IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1186/22
In the matter between:
TEMBE BLESSING Applicant
And
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
SUNDUZA MODONSELA Second Respondent
NAS COLOSSAL AVIATION SERVICES Third Respondent
Heard: 10 January 2024
Delivered: 31 January 2024
Summary: Review of arbitration award – misconduct dismissal – review
application dismissed – decision reached by the commissioner that the
dismissal of the employee was substantively and procedurally fair, was one
that a reasonable decision maker would arrive at.
JUDGMENT
SCHÄFER-KING, AJ
Introduction
[1] The Applicant launched an application to review and set aside the Second
Respondent’s arbitration award dated 23 May 2022 , which was issued under case
number GAEK3864-22. The application was opposed by the Third Respondent.
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[2] In terms of the award, the Second Respondent found that the Applicant’s
dismissal was substantively and procedurally fair, and accordingly dismissed the
Applicant’s case.
[3] The Applicant seek s an order that the arbitration award be reviewed and set
aside and that the matter be referred back to the First Respondent for a new hearing
before an arbitrator/commissioner other than the Second Respondent.
Background
[4] Briefly, the facts of this matter are that the Applicant was empl oyed by the
Third Respondent in the position of cargo sorter from 1 July 2021.
[5] The Applicant contended that he was unfairly treated in that he was not given
a permanent contract of employment, payslips and was not given the correct PPE,
which included a raincoat.
[6] A contract of employment was signed by the Applicant on 5 July 2021.
[7] Clause 9.1.2 of the contract of employment is an undertaking by the Applicant
that he will comply with all lawful instructions given to him from time to time by the
Third Respondent.
[8] Clause 9.1.3 of the contract of employment is an undertaking by the Applicant
to obey and comply with all lawful and reasonable instructions given by his superior.
[9] Clause 12.1 of the contract of employment states that the Applicant will notify
his supervisor or designated senior person at least 2 hours prior to the
commencement of his shift if he is unable to report for duty in case of illness or
unforeseen emergencies.
[10] The Applicant had been issued with a written warning on 22 June 2021 and a
final written warning on 9 November 2022 for unauthorised absenteeism.
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[11] A disciplinary enquiry took place on 17 March 2022, at which the Applicant
was charged with the following charges:
‘1. Refusal to carry out lawful and reasonable instruction: On or about 10 March
2022 you failed to carry out a lawful and reasonable instruction from your superiors
by obtaining a written explanation concerning your absence from work on the 02, 14,
17, 21 and 28 February 2022 and 3 and 8 March 2022.
2. Unauthorised absenteeism: In that on 02, 14, 17, 21 and 28 February 2022
and 3 and 8 March 2022 you were absent from work without authorisation.
3. Gross breach of company rules of employment: Your actions as outlined
above are in direct breach of the company rules and regulations as well as your
contract of employment.’
[12] The Applicant was found guilty of the charges and summarily dismissed from
the employ of the Third Respondent on 6 April 2022.
[13] The Applicant challenged the substantive and procedural fairness of his
dismissal by referring an unfair dismissal dispute to the First Respondent under case
number GAEK3864-22.
[14] The unfair dismissal dispute was arbitrated on 11 May 2022 . The Second
Respondent issued the arbitration award on 23 May 2022 , which dismissed the
Applicant’s case on the grounds that the Second Respondent found that the
dismissal of the Applicant by the Third Respondent w as substantively and
procedurally fair.
[15] The Applicant’s grounds for review are set out in his founding affidavit. I do
not intend repeating such grounds of review here. The Third Respondent opposed
the application as set out in the Third Respondent’s answering affidavit.
[16] At the conclusion of the hearing of this matter:
[16.1] The Applicant argued that the Second Respondent’s decision
was unfair , as it favoured the Third Respondent and that i t was against the
Constitution, as it should have favoured the Applicant as he was the employee.
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[16.2] The Third Respondent argued that:
[16.2.1] T he Applicant has failed to set out any grounds upon which the
arbitration award can be reviewed and set aside;
[16.2.2] N o other arbitrator would have come to any other decision.
Analysis
[17] I do not deem it necessary to extensively address the relevant test to be
applied in proceedings such as this. The test laid down by the Constitutional Court in
Sidumo and A nother v Rustenburg Platinum Mines 1, namely that an arbitration
award will be reviewable if it is one that a reasonable decision maker could not
reach, is well established.
[18] The Labour Appeal Court (LAC) confirmed in Fide lity Cash Management
Services v Commission for Conciliation, Mediation & Arbitration & others2, that there
can be no doubt under Sidumo that:
‘[102] T he reasonableness or otherwise of a commissioner’s decision does not
depend – at least not solely - upon the reasons that the commissioner gives for the
decision. In many cases the reasons which the commissioner gives for his decision,
finding or award will play a role in the subsequent assessment of whether or not
such decision or finding is one that a reasonable decision maker could or could not
reach. However, other reasons upon which the commissioner did not rely to support
his or her decision or finding but which can render the decision reasonable or
unreasonable can be taken into account. This would clearly be the case where the
commissioner gives reasons A, B and C in his or her award but, when one looks at
the evidence and other material that was legitimately before him or her, one finds
that there were reasons D, E and F upon which he did not rely but could have relied
which are enough to sustain the decision.’
[19] U ltimately, whether or not an arbitration award or decision or finding of a
commissioner is reasonable must be determined objectively with due regard to all
the evidence that was before the commissioner and what the issues were before him
1 2008 (2) BCLR 158 (CC); (2007) 28 ILJ 2405 (CC).
2 (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC).
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or her.
[20] The LAC in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v C ommission
for Conciliation, Mediation and Arbitration3, stated the applicable test as follows:
‘In short : A reviewing court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated the facts presented at the hearing and
came to a conclusion that is reasonable.’
[21] It is common cause that the Applicant had been issued with a written warning
on 22 June 2021 and a final written warning on 9 November 2022 for unauthorised
absenteeism.
[22] In cases of employees being subject ed to a final written warning, I agree with
the judgment in Transnet Freight Rail v Transnet Bargaining Council & o thers
4,
where it wa s stated that employees already on a final written warning, leave the
employer with little choice but to dismiss them. In this judgment , the Labour Court
further concluded that “the presence of a valid final written warning at the time of the
commission of the same or similar form of misconduct should be properly interpreted
as aggravating in nature”
5, and that “ the principles of progressive discipline required
such a re-offending employee usually to be considered irredeemable”6.
[23] Having considered the pleadings, the record of the arbitration proceedings
which consists of the bundle of document s presented at the arbitration and the
transcript of the arbitration proceedings, I am satisfied that the arbitrator considered
the principal issue before him, evaluated the facts presented at the arbitration
hearing and came to a reasonable conclusion.
Conclusion
[24] I, therefore conclude that the review application falls to be dismissed, as the
Applicant has failed to make out any competent grounds for review of the arbitration
3 [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at para 16.
4 (2011) 32 ILJ 1766 (LC) at para 38.
5 Ibid at para 42.
6 Ibid at para 42.
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award and I am not persuaded that the decision reached by the Second Respondent
that the dismissal of the Applicant by the Third Respondent w as substantively and
procedurally fair, was not one that a reasonable decision maker would arrive at.
[25] In the premises, I make the following order:
Order
1. The review application is dismissed.
2. There is no order as to costs.
L Schäfer-King
Acting Judge of the Labour Court of South Africa
Appearances
The Applicant: Tembe Blessing
For the Third Respondent: Advocate M Bekenstrater
Instructed by: Moodie & Roberstson