Shoprite Checkers (Pty) Limited v Commission Conciliation, Mediation and Arbitration and Others (JR1090/01) [2002] ZALC 196 (6 December 2002)
The court found that the arbitration award was not rationally connected to the facts before the Commissioner, particularly given the absence of a record due to lost tapes. This procedural irregularity rendered the award reviewable. The matter was referred back to the Commission for Conciliation, Mediation and...
Source-derived case information.
- Citation
- [2002] ZALC 196
- Parties
- Applicant: Shoprite Checkers (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Philip Cohen; Respondent: The Retail and Allied Workers Union; Respondent: Tjikana D
- Court
- Labour Court
- Jurisdiction
- South Africa
- Case Number
- JR1090/01
- Procedural Posture
- Review Application / Judgment on Review of Arbitration Award
- Outcome
- The arbitration award was set aside and the matter referred for fresh arbitration before a different Commissioner.
- Judges
- E Revelas
- Legal Topics
- Unfair Dismissal, Disciplinary Procedure, Review of Arbitration Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shoprite Checkers (Pty) Ltd
Applicant
Commission for Conciliation, Mediation and Arbitration
Respondent
Commissioner Philip Cohen
Respondent
The Retail and Allied Workers Union
Respondent
Tjikana D
Respondent
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Legal Issues
- 1 Whether the fourth respondent's conduct constituted a breach of disciplinary rules.
- 2 Whether dismissal was the appropriate sanction for the alleged misconduct.
- 3 Whether the arbitration award was rationally connected to the facts presented.
Ratio Decidendi
The court found that the arbitration award was not rationally connected to the facts before the Commissioner, particularly given the absence of a record due to lost tapes. This procedural irregularity rendered the award reviewable. The matter was referred back to the Commission for Conciliation, Mediation and Arbitration to be arbitrated afresh before a different Commissioner.
Court Disposition
The arbitration award was set aside and the matter referred for fresh arbitration before a different Commissioner.
Orders
- The award of the second respondent is set aside.
- The matter is referred back to the Commission for Conciliation, Mediation and Arbitration to be arbitrated before a different Commissioner.
Full Case Text
Judgment text and source record
23 paragraphs
Sneller Verbatim/MS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR1090/01
2002-12-06
In the matter between
SHOPRITE CHECKERS (PTY) LTD Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 1st Respondent
COMMISSIONER PHILIP COHEN 2nd Respondent
THE RETAIL AND ALLIED WORKERS UNION 3rd Respondent
TJIKANA D 4th Respondent
________________________________________________________________
J U D G M E N T
REVELAS, J:
1. This is an application in terms of section 145 of the Labour Relations Act 66 of 1995 as amended. The applicant does business in the retail sector sells groceries and prepares food. There is a deli section on the premises of this particular store of the applicant. The fourth respondent was an employee of the applicant until her services were terminated for allegedly eating chicken in the deli section. The applicant based its observation on video footage where the fourth respondent was seen eating a chicken leg and a bit of rice.
2. At this stage it is not important to decide whether or not she ate giblets or which is a leg in question. What is common cause is that she indulged in eating (or tasting) food. The question is whether she breach a disciplinary rule and whether dismissal was the appropriate sanction. The Commissioner who arbitrated the dispute relating to the alleged unfair dismissal of the fourth respondent, made certain findings which do not seem to be rationally connected to the facts before him at the arbitration hearing.
3. Unfortunately there is no record in this matter. In certain circumstances an application for review should fail, but based on certain statements made by the Arbitrator, it is my view that this matter should be referred back to the Commission for Conciliation Mediation and Arbitration to be arbitrated by a different Arbitrator. It is common cause in this matter that the Commission lost the tapes of the proceedings and that no record could be transcribed.
4. In the circumstances I make the following order:
1. The award of the second respondent is set aside and the matter is referred back to the Commission for Conciliation Mediation and Arbitration to be arbitrated before a different Commissioner.
2. There is no order as to costs.
_________________
E. Revelas