The Labour Court in Johannesburg has ruled in favour of Wits University to review and set aside an arbitration award in the dismissal of an employee who was fired after accusations of stealing a cellphone belonging to a student.
The employee, who worked as a cleaner, was reinstated after winning her case with the Commission for Conciliation, Mediation and Arbitration.
At the time of her dismissal on June 19, 2019, she occupied the position of a cleaning supervisor earning R15 000 per month.
“For reasons advanced above, I am of the view that the university has made out a case which warrants this court’s intervention. The award under review ought to be set aside. Submissions were made that this court should substitute the findings of the arbitrator with a finding that the employee’s dismissal was substantively fair… In the premise, the following order is made: the applicant’s review application is upheld,” the court ruling reads.
Wits University set out that the arbitrator automatically accepted the employee’s explanations to be true.
The university’s second ground of review is centred on the idea of the arbitrator “taking over the responsibility of the employee’s representative” by questioning the employee.
Before the cross-examination, the arbitrator enquired whether the union representing the employee, Numsa, wanted to lead the evidence or if it wanted the arbitrator to do so. Once the representative opted for the latter, the arbitrator posed all questions.
“The fact that the representative was a shop steward with little experience, does not afford the arbitrator the right to assume the role and duties of a representative,” the document reads.
According to evidence led during the hearing, the employee retrieved a cellular phone she found in the female toilets but did not immediately hand it over to security.
Another cleaning supervisor, on the instruction of the university, accompanied the employee to her place of residence to retrieve the phone. It was then discovered the phone’s SIM card and memory card were removed and all pictures deleted.
In her account of events, the employee claims there were no security officers at the end of her shift. Then she claimed that the following day she was “traumatised” by the news that her niece had been involved in a car accident and she left without handing in the phone yet again.
The following day she used a different handbag to work. The phone in question is said to be similar to the worker’s phone, which explains why her 21-year-old son took it and removed both the SIM and memory card.
