IN THE LABOUR COURT OF SOUTH AFRICA 
HELD AT CAPE TOWN
BEFORE: Her Ladyship Ms Acting Justice A M de Swardt
CASE NO: C 353/2009
In the matter between:

and

COMMISSION FOR CONCILIATION, MEDIATION 

JUDGMENT

The applicant and third respondent, however, agreed in writing to arbitrate their dispute before the CCMA instead of the dispute being referred to the Labour Court for determination. The second respondent accordingly arbitrated the dispute in terms of the provisions of section 141(1) of the Act.

The award was posted to the applicant on 14 May 2009, as appeared from the date stamp of the post office on the envelope (which the applicant handed up during the proceedings before this Court) and the applicant received same on 18 May 2009. The application for review had to be brought within 6 weeks from the latter date, i.e. by 29 June 2009 and it was indeed launched on the latter date.

Service of the Notice and Motion and supporting affidavit upon Fruit & Veg was initially effected by facsimile. The applicant, however, subsequently amended his papers and the latter documents were served by the applicant on third respondent at the latter's business premises.

The applicant's application for review was not opposed.

At the arbitration proceedings, the applicant denied any misconduct at the aforesaid disciplinary hearing. The witnesses called on behalf of the third respondent testified that the applicant had indeed uttered the threat and had behaved in such an aggressive manner that he had to be removed from the disciplinary proceedings which were then concluded in his absence.

The Commissioner rejected the applicant's evidence as not being credible and accepted the evidence tendered on behalf of the third respondent.

The applicant, who appeared in person, raised a number of grounds for the review of the commissioner's award. I do not intend to deal with each and every one of these individually, inasmuch as the various grounds advanced overlapped and were to some extent repetitive. In essence, the applicant's grounds for review boil down to the following:
1.	The Commissioner misconducted himself by allowing third respondent to make an opening address and to present its evidence first;
2.	The Commissioner erred in rejecting the applicant's evidence of victimisation;
3.	The Commissioner erred in accepting the evidence of the witnesses called by third respondent to the effect that the applicant had made the alleged threat;
4.	The Commissioner ought to have found that the applicant's disciplinary hearing had been unfair, because he had been removed from such proceedings and the proceedings were conducted in his absence;
5.	The Commissioner was biased in favour of the third respondent.

At the outset it must be stated that the ground of review enumerated in paragraph 4 above clearly pertained to the disciplinary proceedings which had been conducted on 28 January 2009. The fairness of such proceedings were not at issue before the Commissioner and cannot serve to found review proceedings in this matter.

As regards the first of the grounds for review adverted to above, it is clear from the record of the proceedings before the Commissioner, that the latter correctly decided that the fact of the applicant's dismissal was common cause and that the third respondent accordingly bore the burden of proving that the dismissal was fair. As a consequence of such decision, the third respondent was obliged to adduce evidence first and was entitled to make an opening address. There is nothing irregular about such ruling and there is no evidence to suggest that there was any misconduct on the part of the Commissioner in this regard.

The record of the proceedings before the CCMA does not provide any evidence that an irregularity occurred, or that the Commissioner misdirected himself. There is also no evidence indicating that the credibility findings made by the Commissioner were wrong. The findings made by the Commissioner are accordingly presumed to be correct. On perusing the transcript of the proceedings at the CCMA, it can also not be said that the findings by the Commissioner were such that no reasonable Commissioner could have made them on the evidence before him/her.

The grounds referred to under paragraphs 2 and 3 above are accordingly not capable of sustaining an application for review.

The applicant's allegation that the Commissioner was biased in favour of the third respondent appears to have been founded, to some extent at least, on the applicant's misunderstanding of the proceedings at the CCMA. The applicant appears to have been aggrieved, because the third respondent made an opening address and led evidence first. As has been pointed out above, the Commissioner was correct in conducting the proceedings in that way. For the rest, the applicant appears to allege that the Commissioner was biased, because he failed to accept the applicant's evidence.

There is no indication on the record of the proceedings before the CCMA that the Commissioner was biased as alleged. The Commissioner's findings are in accordance with the evidence and with the probabilities.

It is accordingly clear that the applicant's application for review cannot succeed. The following order is accordingly hereby made:
1. The applicant's application for the review of the arbitration award made by the second respondent on 8 May 2009 under Case Number WE 2355-09, is dismissed.

2.     No order as to costs is made.

A M DE SWARDT, A J 
7 December 2010

Date of Hearing: 	20 May 2010
Date of Judgment: 	.... December 2010
For Applicant:	In person