THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 328/21
In the matter between:
INDRIN MARIEMUTHOO Applicant
and
LUNGILE MATSHAKA N.O First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Second Respondent
CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY Third Respondent
Heard: 8 December 2023
Delivered: 15 January 2024
(This judgment was handed down electronically by circulation to the parties’
legal representatives, by email, publication on the Labour Court’s website and
released to SAFLI. The date on which the judgment is delivered is deemed to
be 15 January 2024)
___________________________________________________________________
JUDGMENT
NAIDOO AJ
[1] The applicant seeks to review and set aside an arbitration award issued by
the first respondent (the arbitrator). In h is award, the arbitrator held that the
applicant’s dismissal by the third respondent was substantively fair, but
procedurally unfair and awarded the applicant, three months salary as
compensation, amounting to R234 000.00.
[2] The third respondent, (the City) filed a cross review seeking to review and set
aside the arbitrator’s finding that the applicant’s dismissal was procedurally
unfair.
[3] The applicant commenced employment with the City in May 1986 . He was
appointed as the Deputy Director: Printing since 1 April 2013 which position
he still held at the time of his dismissal. He was dismissed on 31 January
2019, after being found guilty of four charges of gross misconduct, which
broadly summarised , involve gross negligence/gross dereliction in the
performance of his duties, alternatively failure to act in the best interests of the
City (charge 1); dishonest misrepresentations to the City Manager (charge 2);
financial prejudice to the City and/or fruitless and wasteful expenditure
(charge 3) and failing to properly manage and timeously finalise the
procurement process for the High Speed Copiers Maintenance Contract
(charge 4). The applicant disputed the fairness of h is dismissal and referred
the dispute to the second respondent.
[4] The material facts are disclosed in the record and recorded in the award
under review. The arbitrator found that the applicant was guilty of charges 1, 2
and 4 . The arbitrator concluded that he would not “ endorse a charge
emanating from not realising savings ” (charge 3) and so it would appear and
this was common cause, that he found the applicant innocent of charge 3.
The arbitrator’s reasoning and conclusions
[5] It is worth setting out the arbitrator’s reasoning and conclusions in some detail
below, for reasons that become clear later on when one evaluates the
remaining grounds of review.
[6] The arbitrator reasoned that the Executive Adjudicating Committee (EAC) for
Bid A525/17, recommended that Mr Sam Dubru (Mr Dubru), the Acting Group
Executive Director (AGED) and Treasury Department be authorised to
negotiate prices with the service providers to align their prices with the
cheapest prices quoted that will standardise copy charges. Mr Dubru sub -
delegated the task of negotiating prices to Mr Tshibalo, the Acting Group
Head, who would have the information regarding the tender. Mr Tshibalo
testified that he instructed the applicant to put together a negotiation team and
run the process. Mr Tshibalo, further nominated the Acting Director: Logistics
and Administration, Mr Mboniseni Nemangaani (Nemangaani), to also be a
part of the negotiations, because the tender was for the department.
[7] On 4 July 2018, it transpired that the applicant did not convene a negotiating
team as instructed by Mr Tshibalo, but instead, o ver 4 and 5 July 2018, the
applicant re -convened and chaired the Bid Evaluation Committee (BEC) for
purposes of price negotiations with service providers. It was discovered during
cross examination that the applicant did not provide the B EC members with
the written mandate to negotiate prices.
[8] On 4 July 2018 , Mr Nemangaani attended the price negotiation meeting, but
the applicant asked him to leave the price negotiation meeting as Mr.
Nemangaani was not a member of the BEC. On the same day, Mr. Tshibalo
and the Group Head of Supply Chain Management, Ms Thembisa Peele (Ms
Peele) informed the applicant that from a Supply Chain Management (SCM)
perspective, the BEC was not authori sed to negotiate prices with the service
providers. Th e applicant created an impression that he would cease
negotiating as the B EC and convene a negotiation team as initially instructed
by Mr. Tshibalo. He did not do so and the BEC reconvened on 5 July 2018.
[9] In re-convening and chairing the BEC for purposes of price negotiations, the
applicant acted without the requisite authority, there was no written mandate
for the BEC to negotiate prices and the EAC did not mandate the BEC to
reconvene for purposes of price negotiations but instead resolved that the
AGED and Treasury Department must negotiate prices with the service
providers.
[10] In so far as the applicant relied on the Probity Report, in which according to
him, the City Manager gave the BEC the go ahead to undertake price
negotiations, the arbitrator found that the applicant could not rely on the
Probity Report as the Probity Report was signed on 23 April 2018, while the
EAC meeting was held on 29 May 2018 and the EAC resolution was signed
on 18 June 2018. Therefore, the Probity Report predated the EAC Resolution.
[11] In so far as the applicant alleged that there were missing recordings of the
EAC meeting held on 29 May 2018 which paint a different picture from that
contained in the EAC resolution, and which point to the BEC being authorised
to negotiate prices , the arbitrator reflected on this aspect. The arbitrator’s
ultimate finding on this score, however, was that t he EAC resolution clearly
authorised the AGED and Treasury Department to negotiate prices with the
service providers and not the BEC.
[12] In light of the above exposition, the arbitrator concluded that the applicant’s
conduct amounted to gross insubordination and/or gross negligence and/or
gross dereliction in the performance of his duties, alternatively failure to act in
the best interests of the City and constitutes a breach of his fiduciary duties
towards the City.
[13] While the applicant raised an inconsistency challenge to the effect that all
members of the BEC should be disciplined, the arbitrator referred to the
principles endorsed in Southern Sun Hotel Interests (Pty) Ltd v CCMA and
Others1 and found that there were differentiating circumstances between the
applicant and the other members of the BEC in that, the management of the
tender was the applicant’s responsibility as the Deputy Director: Printing, he
was the Chairperson of the BEC and presented the report to the EAC , he
drew the tender specifications and evaluated bids against the specifications,
he authored the resubmission report making recommendations that the EAC
appoint the AGED and Treasury to negotiate prices and h e knew that after
resubmission at the EAC, the function of the BEC ceased.
[14] In relation to charge 4, and as to whether the applicant was responsible for
the High Speed Copiers Maintenance Contract, according to the Management
1 (2010) 31 ILJ 452 (LC).
Committee Meeting minute, the applicant was the official responsible for
providing feedback. On 19 January 2018, the applicant gave an update to the
Management Committee that the tender for the high speed maintenance
copiers would be advertised and was cited as the person responsible. Further,
a memorandum was addressed to the applicant regarding the delay in
finalising the High Speed Copiers Maintenance Contract tender on 4 June
2018. The applicant responded to this memorandum, by stating : “we are
anticipating to conclude the maintenance contract for the high speed copiers
by June 2018 .” By the time the applicant was suspended, he had still not
concluded the contract.
[15] The applicant raised two procedural challenges. One related to the Presiding
Officer permitting the City to be legally represented and the other related to
the appointment of an external Presiding Officer to chair the disciplinary
enquiry.
[16] The arbitrator, concluded in relation to permitting the City legal representation,
that the Presiding Officer of the disciplinary enquiry considered all relevant
factors and w as satisfied that it would be unreasonable to not allow the City
legal representation. The arbitrator, therefore accepted that the Presiding
Officer’s ruling allowing legal representation was reasonable and justifiable .
Despite the applicant being aware of his right to be legally represented he
elected to be represented by his trade union.
[17] The arbitrator concluded however, that it had not been demonstrated either at
the internal disciplinary hearing or in the arbitration, how it was not possible to
appoint a suitably qualified person, employed by the City, to serve as the
Presiding Officer and instead for the City to have appointed an external
person as a Presiding Officer “ who was more than just suitably qualified,
being a practicing attorney ”. This led to the arbitrator’s conclusion that it was
procedurally unfair to the applicant to have an external person as a Presiding
Officer, rendering his dismissal procedurally unfair and entitling him to
compensation of three months salary.
The grounds of review (main review application)
[18] The applicant’s review application is premised on two fronts, the first seeks to
attack the arbitrator ’s reasoning and the second seeks to have the award
reviewed and set aside on the basis that the arbitrator committed misconduct.
[19] The applicant contends that the arbitrator committed gross irregularities in the
form of latent irregularities in his reasoning in that: the finding that t he BEC
was not mandated was a finding that no reasonable arbitrator could reach
given the lack of the recordings (of the EAC meeting) , the fact that one of
BEC members who testified, Ms N icole Das Neves, corroborated the
applicant’s version that the B EC was mandated by the EAC and the Probity
Report and the EAC resolution mandated the BEC. T he arbitrator made too
much of the evidence of the City that the applicant committed gross
insubordination when there was no evidence of an instruction that was defied
by the applicant . Th e arbitrator ’s conclusion that the applicant was
responsible for the High Speed Copiers Maintenance Contract was a finding
that no reasonable decision maker could reach as the applicant was not
responsible for the tender. The arbitrator ought to have concluded that the
City applied discipline inconsistently in not charging the other members of the
BEC. Lastly, it is contended that the arbitrator failed to make an adverse
finding on the failure of the City Manager to comply with a subpoena to testify
at the arbitration.
[20] The applicant further contended that the arbitrator committed misconduct in
that he (a) slept throughout the proceedings, and (b) he created a reasonable
perception of bias by descending into the arena at various points and shielded
the City’s witnesses from being cross examined.
The cross review application
[21] The City contends that the arbitrator’s finding that the applicant’ s dismissal
was procedurally unfair on account of an external Presiding Officer being
appointed, is one which no reasonable arbitrator could have arrived at. The
appointment of an external Presiding Officer is permitted in clause 7.6.3 of the
Disciplinary Code. The City did lead evidence as to why it appointed an
external Presiding Officer. Ultimately, fairness is the consideration, and the
applicant received a fair hearing free of institutional influences, by a practicing
labour attorney who was impartial, there was no prejudice that the applicant
complained of nor did he articulate what unfairness in the procedure was
occasioned by the appointment of an external Presiding Officer.
Evaluation : The main review application
[22] In a matter such as the present, where the applicant relies on what are
contended to be reviewable irregularities in the assessment of the evidence,
the court must be cautious to ensure that the line between an appeal and a
review is not crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA 2, the
Labour Appeal Court (LAC) noted that a review court is not required to take
into account every factor individually, consider how the arbitrator treated and
dealt with each factor and then determine whether a failure by the arbitrator to
deal with one or more factors amounted to a process related irregularity
sufficient to set aside the award. The LAC has cautioned against adopting a
piecemeal approach, since a review court must necessarily consider the
totality of the available evidence.
[23] To summarise: the threshold to be met by an applicant in a review application
is one of reasonableness. The court is required to apply a two -stage test. The
first stage is to determine the existence or otherwise of any error or irregularity
on the part of the arbitrator. If the applicant is unable to establish any error or
irregularity, that is the end of the enquiry. The second stage is one in which
the review court must establish whether despite any re viewable irregularity,
the award nonetheless falls with in a band of decisions to which a reasonable
decision – maker could come to on the available material.
Whether the BEC was mandated
[24] To the extent that the applicant contends that, the finding that the BEC was
not mandated, was a finding which no reasonable arbitrator could have
arrived at, this is simply not true. Under cross examination, the applicant was
2 [2014] 1 BLLR 20 (LAC) at paragraph 18.
asked whether he had any written approval or mandate which authorised the
BEC to negotiate with service providers and he confirmed that he did not.3
[25] In support of his defence as to why the BEC was authorised , the applicant
relied on the Probity Report dated 23 April 2018 4 and on audio recordings of
the EAC meeting held on 29 May 2018 which are missing . However, his
version must be evaluated against the EAC resolution signed on 18 June
2018, which specifically records in recommendation 2 that the AGED and
Treasury Department are authorised to negotiate prices with the service
providers. There is no explanation tendered as to why the arbitrator should
have ignored the EAC resolution which is clear as to who is authorised to
undertake price negotiations in favour of audio recordings of the very same
EAC meeting which apparently paint the opposite picture. The applicant is
familiar with the SCM policies and accepted that the authorisation for price
negotiations must be contained in writing. 5 He could also not explain why he
did not seek to have the EAC resolution corrected despite it (if his version
were to accepted) containing materially inaccurate information. 6 If the
applicant’s version were to be accepted, it would mean that seven people
signed the EAC resolution (through the different stages that it followed)
despite it being materially incorrect. The probabilities do not support this.
[26] In argument before the Court , it was contended that the evidence of Ms Das
Neves corroborated the applicants and the arbitrator should have taken this
into account. It is significant however that Ms Das Neves was a member of
the BEC which convened to undertake price negotiations 7 in circumstances
when it is alleged that the BEC was unauthorised to do so . She was called to
testify that the BEC (of which she was a member) was authorised, hence, it is
not surprising that she would corroborate the applicant. She testified that one
would not always act on what Probity does and that this was an opinion. 8 A
conspectus of the Probity Report reveals that it is marked private and
3 Transcript, pg 1506-7.
4 Pg 284, CCMA Records File 1.
5 Transcript, pg 1506-7
6 Transcript pg 1571.
7 Transcript pg 1839
8 Pg 1847 of the transcript.
confidential and does not make binding resolutions which would have the
effect of overruling the EAC resolution, which in any event, came later.
[27] Ms Das Neves could not explain why the EAC resol ution contained the
recommendations that it did and stated that she would have to go back to the
audio recordings to confirm whether the EAC resolution is correct.
[28] On a balance of probabilities, the failure of the arbitrator to attach much
weight to Ms Das Neves’ evidence did not constitute a gross irregularity.
[29] In argument, it was raised that “hypothetically”, the arbitrator could not have
found that the applicant committed misconduct in re -convening the BEC if he
was instructed to convene a team to negotiate prices and his actions in
reconvening the BEC had the same effect. The trouble with this argument is
that, the applicant denied that he was given an instruction to convene a team
to negotiate prices. He argued that it may have been advice which was not an
instruction and then shied away from taking the arbitrator or this court into his
confidence and disclosing any factual basis that would support a finding that
reconvening the BEC was tantamount to putting together a team to convene
price negotiations. All that he left the arbitrator to work with, was his assertion
that he did not commit misconduct because he was authorised to convene the
BEC which authority he obtained from the Probity Report and his version of
what was discussed at the EAC meeting (which was contradicted by the EAC
resolution). The arbitrator’s findings on this score, therefore, fall within the
band of decisions to which a reasonable decision – maker could come to on
the available material.
[30] As to whether or not an instruction was given or whether the applicant’ s
conduct amounts to insubordination is of no moment. The arbitrator records in
paragraph 127 of the award that the applicant’s conduct amounted to gross
insubordination and/or gross negligence and/or gross dereliction in the
performance of his duties, alternatively failure to act in the best interests of the
City and constitutes a breach of his fiduciary duties towards the City . Either of
these findings would support the overall conclusion that the applicant was
guilty of the charge leading to the outcome of the award being reasonable.
Charge 4: The High Speed Copier Contract
[31] The arbitrator’s conclusion that the applicant is guilty of this charge is
supported by his reasoning contained in paragraph 131 to 133 of the award.
In correspondence to the applicant, produced by the City to show he was
responsible for the contract, the applicant did not raise any dispute therein.
The arbitrator’s reasoning and conclusion on this charge is unassailable. This
was a serious charge of misconduct.
Inconsistency Challenge
[32] The arbitrator properly considered the law and principles in relation to
inconsistency and had regard to a number of material differentiating fac tors
between the misconduct committed by the applicant and the rest of the BEC
members. These factors are contained in paragraphs 133 -136 of his award
and are material. The arbitrator’s reasoning and conclusion aligns with what
was held by the LAC in Nyathikazi v Public Health and Social Development
Sectoral Bargaining Council and Others.9
Failure to draw an adverse inference f rom the failure of the City Manager to comply
with the subpoena.
[33] It is correct that t he applicant closed his case without the evidence of the City
Manager. However, the applicant does not set out on what basis the arbitrator
should have drawn an adverse inference from the failure of the City Manager
to comply with the subpoena and/or testify and how this amounted to a gross
irregularity, or affected the outcome of the award. The arbitrator committed no
reviewable irregularity in this regard.
Misconduct by the arbitrator: (a) sleeping during the proceedings.
[34] The applicant contended that throughout the proceedings, the arbitrator would
sleep and not follow arguments and presentations by both parties. This forced
9 (2021) 42 ILJ 1686 (LAC).
the legal representatives to constantly request for short adjournments in order
to afford the arbitrator an opportunity to freshen up and recover from sleep.
The legal representatives did not put this on record so as not to embarrass
the arbitrator. In his heads of argument, the applicant relied on Value Logistics
(Personnel Services) (Pty) Ltd v Letsoalo10 where the award was set aside on
the grounds of the arbitrator having misconducted himself in sleeping during
the arbitration proceedings. According to the applicant, the moment it is
established that the arbitrator slept during the proceedings, this amounts to
misconduct and the award should be set aside irrespective of whether the
outcome is reasonable.
[35] The City contends that there is a vast difference between “sleeping
throughout the proceedings, as alleged by the applicant and dozing off at
certain intervals. Even if the arbitrator dozed off at certain intervals, he
nevertheless considered and assessed all the evidence led by both parties
and arrived at rational conclusions insofar as the substantive merits of the
applicant’s dismissal is concerned , that any reasonable decision maker could
have arrived at in the circumstances. The City relied on the judgment of
SASBO obo Mahlangu v Commission for Conciliation, Mediation and
Arbitration and Others 11 (in which the Court (after referring to Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation
Mediation and Arbitration and Others12 (“Gold Fields”) concluded that:
‘…the applicant must make out a case showing that the alleged
sleeping by the commissioner during the arbitration proceedings
resulted in a mistrial of issues and/or failure by the commissioner to
resolve the substantial dispute between the parties.’
10 [2014] 10 BLLR 1018 (LC).
11 JR1142/15) [2019] ZALCHB 52 (20 March 2019) at para 24.
12 Goldfields (Id fn 2) at paragraph 14.
[36] In Gold Fields 13, the LAC found, in effect, that in order to succeed with a
review for misconduct, the applicant must establish both the act of misconduct
and that the outcome of the award was unreasonable.
[37] In Gordon v JP Morgan Equities SA (Pty) and Others 14 Steenkamp J held that
the fact that the arbitrator did fall asleep is not the end of the enquiry. If the
arbitrator only momentarily lost concentration, the employee may not have
been prejudiced. The court analysed the record and concluded that i t did not
appear from the record that the arbitrator had nodded off for more than a few
seconds or perhaps minutes of evidence. This momentary lapse did not
deprive the employee of a fair hearing.
[38] While the arbitrator’s conduct in relation to dozing off at times does warrant
criticism, the applicant did not place the arbitrator’s conduct on record or
complain during the proceedings that his right to a fair hearing was impacted .
There is also no statement in the founding affidavit as to when and how often
this would occur, and it certainly could not have been throughout the
proceedings considering the applicant ’s contentions that the arbitrator
descended into the arena especially in so far as the applicant’s case was
concerned. The arbitration proceeded over 17 days between 13 September
2019 to 14 December 2020 both virtually and physically . A perusal of the
record (which is approximately seven lever arch files) indicates that the
evidence was free flowing . There are copious handwritten notes taken by the
arbitrator. The award reveals that the salient evidence was captured correctly
and in the correct sequence. There is no indication of a mistrial of the issues ,
the arbitrator understood the issues he was required to determine and he
carried out his functions in material aspects.
[39] In Gordon v JP Morgan Equities SA (Pty) and Others 15 Steenkamp J cited an
obiter remark by the SCA in Sager v Smith16 where the following was said:
13 Id fn 2.
14 [2018] 1 BLLR 39 (LC).
15 Ibid.
16 2001 (3) SA 1004 (SCA) at para 19.
‘Although it is not necessary to decide the matter it is interesting to note
briefly how the problem has been dealt with in other jurisdictions.
In (1997) 71 Australian Law Journa l 745, a case note was published
which said that the English Court of Appeal had held that when a judge
fell asleep, it was the duty of counsel to wake him or her up, not just to
note an appeal point for later. The same result was reached
in Queensland in Stathooles v Mt Isa Mines Ltd [1997] 2 Qd R 106 at
113. See (2001) 75 Australian Law Journal at 4-5.’
[40] The applicant has not established (on the basis of the record or the award)
that the arbitrator committed misconduct or for that matter that this resulted in
a mistrial of the issues or a failure to resolve the substantial dispute between
the parties such that it would warrant setting aside the entire award.
Misconduct by the arbitrator: (b) descending into the arena.
[41] It was contended by the applicant that the arbitrator shielded the City's
witnesses from cross examination and descended into the arena.
[42] After having had the benefit of reading the papers and the record, I do not find
merit in th is complaint raised against the arbitrator. There is nothing in the
record, to show that there was undue interference by the arbitrator in the
arbitration proceedings and with the witnesses’ testimony. There is therefore
no indication that the arbitrator abandoned the rules of natural justice or that
he conducted himself in a manner that could be seen to be irregular or
biased. I can therefore find no gross irregularity that exists in relation to this
ground of review.
[43] In the absence of any reviewable irregularities or misconduct for that matter,
the grounds for review stands to be dismissed. Further, on an assessment of
all of the evidence, the outcome of the arbitration proceedings, i.e. that on a
balance of probabilities the City had proved that the dismissal of the applicant
was substantively fair, falls within a range of decisions to which a reasonable
decision-maker could come on the available evidence.
The cross review.
[44] Clause 7.6.3 of the Disciplinary Procedure provides that:
“Should it not be possible to appoint a suitably qualified person,
employed by the Municipality, to serve as the Presiding Officer due to a
lack of suitably qualified persons, or where Presiding Officers are
threatened or intimidated, the Municipal Manager or his authorised
representative may appoint a suitably qualified external person, not
employed by the municipality, to serve as the Presiding Officer.” What
is key to the interpretation of this clause is the words “suitably qualified”
which according to clause 7.6.2 of the Disciplinary Procedure means “a
person sufficiently competent to preside over a disciplinary hearing.”
[45] In the disciplinary hearing, the City applied for legal representation and this
was granted by the Presiding Officer. The arbitrator when determining
whether the decision to grant legal representation to the City was fair or not ,
self-evidently accepted the City had demonstrated that there was a lack of
suitably qualified persons internally to act as Prosecutor. It is therefore ,
unreasonable for the arbitrator to conclude that the City did not demonstrate
that were no suitably qualified persons, internally to act as Presiding Officer.
[46] The arbitrator concluded (in paragraph 137 of the award ) that in assessing
whether l egal representation should have been permitted in the disciplinary
hearing that, our courts have held in various instances that procedural
fairness in respect of disciplinary enquiries relate s to the observance of the
principles of natural justice . The arbitrator however, failed to apply the same
reasoning in determining whether the principles of natural justice were
observed as a result of the appointment of an external Presiding Officer. In
short, the Disciplinary Code permitted the City to appoint a suitably
qualified/sufficiently competent external person as the Presiding Officer and
the City did adduce facts in support of this decision, which were the same
facts accepted by the arbitrator in determining that an external practicing
attorney be permitted to represent the City . The Disciplinary Code gave the
City this discretion.
[47] The Labour Appeal Court in Highveld District Council v CCMA and others17
dealt with the consequences of a deviation from a Disciplinary Code in a
pragmatic manner. The LAC held:
‘… The mere fact that the procedure is an agreed one does not,
however, make it fair. By the same token, the fact that an agreed
procedure was not followed, does not in itself mean that the
procedure actually followed was unfair” …’
[48] The applicant has failed to set out why he was prejudiced by the appointment
of an external Presiding Officer or demonstrated how this impacted on his
right to a procedurally fair hearing.
[49] Contrary to the arbitrator’s finding on the score, evidence was led as to why
the City appointed an external Presiding Officer, which is also recorded in
paragraph 65 and 142 of the award.
[50] The City has demonstrated that the arbitrator failed to properly assess the
evidence before him in relation to whether the dismissal was procedurally fair .
This was a gross irregularity. On a conspectus of the material before him, the
arbitrator’s finding that the applicant’s dismissal was procedurally unfair, is a
decision which no reasonable decision maker could have arrived at and falls
to be reviewed and set aside.
Costs
[51] Finally, in so far as costs are concerned, the court has a broad discretion in
terms of section 162 to make an order for costs according to the requirements
of the law and fairness. This court ordinarily does not make orders for costs
against aggrieved employees who in good faith pursue legitimately filed
grievances against their employers. I would accept, in the applicant’s favour,
17 [2002] 12 BLLR 1158 (LAC) at 1162 at para 16.
that this matter falls into that category and intend therefore to make no order
as to costs.
[52] In the premises the following order is made:
Order
1. The main review application is dismissed.
2. The cross review application is upheld and the arbitration award is
substituted with a finding that the applicant’s dismissal was
procedurally and substantively fair.
3. There is no order as to costs.
P. Naidoo
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicant: Mr Luthuli of Bongani Khanyile Ka Luthuli Attorneys
For the respondent: Adv C Orr SC
Instructed by: Bowman Gilfillan Inc