IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN

    Case No: D302/98

In the matter between:

MANILALL		 					Applicant

and

CCMA								First Respondent
A P SHANGASE						Second Respondent
GLOBAL MARINE						Third Respondent

PRESIDING JUDGE:
LANDMAN J

ON BEHALF OF APPLICANT:
MR FROST instructed by  G MUNIAN AND ASSOCIATES

ON BEHALF OF RESPONDENT:
No appearance
DATE OF HEARING:
20 AUGUST 1998
PLACE OF PROCEEDINGS		
Durban
____________________________________________________________________
J U D G M E N T
___________________________________________________________________

LANDMAN J:   

[1]	This is an application launched by Mr Manilall the Commission for Conciliation, Mediation and Arbitration, as the first respondent, Commissioner A P Shangase, as the second respondent, and Global Marine CC as the third respondent.

[2]	The applicant applies that the award made by Mr Shangase on 8 April 1998 that the dismissal of the applicant was not substantively unfair and that the applicant shall remain dismissed, be set aside and that the Commission be ordered to appoint another Arbitrator to arbitrate in the dispute between the applicant and the third respondent as to his dismissal from employment by the third respondent on or about 13 June 1997.

[3]	The facts of the matter have been carefully considered by the Arbitrator in his award. He comes to the conclusion that it is common cause that the applicant uttered the word "bullshit" to Mr Dougdale, his superior.  He also points out that it was not denied that the applicant slammed down the telephone on Mr Dougdale and he finds this to be so.

[4]	He also finds that the applicant did not see any need to apologise to Mr Dougdale.  Even at the arbitration proceedings he did not wish to tender an apology.

[5]	The Commissioner found the behaviour of the applicant to be very strange and arrogant and found that the applicant was correctly found guilty of insubordination.  He found that this conduct was 22unacceptable and decided that, in the circumstances, dismissal was the appropriate sanction.

[6]	The complaint made by the applicant against this award is that the Arbitrator could not reasonably have come to the conclusion that the alleged insubordination or failure to apologise was an adequate ground for the dismissal of the employee in the circumstances.

[7]	The point is also taken that the Commissioner failed to take into account the circumstances described in paragraph 3.5 of the Code of Good Practice which is attached to the Labour Relations Act No 66 of 1995.

[8]	Quite clearly the Arbitrator, in my opinion, was entitled to come to the conclusion which he did on the facts before him.  I am not sitting as a Court of Appeal but only as a Court of Review.  I can find no ground to intervene in that regard.

[9]	The Arbitrator, in the penultimate paragraph of his award, makes it clear that he has regard to Schedule 8 to the Labour Relations Act, which is the Code of Good Practice, and he concludes, however, that progressive discipline is not suited because of the applicant’s lack of remorse.  This being so, he felt constrained to decide that dismissal was an appropriate sanction.

[10]	In my opinion, I can find no reason to interfere with the award of the Arbitrator and consequently the application for review is dismissed.

SIGNED AND DATED AT CAPE TOWN ON THIS 23RD DAY OF SEPTEMBER 1998

..................
JUDGE A A LANDMAN

This judgment is available on the Internet at the following webside:
http//www.law.wits.ac.za/labourcrt