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[2024] ZALCJHB 98
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Bridge Service and Panel (Pty) Ltd v Commission for Conciliation, Mediation, and Arbitration (JR439/21) [2024] ZALCJHB 98 (21 February 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
JR439/21
In
the matter between:
BRIDGE
SERVICE AND PANEL (PTY) LTD
Applicant
and
Commission for
Concliiation,
Mediation
And arbitration
First Respondent
XOLANI
NYEMEZELE
NO
Second Respondent
ALFONSO
AMARAL
Third Respondent
Heard
:
21 February 2024
Delivered
:
21 February 2024.
This judgment was handed down electronically
by emailing a copy to the parties.
Summary:
Review of CCMA award. Commissioner failing to apply
rules of evidence. Award therefore unreasonable and set aside.
JUDGMENT
DANIELS J
Introduction
[1]
The applicant seeks to review and set aside an arbitration award (the
“award”) issued by the second respondent
(the
“commissioner”) on 4 March 2021 under CCMA case reference
GAJB13149/20.
[2]
The applicant agreed not to oppose the third respondent’s late
filing of its answering affidavit. The third respondent
(the
“employee”) agreed not to oppose the late filing of the
arbitration record, supplementary and replying affidavit.
The third
respondent further agreed that the citation of the applicant should
be amended from Mokoro Holdings Co. (Pty) Ltd to
Bridge Service and
Panel (Pty) Ltd (hereafter the “employer”). Given that
these measures advance the expeditious resolution
of the dispute,
those issues are dispensed with in accordance with the parties’
agreement.
Material
facts
[3]
The employee was engaged by the applicant as an assistant mechanic.
When he was dismissed, he had about 2 years of service
and a clean
disciplinary record.
[4]
The employer had a strict policy (the “policy”) that no
employee was permitted to enter its storage yard in
the absence of
permission from a supervisor. As the employer’s witness put it
at arbitration, the policy or rule was that
no employee was “to
go anywhere into the yard
for any reason
without any
permission”.
[5]
The policy was designed to prevent theft from the storage yard, where
the employer stored various items of value, and
from where there had
been much theft. The employer presented evidence, at arbitration,
that its business was not doing well due
to the high incidence of
theft from the storage yard. This was not contradicted.
[6]
The employee was fully aware of the policy. In fact, the policy had
been explained to him on the morning of the incident
which ultimately
led to his dismissal.
[7]
On 20 May 2020, the employee was seen in the storage yard by a
manager, Mr Sharad Mane (“Mane”). The manager
asked the
employee why he was there. In response:
7.1 On the
employer’s version, the employee told Mane that he had
forgotten about the rule and apologized.
7.2 On the
employee’s version, he told Mane that he was executing an
instruction by his supervisor, Mr Shane Dwayne
(hereafter “Dwayne”)
which required him to enter the storage yard.
In
the presence of Mane, and the employee, the supervisor denied that he
had given the employee permission to enter the storage
yard.
The
Arbitration
[8]
It was common cause that:
8.1
The
employer had a strict policy that employees should not enter the
storage yard without permission.
[1]
8.2
On the
morning of the incident, Dwayne informed everyone that they are not
to enter the storage yard without permission.
[2]
This information was imparted during the daily morning meeting held
in the workshop.
[3]
The
employer’s sole witness was present at the meeting.
8.3
The
employee had not been given permission by his supervisor to enter the
storage yard.
[4]
8.4 Despite the
absence of permission, the employee had entered the storage yard.
[9]
Quite
correctly, the employer viewed the abovementioned concessions as
adequate proof that the employee had committed the offence.
Despite
it being common cause that the employee had not been given permission
to enter the storage yard, the commissioner maintained
that the
employer should have called the supervisor to corroborate this.
[5]
[10]
At the
start of the arbitration, the commissioner warned the parties as
follows: “
it
is critical or crucial for both parties when you cross examine a
witness and you are disputing the version the witness is putting
it
is crucial for you to put the version you rely on to the
witness
”.
[6]
Despite this, when the employee cross-examined Mane, the employer’s
sole witness, the employee put no version to Mane
that his supervisor
had given him permission to enter the storage yard, or that the
instruction from his supervisor required him
to enter the yard.
[7]
[11]
When the employee testified that on receiving the supervisor’s
instruction to move a vacant car into the bay, he
first looked for
the car in the parking area. Thus, on the employee’s own
version, the supervisor was not aware that his
instruction had
required the employee to enter the storage yard.
[12]
During the
cross-examination of Mane
[8]
the
following exchange occurred:
“
Interpreter:
Did you question him?
Mane:
Yes.
Interpreter:
What was the answer?
Mane:
His answer was, was we took a commission (this referred to
permission
[9]
)
from the supervisor which wasn’t right. I was having a
supervisor next to me. There wasn’t any commission (permission)
taken. Anything.
”
[13]
As to the reason why the employee entered the storage yard, there
were at least two different versions from the employee:
13.1
The
disciplinary hearing minutes recorded that the
employee
went to the storage yard to look for colleagues
- to assist him to move a vehicle into his vacant bay.
[10]
(Version 1) The status of the minutes, at arbitration, was unclear.
However, during the hearing, the representatives of the third
respondent referred me to paras 15 – 17 of the minutes. These
paragraphs indicate that the employee’s version was that
he
went to the storage yard to find colleagues to assist him to move the
car.
13.2
The
employee testified
[11]
that he
entered the storage yard
to
retrieve the car
.
(Version 2).
[14]
The manager
testified that he met the employee in the storage yard.
[12]
On the other hand, the employee testified that he met the manager in
the “workshop” where
he
went to look for petrol
.
[13]
The employer understood this testimony to mean that the employee went
to the storage yard to look for petrol, which would be a
third
version.
Grounds of review
[15]
In
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[14]
the Constitutional Court held
that
because
arbitrations
under the auspices of the CCMA and Bargaining
Councils
constitute
administrative action, our Constitution requires that such action
must be lawful, reasonable, and procedurally fair.
These requirements
are in addition to the grounds set out in
section 145(2)
of the
Labour Relations Act No. 66 of 1995
as amended (hereafter the
“LRA”).
[15]
[16]
The Constitutional Court stated that an
award of the CCMA or Bargaining Council is susceptible to review if
the outcome is so unreasonable
that no reasonable decision maker
could reach it, on all the material before him or her.
[17]
In
Commercial
Workers Union of SA v Tao Ying Metal Industries & others
[16]
(hereafter “
Tao
Ying
”)
the majority quoted, with approval, from para 267 of
Sidumo
stating that:
“
It
is by now axiomatic that a commissioner is required to apply his or
her mind to the issues properly before him or her. Failure
to do so
may result in the ensuing award being reviewed and set aside.
Recently, in Sidumo, the matter was put thus:
'It
is plain from these constitutional and statutory provisions that CCMA
arbitration proceedings should be conducted in a fair
manner. The
parties to a CCMA arbitration must be afforded a fair trial. Parties
to the CCMA arbitrations have a right to have
their cases fully and
fairly determined.
Fairness in
the conduct of the proceedings requires a commissioner to apply his
or her mind to the issues that are material to the
determination of
the dispute.
One of the duties
of a commissioner in conducting an arbitration is to determine the
material facts and then to apply the provisions
of the LRA to those
facts in answering the question whether the dismissal was for a fair
reason.
In my judgment, where a
commissioner fails to apply his or her mind to a matter which is
material to the determination of the fairness
of the sanction, it can
hardly be said that there was a fair trial of issues
.”
(Own emphasis)
[18]
Thus,
following
Tao
Ying
the failure of an arbitrator to apply his or her
mind
to
the material facts, or failure to apply the law to the material
facts, could lead to a review on the basis that there was a gross
irregularity in the proceedings and thus no fair trial of the
issues.
[17]
[19]
In
Genesis
Medical Scheme v Registrar of Medical Schemes and another
[18]
the Constitutional Court stated at para [21]: “By explicitly
affording the right to just administrative action, the Constitution
bestows on courts the
power
to review every error of law, provided of course it is material
.”
(Own emphasis)
[20]
Providing further valuable insights on the test on review of
CCMA and Bargaining Council arbitration awards, the Labour Appeal
Court
(hereafter the “LAC”) held that:
20.1
An arbitrator’s reliance on irrelevant factors, or
ignoring of material relevant factors, must be assessed to determine
whether
the wrong enquiry was engaged in, the enquiry was conducted
in an improper manner, or the error led to an unreasonable result.
20.2
A
material error may, and usually will, lead to an unreasonable result
or the denial of a fair trial of the issues.
[19]
20.3
The
reasonableness
of the award must be assessed in relation to all the evidence
presented.
[20]
20.4
Aside
from the reasonableness test, the irregularities contemplated by
section 145(2) may also sustain a review application.
[21]
[21]
In
Reinhardt
Transport Group (Pty) Ltd v National Bargaining Council for the Road
Freight & Logistics Industry & others
[22]
the LAC held that an arbitrator must take into account all the
relevant circumstances including the
importance
of
the rule that had been breached, the reason why the employer
decided to impose the sanction of dismissal; and the harm
or
potential harm which may be caused by the employee’s conduct.
Application of the law
to the facts
[22]
Applying the established legal principles to the facts of this
matter, I find that the award is so unreasonable that
no decision
maker could have arrived at it. The commissioner did not apply his
mind to the material issues set out below. He committed
several gross
mistakes of fact and law, any of which would have rendered the
outcome unreasonable:
22.1
The
commissioner failed to consider that it was common cause that the
supervisor did not give the employee permission to enter the
storage
yard.
[23]
There was no
indication from the evidence that the supervisor was aware that his
instruction would require the employee to enter
the storage yard. In
fact, the evidence suggested the contrary.
22.2 The
commissioner failed to appreciate that there was no reason for the
employer to call the supervisor to testify when
the employee admitted
that he had entered the storage yard without permission from the
supervisor.
22.3 The
commissioner failed to recognize the importance of the rule, and the
reason why the employer imposed the sanction
of dismissal. The
employer’s uncontradicted evidence was that pilfering was
affecting the viability of the business. In the
circumstances, the
employer was entitled to impose strict rules as to who gets to enter
the storage yard and how this should happen.
This much is clear from
para 19 of the LAC’s judgment in
Reinhardt
Transport Group
. Further, given that
the employee did not contest the existence of the rule, or its
reasonableness, it was irregular for the commissioner
to do so.
22.4
The
commissioner accepted the version of the employee that he had entered
the storage yard to execute the instruction from his supervisor
when
this was hearsay evidence.
[24]
The commissioner should have considered whether this evidence should
be admitted in accordance with the Law of Evidence Amendment
Act
(hereafter “LEAA”).
[25]
It is trite that the failure to apply the rules of evidence, in
relation to the material issues, renders the outcome unreasonable.
22.5
Section 3
of the LEAA provides that hearsay evidence is inadmissible unless
admitted in the interests of justice - taking into consideration
the
factors in section 3(1)(c): nature of the proceedings, the nature of
the evidence, the purpose for which the evidence is tendered,
the
probative value of the evidence, the reason why the evidence is not
given by the person upon whose credibility the probative
value it
depends, prejudice to any party and any other factor which should in
the opinion of the court be taken into account. The
factors in
section 3(1)(c) must be considered cumulatively.
[26]
None of the factors are individually decisive.
22.6
In
Exarro
Coal (Pty) Ltd v Chipana and others
[27]
the LAC warned that section 138 of the LRA does not imply that the
commissioner may arbitrarily receive or exclude hearsay evidence.
Importantly, at para 19, the LAC states that hearsay evidence which
is not admitted in terms of section 3(1) of LEAA is not evidence
at
all.
Costs
[23]
Both parties sought costs. In labour disputes, costs do not follow as
a matter of course. Here, both parties engaged
in the litigation to
defend their rights. The opposition by the third respondent was not
unreasonable.
Conclusion
[24]
In the result, the review application is granted,
and an order made in terms of prayers 1, 2 and 3 of the amended
notice of motion
dated 5 October 2021. The award of the second
respondent is set aside, the first respondent is directed to enrol
the dismissal
dispute for hearing before a commissioner other than
the second respondent. There is no order as to costs.
R Daniels
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv Sadik
Instructed
by:
ODBB Attorneys
For the
Respondent:
Mr Mphatlalazana
Mphatlalazana
Attorneys
[1]
Transcript
p59 lines 3 – 10
[2]
Transcript
p57 line 7 – p58 line 12
[3]
Transcript
p57 lines 7 - 11
[4]
Transcript
p71 lines 14 – 20
[5]
Transcript
p69 lines 11 – 16
[6]
Transcript
p51 lines 10 – 12
[7]
Transcript
p60 line 12 – p61 line 17
[8]
Transcript
p61 lines 1 – 15
[9]
During
the hearing, the parties’ representatives agreed that the
transcript was incorrect and the word “commission”
should be “permission”.
[10]
Documents bundle, p26
[11]
Transcript p72 lines 1 – 8
[12]
Transcript p60 lines 20 - 23
[13]
Transcript
p65 lines 12 – 13
[14]
(2007)
28 ILJ 2405 (CC)
at
para 110
[15]
Duncanmec (Pty) Ltd v Gaylard NO & others
(2018) 39 ILJ 2633 (CC)
at
para 40
[16]
(2008) 29 ILJ 2461 (CC)
at
para 76
[17]
A
Myburgh “
The Correctness Standard of Review” (2023) 44 ILJ 724
at
731.
[18]
2017 (9) BCLR 1164 (CC) at para 21
[19]
Head of
Department of Education v Mofokeng & others
(2015)
36 ILJ 2802 (LAC) at paras 30 and 31
[20]
Masscash
(Pty) Ltd t/a Jumbo Cash & Carry v Mtsotsoyi & others
(2023) 44 ILJ 162 (LAC) at para 26
[21]
See
Baur
Research CC v CCMA & others
(2023) 44 ILJ 172 (LAC) at paras 19 and 20 the court stated that
where a party is deprived of a fair hearing such as where the
arbitrator failed to act impartially, or where the arbitrator
improperly denied legal representation, this would constitute a
reviewable defect. In such instances, the arbitrator commits
misconduct in relation to his or her duties or commits a gross
irregularity in the conduct of the proceedings.
[22]
(2023)
44 ILJ 172 (LAC) at para 19
[23]
See
fn. 1
[24]
Transcript
p68 lines 19 – 15
[25]
No
45 of 1988
[26]
See
S v
Molimi
[2008] ZACC 2
;
2008 (3) SA 608
(CC) at para-35
[27]
[2019]
10 BLLR 991
(LAC)