Automated Summary
Key Facts
The applicant, employed as a Butchery Manager at Pick 'n Pay, was dismissed in June 2016 following a disciplinary enquiry for misconduct involving stock bumping (claiming 143kg of lamb and 264kg of beef that did not exist) and falsifying waste records by counting 488kg of beef trimming as fresh meat. The disciplinary hearing found him guilty of these charges except for the 264kg beef bumping. The CCMA arbitration award (November 2016) upheld the dismissal as substantively and procedurally fair, and the Labour Court dismissed the applicant's review application, finding no irregularities in the commissioner's decision-making process. The court also granted condonation for the late filing of a supplementary affidavit.
Issues
- The applicant contended the commissioner concluded a breach of trust without any evidence from the third respondent to substantiate this finding.
- The applicant asserted that the commissioner disregarded uncontested evidence provided during the arbitration proceedings.
- The applicant contended that the commissioner took into account irrelevant factors when determining the fairness of the dismissal.
- The applicant argued the commissioner found him guilty of dereliction of duty and theft, which were not part of the original charges brought by the third respondent.
- The applicant claimed the commissioner did not properly consider the material facts presented during the arbitration, leading to an unreasonable conclusion.
Holdings
- No order as to costs is made, as the requirements of law and fairness dictate that there should be no costs order.
- The condonation application for the late filing of the supplementary affidavit is granted because the applicant made out a case for the late filing.
- The application to review and set aside the arbitration award is dismissed as the applicant failed to establish any basis for review, including no evidence of misconduct, gross irregularities, or procedural unfairness by the commissioner.
Remedies
- There is no order as to costs.
- The application to review and set aside the arbitration award dated 01 November 2016, issued by the second respondent under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA) and under case number GAJB 12474-16, is dismissed.
- The condonation application for the late filing of the supplementary affidavit is granted.
Legal Principles
The court applied the legal principle of judicial review under section 145 of the Labour Relations Act, assessing whether the commissioner's arbitration award contained defects such as misconduct, gross irregularities, exceeding powers, or improper conduct. The analysis focused on whether the commissioner's decision was one a reasonable decision-maker could not have reached, particularly regarding the applicant's claims of misapplication of the law and failure to consider material facts.
Precedent Name
- Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
- Head of the Department of Education v Mofokeng and Others
- Herholdt v Nedbank Ltd
Cited Statute
Labour Relations Act
Judge Name
Judge Mahosi
Passage Text
- [22] On the appropriateness of the sanction, the commissioner considered the third respondent's code, which regarded fraud and forgery as dishonesty; the applicant's knowledge of the code, and his lack of remorse to find that the trust relationship had been destroyed. Consequently, he found that the dismissal was an appropriate sanction.
- [24] The applicant has not established any basis upon which this Court could find that the commissioner's award was reviewable. There is, therefore, no reason for this Court to interfere with it.
- [23] The manner in which the commissioner analysed the dispute before him does not support the applicant's version that he misconstrued the enquiry he had to conduct, misdirected himself on the point of law or committed an irregularity or an act of misconduct because, as the award reflects, he correctly dealt with the issue before him. Further, the commissioner considered all the evidence and applied his mind to the issues before him. As such, he dealt exhaustively with the evidence before him and considered all relevant factors before concluding that the applicant's dismissal was substantively and procedurally fair.