPORTABLE
In the matter between
NKWANA SANNY Applicant
and
BRENDA VAN DER WESTHUIZEN N.O. First Respondent
BARGAINING COUNCIL FOR THE
MEAT TRADE Second Respondent
WATLOO MEAT & CHICKENThird Respondent
_________________________________________________________
_
J U D G M E N T
_________________________________________________________
_
REVELAS, J :
[1] This is an application for review brought in terms of section 145
of the Labour Relations Act 66 of 1995 as amended ("the Act") wherein
the applicant seeks to review an award made by the third respondent.
In terms thereof it was found that his dismissal was procedurally and
substantively fair.
[2] Briefly the facts are that the applicant was charged with
insubordination or refusal to carry out a reasonable instruction, namely
to put a plank under a certain machine used in the butchery department
where the applicant had been employed as a blockman. The second
charge was intimidation in that he allegedly threatened a certain Mr
Mashoga, by stating that he would get his brother to kill the said Mr
Mashoga, who allegedly wished to expose his theft of meat.
[3] The evidence of several witnesses were led at the disciplinary
enquiry and at the arbitration hearing after the applicant had referred a
dispute about an unfair dismissal to the Bargaining Council for the Meat
Trade in Gauteng.
[4] In a very well reasoned award, the arbitrator set out why certain
credibility findings were made in favour of the witnesses for the third
respondent. The applicant's version at the disciplinary enquiry and at
the arbitration hearing was one of denial.
[5] On grounds of review, it was argued on behalf of the applicant
that a certain Maria who was a tea lady, was the only witness that
overheard Mr Mashoga being threatened. It was argued that in the
work area where the applicant had been working at the time, there were
other employees and they must have heard what was said but there
were no such witnesses.
[6] I have listened very carefully to the submissions made on behalf
of the applicant by Mr Khoza for the union, and I have come to the
conclusion that there are no grounds for me to interfere in the credibility
findings made by the arbitrator. It must be remembered that this was
after all a review application and not an appeal. However, the arbitrator
failed to appreciate the enquiry she was supposed to conduct in respect
of the procedural fairness. It was common cause in the proceedings
that the applicant received notification to attend a disciplinary hearing
but that notification did not set out the charges. There were witnesses
who stated that the applicant was told what the enquiry would be about,
but there is also one witness who stated that this did not happen.
Therefore, there is a dispute of fact and in those circumstances the
arbitrator should have found that the procedure was flawed. Instead,
the arbitrator found that the applicant had willingly participated in the
hearing and that during the hearing it became clear to him what the
charges were. In my view, there should have been some form of
compensation for that procedural unfairness, but not a significant sum,
as the flaw was of a less serious nature.
[7] In the circumstances the arbitrator's award is set aside and
[7] In the circumstances the arbitrator's award is set aside and
substituted with the following:
1. The dismissal of the applicant was procedurally unfair.
2. The third respondent is to pay the applicant compensation equal
to two months' remuneration.
3. There is no order as to costs.
__________________
E. REVELAS
DATE OF HEARING: 17 May 2005
DATE OF JUDGMENT: 18 May 2005
ON BEHALF OF THE APPLICANT: Retail and Allied Workers Union
ON BEHALD OF THE RESPONDENT: Snyman’s Attorneys