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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

  Case no:C603/2021

Not reportable

In the matter between:

       

SIYABONGA NGCIKIZA	Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION	First Respondent
M PIENAAR	Second Respondent
JJ KITSHOFF N.O.	Third Respondent

Date of Hearing: 20 June 2023

Delivered:  This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 14h00 on 20 June 2023

Summary: (Application to review CCMA arbitration award in unfair dismissal claim – no case made out – application dismissed)

JUDGMENT

LESLIE AJ

Introduction

[1] This is an unopposed application to review and set aside an arbitration award issued by the third respondent in his capacity as an arbitrator of the first respondent.

[2] The applicant was dismissed for misconduct (insubordination and disrespectful behaviour to his employer) on 10 February 2021.  At the time, he had several previous warnings, including a final written warning in place.

[3] The applicant disputed the fairness of his dismissal and referred a dispute under the CCMA’s case number WECT2082-21, which was arbitrated before the third respondent (“the commissioner”) on 8 October 2021.

[4] At the arbitration, Mr M Pienaar gave evidence on behalf of the employer (cited as N1 Paving Bricks and Blocks (Pty) Ltd at the CCMA).  He testified that on 2 February 2021 the applicant refused to execute tasks assigned to him and refused to move to another production line where his services were needed.  He testified that the applicant had a history of refusing to carry out instructions and that he had been issued various warnings in the past, including a final written warning dated 21 September 2020 (valid for 12 months).

[5] According to what is set out in the award, the applicant did not seriously refute these facts.  He alleged that his supervisor did not like him and was biased towards him.

[6] The commissioner found that the dismissal was substantively fair and accordingly dismissed the unfair dismissal dispute.

Review

[7] The applicant was unrepresented before this court. (It appears that he had taken steps to obtain assistance from Legal Aid and the SASLAW pro bono clinic, without success). 

[8] The applicant’s papers do not disclose any basis on which the award could be reviewed and set aside, having regard to the stringent test for review established by the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC).  That is, is the conclusion that the dismissal was fair one which no reasonable arbitrator could have arrived at.

[9] To assist the applicant, I have assessed the arbitrator’s findings with regard to the record that has been filed at court.  This consists of the arbitrator’s handwritten notes and the documents that served before the commissioner.  These notes and documents bear out that: (a) the applicant committed the misconduct in question; and (b) that at the time he had several valid warnings in place, including a final warning, for similar misconduct.

[10] Under these circumstances, the commissioner’s conclusion cannot be said to be one at which no reasonable arbitrator could arrive.  No case for review has been made out by the applicant.  The application accordingly falls to be dismissed.

[11] At the hearing of this application, the applicant alleged that his former employer owed him outstanding remuneration.  A dispute of that nature falls beyond the ambit of this court’s jurisdiction.  The applicant was advised to approach the Department of Employment and Labour for advice in this regard.

Order

[1] The application to review and set aside the arbitration award under the CCMA’s case number WECT 2082-21 is dismissed.

There is no order as to costs.

Leslie AJ

Acting Judge of the Labour Court of South Africa

Appearances:
For the Applicant:	In person

 

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