Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR1090/01) [2002] ZALCJHB 7 (6 December 2002)
The court found that the Commissioner’s findings were not rationally connected to the facts presented at arbitration, particularly given the absence of a record due to the Commission’s loss of tapes. In such circumstances, procedural fairness requires that the matter be referred back for fresh arbitration before a...
Source-derived case information.
- Citation
- [2002] ZALCJHB 7
- 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 Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR1090/01
- Procedural Posture
- Review Application / Judgment
- Outcome
- The arbitration award was set aside and the matter referred back for fresh arbitration before a different commissioner. No order as to costs was made.
- Judges
- E. Revelas
- Legal Topics
- Unfair Dismissal, Review of Arbitration Award, Absence of Record, Disciplinary Sanction
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
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
Legal Issues
- 1 Whether the dismissal of the fourth respondent for eating food in the deli section constituted unfair dismissal.
- 2 Whether the absence of a record of arbitration proceedings affects the review application.
- 3 Whether the arbitration award was rationally connected to the facts presented.
Ratio Decidendi
The court found that the Commissioner’s findings were not rationally connected to the facts presented at arbitration, particularly given the absence of a record due to the Commission’s loss of tapes. In such circumstances, procedural fairness requires that the matter be referred back for fresh arbitration before a different commissioner. The award was set aside and no order as to costs was made.
Court Disposition
The arbitration award was set aside and the matter referred back for fresh arbitration before a different commissioner. No order as to costs was made.
Orders
- 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.
- There is no order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
[COMMENT1] Sneller Verbatim/MS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE NO: JR1090/01
DATE: 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
[COMMENT1]BEGIN DEUR 'N "HEADER" TE MAAK