IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE NO: JR925/02
In the matter between
JDG TRADING Applicant
and
G SADIKI 1 ST
Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 2 ND
Respondent
BLIGNAUT, FRANSA 3 RD
Respondent
J U D G M E N T
REVELAS J :
[1] This is an application for review in terms of section 145 of the
Labour Relations Act 66 of 1995 (“the Act”). The applicant,
the former employer of the third respondent, seeks to review an
arbitration award made by the first respondent ("The
Arbitrator"), in favour of the third respondent.
[2] The third respondent was dismissed by the applicant for breach
of certain procedures and what it argues was dishonesty. It is
common cause in this matter that the applicant exchanged a
postdated cheque, signed by her husband, for R2 000,00 cash,
from the applicant and instructed her colleagues not to do the
banking on the Monday as the cheque was postdated for the
coming Tuesday.
[3] Since she had acted in this manner in front of her coemployees
inter alia , a certain Ms Lufono, she was reported, charged and
dismissed at a disciplinary hearing.
[4] It is also confirmed that in terms of the applicant's banking
procedures, banking of all cash received, be effected daily in
terms of a written process. In addition there was also a strict
policy with regards to which cheques may be accepted and how
all cheque transactions should be treated. The third respondent
was fully trained in, and fully aware of the provisions of such
policies and procedures. This was one of the main reasons why
the applicant felt, the third respondent should be dismissed.
[5] The third respondent required some funds for personal purposes,
being to purchase cattle, and the sum involved was R2 000, 00.
The third respondent removed this sum in cash from the
company funds on Saturday 12 May. I have already stated that
the sum was replaced by a postdated cheque, signed by the third
respondent’s husband for the same amount dated for the
Tuesday which was 15 May 2001.
[6] The arbitrator held that although aggravating circumstances
were not presented in evidence, and at the disciplinary hearing,
that could not be held as fatal against the employer's case in as
far as procedural fairness is concerned, as long as guidelines by
Schedule 8 (Code of Good Practice were followed, and they
were.
[7] With regard to substantive fairness, it had been conceded from
the beginning that the employee exchanged the postdated cheque for
cash. In respect to substantive fairness, the Arbitrator found as follows:
"Having considered the facts globally, I determine the
following:
1. That the consistency plea could not stand
against the employer as same is based on
hearsay and no proof that the employee took an
active initiative to have somebody discipline.
2. That I determined under the circumstances that
the sanction of dismissal is harsh, taking the following into
consideration.
2.1 The transaction was not done
secretly and the employee was always
open about it. (No act of dishonesty took
place).
2.2 The personal circumstances, for
example, service with a clean record
proves that the employee could improve to
avoid transgressions if given a second
chance."
[8] In essence, the applicant's case was that employers, rather than
arbitrators, should give employees a second chance when they
misconduct themselves. That may be so, but in this particular
matter, there are other factors which I have to (and which the
arbitrator did) take into account.
[9] In this application for review, I had to consider whether the
arbitrator's ultimate conclusion was connected to the facts
before him or her. In this case, the applicant committed a serious
breach of the applicant’s banking procedures. It is so, that in
most such cases, employers would be quite entitled to, and
would indeed decide to dismiss such an employee. Other
employers might take into account, as the arbitrator had done in
this matter, that the employee had a long, clean service record
and that she had not acted deceitfully. The arbitrator also
considered the suggestion that there was bad blood between Ms
Lufono and the third respondent, before this incident.
[10] Argument was also presented on behalf of the applicant, that the
third respondent had acted dishonestly, asking that the banking
be held over until the Tuesday. That may be an aggravating
factor to some extent, but it is clearly not indicative of patent
dishonesty as one would find in fraud or theft, as she did so
openly. In these circumstances, the arbitrator’s finding was one
of a reasonable range of outcomes and is not irrationally
disconnected to the facts.
[11] Even if I am wrong in finding that the Arbitrator did not act
irrationally, there is a further factor which persuades me that this
application for review should be dismissed, and that is that the
applicant filed and served its review application in June 2002.
The arbitration award is dated 14 May 2002. The applicant
therefore brought its application for review well in time.
However, thereafter the applicant and his attorney rested on
their laurels and this review came before the court for hearing
for the first time on 12 December 2005. The previous time the
matter was set down for hearing, was on 8 December 2005, but
this time it was set down by the third respondent who wished
the application for review to be dismissed due to the applicant's
failure to expeditiously prosecute its review.
[12] I am not convinced by any of the reasons presented by the
applicant's attorney that there is an excuse for a delay of more
than three years to persue a review application. It has led to
undue prejudice. The Labour Court also has to take a stand
against the employers who bring review applications and then
embark on delaying tactics. There is no time limit specified,
during which a litigant should produce the record of arbitration
proceedings in a review application, and that is where, in the
court's experience, most delays occur. These type of abuses are
used by several employers to avoid liabilities in terms of the
awards that are made against them. It is with growing concern
that I have noticed how long a review application can be
dragged out by simply doing nothing about serving a record.
Strong reliance is usually placed on alleged defects of the
CCMA’s administration and case management. Without going
into the appropriateness or otherwise, of such an assertion, it
would appear that any form of mismanagement at the CCMA is
manipulated to the advantage of those who wish to delay review
proceedings.
[13] The application is therefore dismissed with costs.
_________________________
Judge Elna Revelas
Judge of the Labour Court
Date of Hearing: 08 December 2005
Date of Judgment: 12 December 2005
On behalf of the applicant:
Adv. W Hutchinson instructed by Snyman Attorneys
On behalf of the respondent:
Mr A Naude of Coxwell Steyn Vise and Naude Attorneys