THE MATTER OF:
CRUSHERS (PTY) LTD RESPONDENT
matter was finalised by two members who constituted the majority of
the original number in terms of Rule 25 (2) of the rules
court because Mr. Kane the Labour panel member passed away before
the matter was finalised.
applicant herein was employed by the respondent as a blaster. In
that capacity he was responsible for drilling machine operators.
had a personal clash with one of the operators which resulted in
the management having to intervene. Despite managements
intervention he still could not work harmoniously with that other
worker resulting in him not being able to carry out certain
instructions of management because he said he was afraid to go near
that operator. He was disciplined for refusal to obey instructions.
He was found guilty and dismissed. He noted an appeal which was
considered by the Board of Directors on the basis of the record
then dismissed without him prosecuting it.
applicant launched the present proceedings complaining that his
dismissal was wrongful and unlawful because he was not given
hearing. In his evidence he pointed out that the hearing was unfair
because he was not given the chance to cross-examine
who gave evidence that led to his conviction. He further averred
that the appeal hearing was also unfair in
that the appeal was
decided in his absence. He further averred that he was refused the
right to be represented by the union
shop steward, Mr. Tsehlana.
respondent for their part do not deny that the applicant did not
cross-examine his accuser. He was asked in chief what transpired
after the supervisor had testified. He said he was called upon to
stand up and defend himself, whereupon he stood up and presented
version. He was asked if he knew his rights. He said he knew some
though not all. Under cross-examination he was asked
if he asked for
permission to ask the supervisor questions. He said he did. Asked
at what point he made that request he said
it was at the very end
where he was asked if there was anything he would like to say to
conclude the proceedings. It was at that
point that he allegedly
said he would like to ask Mr. Ryneke (the supervisor) some questions
and the request was turned down.
evidence is in stark contrast to what the applicant said in chief.
Never once did he allude to the chairman refusing him
the right to
cross-examine the witness. His evidence is that he did not ask
cross-examined because he did not know his rights.
All of a sudden
when he is asked under cross-examination if he asked for permission
he says he did and the permission was
refused. This now
constitutes a completely different reason and contradictory one at
that, for not asking questions in cross-examination.
This points to
one irresistible conclusion, that the applicant is fabricating.
he did not ask questions out of ignorance that is understandable.
However, to found a claim for irregularity in this regard
applicant ought to point to a rule or regulation that entitles him
to such a right. As Baxters Administrative law 4th
Ed. 1984 at p.354 puts it, natural
justice does not
entail a right of cross-examination.
In the absence of a specific rule on which he relies the applicant
cannot succeed on this ground.
applicant contended further that the hearing was unfair because the
appeal was dismissed in his absence. Again, we are unaware
rule of natural justice which entitles a person to personally
prosecute his case on appeal. The Labour Code Order 1992 (the
entitles an employee to an opportunity to state his side of the
story at the time of the dismissal. It does not afford
(employee) any further rights in the subsequent steps that
industrial relations practices entitle him e.g. appeal. It
therefore, that the exercise of such extra statutory rights as
appeals ought to be regulated by other instruments such
collective bargaining agreements or employers personnel codes.
To establish a breach on the part of the employer, the
ought to point to a rule or agreement that the employer has breached
by deciding his appeal without his participation.
In the absence of
such a rule the employer was at large to determine the appeal
last leg of applicants case is that he was refused permission to
be represented by a union steward Mr. Tsehlana. He said
evidence that the chairman said Mr. Tsehlana could only sit in the
proceedings as an observer. The question of representation
disciplinary enquiry is again one that is regulated by the
employers rules or collective agreements. It is not clear what
the rule in casu was, because the applicant has not pointed to any
rule in this regard that should guide our determination of
However, the disciplinary record which the applicant himself handed
up as evidence does not support applicants testimony
that he was
refused representation. At paragraph 1 of the record the following
following procedural matters were agreed upon:
That Mr. James
Tsehlana would attend the hearing as an observer and
representative of the defendant.
meaning can be ascribed to the above extract, it cannot be
interpreted to mean that applicant was refused representation
alleges. If anything Mr. Tsehlana was clearly recognised by the
chairman as his representative. Under paragraph 4
of the record the
following is recorded;
Intervention by Representative
Mr. Tsehlanas contribution as a representative is recorded.
Not only has applicant himself handed in this record,
he also never
contradicted its contents. It is follows therefore, that there is
no merit in this complaint as well.
applicant did not challenge the substantive fairness of his
dismissal. This is despite the fact that the merits of his
were extensively canvassed in his evidence. It follows
therefore that the failure of these procedural challenges to the
rest this case for good. The application is therefore
dismissed and there is no order as to costs.
DONE AT MASERU THIS 11th
DAY OF DECEMBER, 2002.
APPLICANT : MR. MOSAE
RESPONDENT: MR. MOLETE
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