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JR1538-09

JR1538-09

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Published by: apriliaguydocs on Jul 31, 2013
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07/31/2013

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1
IN THE LABOUR COURT OF SOUTH AFRICAHELD AT JOHANNESBURGCase number: JR 1538/09
 In the matter between:
TELKOM LTD Applicant
 And
 THE CCMA 1
st
RespondentCOMMISSIONER PD FINE 2
nd
Respondent
 
SOLIDARITY obo BOTHA 3
RD
Respondent
 
Judgment
Molahlehi J
Introduction
 [1] This is an application to review and set aside the arbitration awardissued under case number GAJB 5821-09. In terms of thatarbitration award the second respondent (the commissioner) foundthat the dismissal of the third respondent, who for ease of reference I shall in this judgment refer to
as
the employee
,”
havebeen procedurally fair but substantively unfair. It was for thatreason that the commissioner ordered that the employee bereinstated.[2] The late filing of the review application was not opposed by therespondents. I see no reason why condonation for the late filing of the review application should not be granted.
 
2
The background facts
 [3] The employee was charged with misconduct concerning theassault on another employee, the complainant, who was employedas a contract cleaner by another company. Again for ease of 
reference I will in this judgment refer to Ms Matodzi as “thecomplainant.”
The employee was found guilty and dismissed for that reason. After the decision of the disciplinary enquiry theemployee launched an internal review of the decision to dismisshim. The internal review confirmed the dismissal.[4] In her testimony in support of the case of the applicant, thecomplainant testified that on the day of the alleged assault and inthe morning thereof she was busy cleaning the restroom when sheheard the mop falling outside the door. Her investigation revealedthat it was the employee who caused the mob to fall, she thenbend down to pick it up. According to her she suddenly felt a kickfrom behind as she bent down to pick the mop up. She was kickedby the employee and when she enquired why he was kicking her,the employee simply laughed and walked away.[5] The complainant further testified that when she reported the matter to Mr Dawie Olivier, she was told that the employee denied kickingher and that he said what he kicked was the mob.[6] The applicant then went to see the doctor as she was in pains. Thedoctor having heard what happened advised the complainant toreport the incident to the police. After examining her, the doctor noted the injuries she had sustained as a result of the allegedassault.[7] The complainant opened a case of assault with the police and theemployee was prosecuted in the magistrate court. He pleadedguilty to the charge of assault with the intent to do grievous bodily
 
3
harm and was sentenced to a fine of R500-00 or (8) eight monthsimprisonment. A further (12) twelve months imprisonment wassuspended for (5) five years. He was also declared unfit topossess a firearm.[8] The second witness of the applicant was Dr T.T. Setshogoe whotestified that she had examined the complainant during October 2008. According to the doctor the complainant could not walkproperly and was in a lot of pain. The doctor further testified thatthere were soft tissues and lower abdomen tenderness that wereconsistent with damage caused by a blunt instrument.
The case of the third respondent
[9] In his defense the employee testified, that on the day in questionhe went into the ladies rest rooms and when he came out hetripped over the mop. At that point the complainant came out of the
restroom and bend over to pick up the mop “
he touched her bum
with his shoe and said “Ek sal jou sommer skop op jou boud”.
[10] After the incident he left the workplace but was later called bysomeone who required him to explain what happened in therestrooms. He was also required to submit a written statementwhich he did the following day. According to him he would haveapologized to the complainant had she been at work the followingday.[11] He was thereafter arrested and released on a R1000 bail the nextmorning. At the criminal court hearing he pleaded guilty becausehe was advised to do so by his attorney. He also testified that hehad a good relationship with the complainant.
Grounds for review
 [12] The applicant contended that the commissioner failed to apply hismind to the relevant facts which were before him and that his

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