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[2024] ZALCJHB 68
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Raboroko v Kekana (JR1953-19) [2024] ZALCJHB 68 (21 February 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No:
JR1953/2019
In
the matter between:
TSHEPO EZEKIEL
RABOROKO
Applicant
and
NANCY
KEKANA
N.O
First
Respondent
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL (MEIBC)
Second Respondent
POLYOAK
PACKAGING (PTY)LTD
Third Respondent
Heard
:
4 July 2023
Delivered
:
21 February 2024
JUDGMENT
MAKOPO, AJ
Introduction
[1]
This
application is in terms of Section 145 of the Labour Relations Act
[1]
(LRA) and the Applicant seeks to review and set aside the arbitration
award issued by the First Respondent (Commissioner).
[2]
The application is opposed, the Applicant duly represented by
Attorney Mr Khumalo (Themba Khumalo Attorneys) and the Third
Respondent
duly represented by Mr Lee (Anton Bakker Attorneys).
[3]
The following grounds are noted for the
review application:
3.1
The arbitration award is not justifiable in
terms of the reasons given to it and more broadly having regard to
the evidence placed
before the Commissioner during arbitration.
3.2 There
is no rational objective basis justifying the connection between the
Commissioner’s decision sought to be reviewed
herein and the
material properly available to her.
3.3
The Commissioner’s decision is
irrational and therefore not justifiable.
3.4
The Commissioner committed a gross
irregularity in the conduct of the arbitration proceedings.
3.5
The Commissioner failed to apply her mind
to the evidence of the Applicant and did not examine the
probabilities of his version
nor test it against the dispute of facts
raised by the Third Respondent.
Background facts
[4]
The Applicant was employed by the Third
Respondent as a Truck Loader.
4.1
He clocked in and out without authorisation
on the 22
nd
and 23
rd
of October 2018.
4.2
It is common case, at the time there was a
legal strike and the Applicant was not a member of the Union.
4.3
It is common cause that the Applicant was
charged with dishonesty in that he failed to comply with the above
contractual provisions
and that he breached this rule, however, he
disputes this and alleges that he had tried to inform his supervisor
and that he could
not return back to the premises as he was fearing
for his life.
[5]
The Third Respondent contends that the
Arbitrator reached her decision that is both reasonable and fair and
the one that any reasonable
Arbitrator could reach.
5.1
The Third Respondent contends that the
Arbitrator conducted a proper assessment of the evidence and weighed
the probabilities of
the different versions presented to her.
5.2
The Third Respondent contend there is no
merit in any of the Applicant’s contentions, which are more
related to an appeal
than a review, and that the review application
should be dismissed with costs.
[6]
In
Nedcor
Bank Ltd v Frank and Others
[2]
,
the court described dishonesty as follows in paragraph 15:
‘
Dishonesty
entails lack of integrity or straightforwardness and, in particular,
a willingness to steal, cheat, lie or act fraudulently.’
6.1
Dishonesty is normally used to describe an
act where there has to be some intent to deceive or cheat.
6.2
The Applicant clocked in at work and did
not clock out on two occasions while there was a legal strike, which
the Applicant was
not a part of that strike. The intention was
clearly to deceive the employer that he had worked on those
particular days, whereas
he did not do so.
[7]
The Arbitrator clearly analysed the
evidence led as well as the evidence led by the Applicant.
7.1
The Arbitrator took into account the
seriousness of the offence and the element of misrepresentation and
dishonesty.
7.2
The Arbitrator was faced with two mutually
exclusive versions and having assessed the evidence she preferred the
Third Respondent’s
version and found the dismissal of the
Applicant was substantially fair.
Law and analysis
[8]
The
test to review an arbitration award is whether the decision is one
that no reasonable Arbitrator could reach and the grounds
listed in
Section 145 (2) of the LRA. The test for review which has been stated
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
was reiterated in
Herholdt
v Nedbank Ltd
[4]
as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds of s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the inquiry or
arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
to particular facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable.’
[9]
The
Court in
Assmang
Limited (Assmang Chrome Dwarsrivier Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
[5]
(
Assmang
Limited)
found one of the duties of a Commissioner, when faced with mutually
destructive versions is to not only look at the credibility
of the
witness but also the probabilities as well
[6]
.
Further in the matter of
Satani
v Department of Education, Western Cape and Others
[7]
,
the Court reiterated that not all inconsistencies and errors made by
a witness affect that witness’ credibility. The trier
of fact
ought to look at the evidence as a whole and determine the
probabilities.
[10]
On the full reading of the record and in
light of the above, I am satisfied that there are no grounds to
justify the review of the
award.
[11]
Therefore, based on all the reasons set out
above, I conclude that the First Respondent’s arbitration award
is simply not
reviewable. I am satisfied that the First Respondent’s
finding of facts is properly supported by the evidence before her.
The Applicant’s review application thus falls to be dismissed.
[12]
In the result, I make the following order:
Order
1.
The applicant’s review application is
dismissed.
2.
There is no order as to costs.
N Makopo
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr T Khumalo of Themba Khumalo Attorneys
For the
Respondent: Mr H Lee
of Anton Bakker Attorneys
[1]
Act
66 of 1995, as amended.
[2]
[2002]
ZALAC 11
;
(2002)
23 ILJ 1243 (LAC)
at
para 15.
[3]
[2007]
ZACC 22;
[2007]
12 BLLR 1097 (CC).
[4]
[2013] 11 BLLR 1074
(SCA) at para 25.
[5]
[2015]
ZALCJHB 4;
[2015]
6 BLLR 589 (LC).
[6]
Stellenbosch
Farmers’ Winery Group Ltd. and Another v Martell & Cie SA
and Others
[2002] ZASCA 98; 2003 (1) SA 11 (SCA).
[7]
[2016]
ZALAC 38
; (2016) 37 ILJ 2298 (LAC).