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[2024] ZALCJHB 132
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Bulk Machine Hire v Commission for Conciliation Mediation and Arbitration and Others (JR600/18) [2024] ZALCJHB 132 (26 February 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR600/18
In
the matter between:
BULK
MACHINE
HIRE
Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
MGAELE ALFRED
MASHIGOANA
N.O
Second Respondent
AMCU
obo AMOS
MABESA
Third Respondent
Heard: 11
January 2024
Delivered:
26 February 2024
This
judgment was handed down electronically by consent of the parties’
representatives by circulation to them via email.
The date for
hand-down is deemed to be 26 February 2024.
JUDGMENT
STEENKAMP,
AJ
Introduction
[1]
The
Second Respondent issued an arbitration award dated 15 February 2018
in terms of which it was found that the dismissal of the
individual
employee, Mr Amos Mabesa, was both procedurally and substantively
unfair. The Second Respondent ordered that the employee
be
reinstated, with back-pay totalling R 25 200.00, to be paid
by no later than 1 March 2018. He also ruled that failure
to make
payment as aforesaid would attract interest from date of the award
until date of payment at the prevailing interest rate
applicable to
judgment debt in terms of section 143(3) of the Labour Relations
Act
[1]
(LRA).
[2]
The
employee was ordered to report for duty on 1 March 2018.
[3]
The
Applicant received the award via facsimile from the First Respondent
on 19 February 2018, and thus only became aware of the
award on the
aforementioned date.
[4]
The
Applicant launched this application to review and set aside the award
in terms of section 145, alternatively, section 158(1)(g)
of the LRA
on 6 April 2018.
[5]
This
application was launched 4 days out of time, and the Applicant
neglected to include a prayer for condonation in its notice
of motion
for review. At the date of hearing, the matter was however ripe for
hearing, and the parties were desirous for the matter
to proceed on
the merits. In order to facilitate the expeditious resolution of the
dispute between the parties, particularly in
view of the fact that
the dismissal of the employee dates back to November 2017, the
Applicant was afforded an opportunity to apply
for condonation on the
date of hearing, which it did by way of a notice of motion. For the
sake of completeness, sufficient averments
were made in the founding
affidavit to sustain the application for condonation. The Third
Respondent did not oppose the application
for condonation, the period
of delay was minimal, and I consequently granted condonation for the
lateness of the review application.
[6]
A
further issue arose as a result of the record of proceedings. When
the First Respondent filed the record of proceedings with the
Registrar’s office, it only delivered the documentary record of
the arbitration. It later became apparent that the audio
recordings
of the arbitration proceedings were lost.
[7]
The
Applicant did not comply with the prescripts of the Practice
Manual
[2]
insofar as this issue
is concerned. Instead, it launched an application to compel delivery
of the audio record, whereafter the
matter was set down for
reconstruction, which took place on 19 October 2018. The
transcription of the reconstruction was completed
on or about 7
December 2018, and the transcript was filed on or about 14 December
2018. I raised this issue with Mr Berry who appeared
on behalf of the
Applicant, and he made submissions regarding enquiries that were made
with the Second Respondent. These were submissions
from the bar which
do not form part of the pleadings before the Court. It was noted from
the contents of the Court file that from
delivery of the Rule 7A(3)
note
[3]
, the 60-day period
within which to file the record as contemplated in paragraph 11.2.2
of the Practice Manual lapsed on or about
11 July 2018. The
transcript was accordingly filed some five months late, and the
provisions of paragraph 11.2.3 were triggered.
[8]
All
of this being said, the representatives of the parties both conveyed
the parties’ desire to deal with the merits of the
review, and
Mr Cook in particular, recorded that the Third Respondent had no
objection to the matter being dealt with on the merits.
Had I
strictly applied the provisions of the Practice Manual, I would have
been constrained to find that the review application
was deemed to
have been withdrawn. The Applicant would then have needed to apply
for reinstatement of the review, which application
would no doubt
have perpetuated a further delay in the finalisation of this dispute.
I consequently took a pragmatic approach to
the matter and proceeded
to hear the review application on the merits thereof, as any further
delay in the finalisation of the
matter would only compound the
period of delay, which is not acceptable given the fact that this
dispute arose towards the end
of 2017.
[9]
Even
if I am wrong on the score of deemed withdrawal, I made the
determination on the basis of the purpose of the LRA as contemplated
in section 1(a) read with 1(d)(iv). Furthermore, all other
pleadings were filed within the one-year period provided for in
paragraph 11.2.7 of the Practice Manual. In my view, whilst the
prescripts of the Practice Manual are peremptory, it ought not
to be
construed to give rise to technicalities which unduly delay matters
that are in all other respects ripe for hearing, and
both parties are
before Court.
[10]
This
review application was indeed ripe for hearing and was heard as an
opposed application.
Background
facts
[11]
The
Third Respondent commenced employment with the Applicant as an ADT
Operator on 1 November 2016.
[12]
On
28 October 2017, a meeting took place during which the Applicant’s
intention to implement a 12-hour shift system was discussed.
The
individual employee, Mr Mabesa, was in attendance.
[13]
Mr
Mabesa was unhappy with the new shift system, and he “
stormed
”
out of the meeting, during which time, he allegedly assaulted his
superior, Mr Martin Tredoux by pushing him (out of the
way). From the
reconstructed transcript, it appears that there was a dispute between
the parties as to whether a particular witness
testified that Mr
Tredoux was “
pushed
”
by the Applicant, or “
pushed
out of the way
”.
Whilst this may seem like semantics, it is important to the extent
that one of these versions would support either the
version that Mr
Tredoux was blocking the doorway, or whether he was standing next to
the door. The former version supports the
Third Respondent’s
case, whilst the latter supports the version advanced on behalf of
the Applicant.
[14]
Still,
on 28 October 2017, the Applicant suspended Mr Mabesa and charged him
with “
Misconduct
6.6 You assaulted your superior (Martin) by pushing him while going
outside from toolbox room and you threw a pen to
Charl
”.
The disciplinary hearing was scheduled for 31 October 2017.
[15]
The
hearing could not proceed on 31 October 2017 due to extraneous
factors and was rescheduled for 2 November 2017.
[16]
Mr
Patrick Masilela chaired the disciplinary hearing and found Mr Mabesa
guilty, and recommended that Mr Mabesa be dismissed effective
6
November 2017.
[17]
AMCU
referred an unfair dismissal dispute on behalf of Mr Mabesa, and
after unsuccessful conciliation, the dispute was referred
for
arbitration.
[18]
The
arbitration took place on 5 February 2018.
[19]
On
15 February 2018, the Second Respondent issued an arbitration award
wherein he found that the dismissal of Mr Mabesa was procedurally
and
substantively unfair, and he ordered the Applicant to reinstate Mr
Mabesa as of 1 March 2018. The arbitration award is the
subject of
this review application.
Grounds
of review
[20]
The
Applicant applied to this Court to review and set aside the
arbitration award on the following grounds:
20.1.
The
Second Respondent placed an excessive onus on the Applicant by
over-emphasizing an alleged contradiction in evidence;
20.2.
The
Second Respondent demonstrated bias by “
interrupting
the valid questions posed by the Applicant’s representative to
in fact prove that the Applicant admitted to his
misconduct
”;
[4]
20.3.
The
Second Respondent failed to apply his mind to the matter and in fact
reached a conclusion that “
no
other commissioner would have reasonably reached
”;
20.4.
The
Second Respondent failed to “
consider
that it was not disputed that Martin was simply standing in close
proximity to the door and not in the doorway as subjectively
found
”;
20.5.
The
Second Respondent made an “
error
in law by accepting the subjective version presented by the Third
Respondent, as perpetrator, and ignoring the evidence of
the victim,
Martin
”;
and
20.6.
The
Second Respondent failed to consider the evidence “
addressed
during cross-examination of the Third Respondent’s witness,
confirming that the door opened from right to left away
from where
Martin was standing and not towards Martin, as initially claimed by
the Third Respondent. Such evidence demonstrates
both that the Third
Respondent was dishonest when providing his testimony under oath, and
secondly demonstrates the particular
circumstances strongly
confirming the Applicant’s version
”.
[21]
The
Applicant supplemented the grounds of review in its affidavit in
terms of Rule 7A(8)(a). Without repeating the content of the
affidavit, the nub of the supplemented grounds was essentially that
the Second Respondent failed to apply his mind to the evidence;
he
placed unnecessary emphasis on technical and/or irrelevant issues and
he erred in his determination of probabilities on the
evidence.
[22]
Finally,
the Applicant takes issue with the manner in which the reconstruction
proceedings took place, and specifically, with the
Second
Respondent’s conduct during the reconstruction proceedings. I
will deal with this specific ground of review separately
hereunder.
Legal
framework
[23]
It
is nearly 17 years since the Apex Court determined that the test on
review in this Court is whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
[5]
[24]
In
Herholdt
v Nedbank
Ltd
(
Congress
of South African Trade Unions as Amicus Curiae
)
[6]
,
it
was made clear that:
‘
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 in 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.’
[25]
The
Labour Appeal Court (LAC) in
Head
of the Department of Education v Mofokeng and others
[7]
(
Mofokeng
)
stated:
‘
[31]
The
determination of whether a decision is unreasonable in its result is
an exercise inherently dependant on variable considerations
and
circumstantial factors. A finding of unreasonableness usually implies
that some other ground is present, either latently or
comprising
manifest unlawfulness. Accordingly, the process of judicial review on
grounds of unreasonableness often entails examination
of
inter-related questions of rationality, lawfulness and
proportionality, pertaining to the purpose, basis, reasoning or
effect
of the decision, corresponding to the scrutiny envisioned in
the distinctive review grounds developed casuistically at common law,
now codified and mostly specified in section 6 of the Promotion of
Administrative Justice Act (“PAJA”); such as failing
to
apply the mind, taking into account irrelevant considerations,
ignoring relevant considerations, acting for an ulterior purpose,
in
bad faith, arbitrarily or capriciously etc. The court must
nonetheless still consider whether, apart from the flawed reasons
of
or any irregularity by the arbitrator, the result could be reasonably
reached in light of the issues and the evidence. Moreover,
judges of
the Labour Court should keep in mind that it is not only the
reasonableness of the outcome which is subject to scrutiny.
As the
SCA held in Herholdt, the arbitrator must not misconceive the inquiry
or undertake the inquiry in a misconceived manner.
There must be a
fair trial of the issues.
[32] However,
sight may not be lost of the intention of the legislature to restrict
the scope of review when
it enacted section 145 of the LRA, confining
review to “defects” as defined in section 145(2) being
misconduct, gross
irregularity, exceeding powers and improperly
obtaining the award. Review is not permissible on the same grounds
that apply under
PAJA. Mere errors of fact or law may not be enough
to vitiate the award. Something more is required. To repeat: flaws in
the reasoning
of the arbitrator, evidenced in the failure to apply
the mind, reliance on irrelevant considerations or the ignoring of
material
factors etc. must be assessed with the purpose of
establishing whether the arbitrator has undertaken the wrong enquiry,
undertaken
the enquiry in the wrong manner or arrived at an
unreasonable result. Lapses in lawfulness, latent or patent
irregularities and
instances of dialectical unreasonableness should
be of such an order (singularly or cumulatively) as to result in a
misconceived
inquiry or a decision which no reasonable decision-maker
could reach on all the material that was before him or her.
[33]
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will
ex
hypothesi
be
material to the determination of the dispute. A material error of
this order would point to at least a prima facie unreasonable
result.
The reviewing judge must then have regard to the general nature of
the decision in issue; the range of relevant factors
informing the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable
equilibrium has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the
arbitrator, a wrong answer
will not necessarily be unreasonable. By the same token, an
irregularity or error material to the determination
of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the issues, with the
result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted from the correct
path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.’
[8]
[26]
On
the score of applying the rules of evidence, Fourie AJ in
Solidarity
obo van Zyl v KPMG Services (Pty) Ltd and others
[9]
stated the following:
‘
While
arbitrators should always aspire to meet the exacting standard set by
the Supreme Court of Appeal in
Stellenbosch
Farmers’ Winery
for the proper
assessment of conflicting versions by a finder of fact, an
arbitration award that does not live up to this standard
will not
automatically be subject to review. Arbitrators are empowered to deal
with the dispute with a minimum of legal formalities,
their decisions
are immune from appeal, and the legislature has set a high bar for
reviewing arbitration awards. Errors committed
by an arbitrator in
the assessment thereof will not necessarily vitiate an award.’
[27]
Fourie
AJ further stated that:
‘…
[it]
is not strictly necessary for an arbitrator to find that a witness
was not credible, in order to find that his version was
not
probable.’
[10]
[28]
In
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[11]
(
Sidumo
),
Navsa AJ (for the majority) stated that an arbitrator ought to
impartially determine whether a dismissal was fair or not, taking
into account the totality of relevant circumstances, and deference to
the decision of the employer is not required. Simply put,
a
commissioner is not required to rubberstamp the decision of the
employer but should make a determination on the fairness of sanction
independently within the confines of the factual matrix.
[29]
Essentially,
an arbitrator is obliged to consider all admissible evidence before
him or her, and to assess the probabilities thereof
in coming to a
conclusion on the issue of guilt. A finding by an arbitrator which is
at odds with a full assessment of the evidence
and a correct answer
to the probabilities thereof, will more often than not be found to be
unreasonable. This is particularly applicable
in determining whether
or not an employee was guilty of the misconduct he or she was charged
with.
Analysis
[30]
Insofar
as applications for review of arbitration awards by this Court are
concerned, specifically taking into account the
Sidumo
test (reasonability) and the long line of jurisprudence that followed
Sidumo
,
the “
formula
”
for determining reasonableness as set out in
Mofokeng
is useful to determine whether or not an arbitration award passes
muster on reasonableness. The authors Myburgh and Bosch put it
in the
following terms:
‘…
.one
is now required to identify what went wrong; whether the result would
have been different but for this; and, if so, whether
the objectively
wrong decision is capable of reasonable justification.’
[12]
[31]
In
rudimentary terms, that is the scope of the enquiry by this Court on
review.
[32]
The
facts of this case are fairly straightforward and are, to a large
extent, common cause. The controversy between the parties
lies in
whether or not Mr Mabesa pushed Mr Tredoux when he was exiting the
meeting room, and if so, whether that action constituted
an assault.
[33]
The
Second Respondent was confronted with mutually destructive versions
on this score. The witnesses for the Applicant testified
that Mr
Tredoux was grabbed and pushed by Mr Mabesa, whilst the witnesses for
Mr Mabesa (including himself) proffered that the
only contact between
Mr Mabesa and Mr Tredoux was Mr Mabesa touching Mr Tredoux’s
hand in order to open the door and leave
the room, as Mr Tredoux was
holding the door handle.
[34]
In
amplification of the two versions, it was testified on behalf of the
Applicant that the door of the meeting room was open, the
door did
not have a handle, and Mr Tredoux was standing next to the door and
not blocking it. On behalf of the employee, it was
testified that the
door was closed, the door did have a handle, and Mr Tredoux had his
hand on the door handle. That is, on the
employee’s version,
where and why the physical contact took place, i.e. for him to be
able to leave the room, he had to make
contact with Mr Tredoux’s
hand on the door handle.
[35]
The
entire case turns on which of the two versions is the most probable.
If it is the version of the Applicant, then it may very
well be that
the actions of the employee constituted an assault. Conversely, if
the events transpired as advanced by and on behalf
of the employee,
then his actions did not constitute an assault.
[36]
With
regard to the resolution of factual disputes, the Supreme Court of
Appeal in
Stellenbosch
Farmers’ Winery Group Ltd and another v Martell et Cie and
others
[13]
(
Stellenbosch
Farmers’ Winery
)
said the following:
‘
On
the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So too on a number of peripheral
areas
of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual
disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court must
make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to
(a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity of the
witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness’s
candour and demeanour
in the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv)
external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements
or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance
compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness’s reliability will
depend, apart from the factors
mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities
he had to experience or observe
the event in question and (ii) the
quality, integrity and independence of his recall thereof. As to (c),
this necessitates an analysis
and evaluation of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of
its assessment of (a), (b) and (c) the court
will then, as a final step, determine whether the party burdened with
the onus of
proof has succeeded in discharging it. The hard case,
which will doubtless be the rare one, occurs when a court’s
credibility
findings compel it in one direction and its evaluation of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors are
equipoised probabilities prevail.’
[37]
In
First
Garment Rental (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and others
[14]
(
First
Garment Rental
),
the LAC (with reference to
Stellenbosch
Farmers’ Winery
)
put it much more simplistically. The evidence tendered by the parties
must be weighed, the probabilities thereof must be assessed,
and if
necessary, the credibility of the witnesses may be taken into
account.
[38]
The
Second Respondent did not make any outright credibility finding.
However, it is not required that such an outright finding be
made in
order to find that the evidence is improbable.
[15]
[39]
This
is essentially what the Second Respondent did in his analysis of the
evidence. He found the evidence of Mr Tredoux to be improbable.
This
was mainly due to the fact that Mr Nkomo gave evidence which
contradicted the evidence of Mr Tredoux
[16]
and corroborated the version of Mr Bhuda in that the door was closed,
and the door had a handle.
[40]
Having
established that there was corroboration between Mr Nkomo and Mr
Bhuda, even if they did not agree on whether or not Mr Tredoux
was
pushed, the version of the employee is far more probable than that of
the employer. If the door was shut, it fits in neatly
with the
narrative of the employee in that he reached for the door handle to
open the door, and that he did not assault Mr Tredoux.
[41]
A
brief summary and analysis of the evidence is necessary in order to
determine this issue.
[42]
The
Second Respondent’s manuscript minutes of the arbitration
indicate that Mr Tredoux testified that Mr Mabesa “
physically
pushed me out of the way
”
and “
he
grabbed me and pushed me out of the way
”.
[43]
The
reconstructed record reflects that the Second Respondent repeated
this evidence during the reconstruction process.
[44]
The
Applicant’s representative took issue with the words “
out
of the way
”
and stated that according to his notes, Mr Tredoux testified that he
was “
pushed
”
and not “
pushed
out of the way
”.
[45]
The
Second Respondent requested Mr Mabesa’s representative to check
his notes, ostensibly to resolve the impasse, and Mr Tsotetsi
responded that “
Martin’s
evidence say [sic] that he was pushing [sic] out of the way because
he was closer to the door
”.
[46]
In
the outcome report of the disciplinary hearing, Mr Masilela, who
chaired the hearing, recorded that: “…
Amos
Mabesa stormed out of the meeting swearing that he will not be part
of the 12-hour shift roster and pushed the site manager,
Martin
Tredoux aside…
”
[47]
On
the other hand, the version of Mr Mabesa and Mr Bhuda was that Mr
Tredoux’s hand was touched when Mr Mabesa reached for
the door
handle, which was being held by Mr Tredoux.
[48]
If
all of these versions, together with the words used by Mr Masilela in
the outcome report are considered, the evidence suggests
that when Mr
Mabesa attempted to leave the meeting room, Mr Tredoux was in the
way. That is why the words “
pushed
aside
”
or “
out
of the way
”
were used. Furthermore, during the reconstruction proceedings, it was
the recollection of both Mr Tsotsetsi and the Second
Respondent that
the words “
out
of the way
”
were used by Mr Tredoux during his evidence. This accords with what
is recorded in the award, and it is further consistent
with the words
used by the Applicant’s own witness, Mr Masilela, when he
chaired the disciplinary hearing.
[49]
On
the probabilities, the version captured by the Second Respondent as
aforesaid appears to be correct. In my view, there was no
misdirection by the Second Respondent in this regard.
[50]
The
Second Respondent would furthermore have been best placed to assess
the demeanour of the witnesses at arbitration, and he gave
brief
reasons why he preferred the version of Mr Mabesa and his witness, Mr
Bhuda. The Second Respondent found the evidence of
Mr Tredoux
improbable. There is nothing in the record or in the award itself
which suggests that the Second Respondent erred in
this regard. His
conclusions in this regard are neither far-fetched nor unreasonable.
[51]
It
does not appear to me that there was any material misdirection by the
Second Respondent in favouring the version of the employee.
In
First
Garment Rental
,
the LAC said the following:
‘
From
a reading of the arbitrator’s award, it is clear that the
arbitrator was alive to the fact that in dealing with mutually
destructive versions, he had to determine the probabilities of the
parties’ versions… Consequently, after weighing
all the
evidence before him, the arbitrator concluded that the fourth and
fifth respondents’ version was more probable than
that of the
appellant. The fact that the award was not as detailed as the
appellant would have liked does not imply that the arbitrator
did not
apply his mind to the facts before him and that he did not take into
account the credibility of the witnesses. I am of
the view that the
arbitrator correctly found that the probabilities favoured the
version of Mlangeni and Morare and that the appellant’s
complaint in this regard has no basis.’
[17]
[52]
The
nature of the contradictions between the respective versions of the
parties are of such nature, that only one version could,
reasonably
assessed, be true. The Second Respondent accepted the version of the
employee, and in doing so, he acted reasonably
and justifiably.
[53]
The
Second Respondent was alive to the fact that he was required to
determine the fairness of Mr Mabesa’s dismissal by taking
into
account the totality of the circumstances including the reasons why
the Applicant imposed the sanction of dismissal. He also
indicated
that he was aware that he also had to consider the employee’s
basis for challenging his dismissal, the harm caused
by the
employee’s alleged conduct, the effect of dismissal on the
employee and his service record as well as consistent application
of
the sanction.
[18]
[54]
The
corollary is that if the employee is not guilty of the misconduct he
was charged with, then dismissal cannot be justified as
a fair
sanction.
The
reconstruction process
[55]
Insofar
as the Applicant takes issue with the reconstruction process
undertaken by the Second Respondent, any defect in those proceedings
could have been addressed in accordance with Section 158(1)(g) of the
LRA. That being said, this Court is not requested to set
aside the
reconstruction process. Even if it was, a reading of the record does
not paint a picture of an overbearing and biased
arbitrator
determined to undermine the Applicant’s representative, as
advanced by the Applicant’s representative before
this Court.
[56]
In
the final analysis, this Court is required to determine whether or
not the award should be reviewed and set aside, and either
remitted
to the First Respondent for a hearing
de
novo
before a commissioner other than the Second Respondent or that the
award be substituted with a “
result
in favour of
”
the Applicant.
[57]
This
Court is bound by the manner in which a party elects to formulate the
relief sought.
In
Real Time Investments 158 t/a Civil Works v Commission for
Conciliation, Mediation & Arbitration and Others
[19]
the LAC said the following:
‘
It
is trite that the notice of motion or application and the founding
affidavit in application proceedings constitute both the pleading
and
the evidence. They serve to define the issues which are to be
adjudicated upon by the court. An applicant is to not only state
the
relief sought, but to make out a case for such relief. In this
instance, Mr Rantsieng specifically did not ask for reinstatement
in
those founding documents, and thus did not raise it as an issue that
was to be adjudicated upon by the court. A pleading is
intended to
enable the other party to fairly and reasonably know the case it is
called upon to meet.’
[58]
In
my view, the reconstructed record together with the documentary
record and the award itself provides sufficient detail to enable
this
Court to make a determination. The matter is neither so complex nor
nuanced that reasonable and correct deductions cannot
be made from
the available record. Despite much lament by the Applicant regarding
the reconstruction process, this Court is not
called upon to set
aside the reconstruction proceedings, no order in this regard can be
made.
[59]
Finally,
it is unfortunately necessary to make a remark about the state of the
court file. The transcript of the reconstructed record
filed
contained manuscript notes as well as highlighted words and/or
paragraphs. This is entirely improper. I raised this issue
with the
Applicant’s representative at the hearing of the matter, and he
did not have a cogent explanation for this. A clean
copy of the
transcript was also not available at the hearing. It is incumbent
upon parties to ensure that the documents in the
Court file are in a
proper state, and it certainly should not be marked up in any way.
[60]
Insofar
as the record is concerned, pages 23 – 25 thereof, which
document purports to be the minutes of the disciplinary hearing
is
entirely illegible, and it is consequently of no assistance to the
Court. Parties should take the necessary care when preparing
the
Court files.
Conclusion
[61]
The
Applicant has not demonstrated sufficient grounds for this Court to
interfere with the award.
[62]
The
award falls within a band of reasonableness, the outcome is
reasonable, and it does not constitute a decision that no reasonable
decision-maker could reach. The application for review thus stands to
be dismissed.
[63]
This
review application is nearly seven years in the making. It is
unfortunate that labour disputes take this long to be resolved
and it
was certainly not the legislator’s intention to have any labour
dispute pending for such an inordinate amount of time.
The Applicant
is not fully to blame for the delay, as the reconstruction of the
record took some time. However, had the prescripts
of the Practice
Manual been followed by the Applicant once it became apparent that
the audio record was lost, this matter could
have been remitted for
arbitration
de
novo
,
which would probably have been set down for a new hearing long prior
to the hearing being set down in this Court. The Practice
Manual has
been in existence for approximately 11 years, yet parties still pay
it no mind.
[64]
In
Matsha
and
others v Public Health and Social Development Sectoral Bargaining
Council and others
,
Snyman AJ said the following regarding the Practice Manual:
‘
The
Practice Manual is not just some sort of guideline which litigating
parties may or may not comply with at their leisure, but
has binding
force, just like the Labour Court Rules.’
[20]
[65]
Compliance
with the Practice Manual is not optional, and this Court has on many
occasions expressed the need for parties to adhere
to its
prescripts.
[21]
There is good
reason for this. The Practice Manual is a set of additional rubrics
of practice and procedure in this Court, in amplification
of the
Rules, and it instructs practitioners on how litigation in this Court
ought to be undertaken in order to ensure that the
Court functions
efficiently, and that the purpose of the LRA is advanced, being the
expeditious resolution of labour disputes.
[66]
Of
import
in
casu
, is
the fact that there is a specific mechanism included in the Practice
Manual to deal with lost records. One simply has to approach
the
Judge President and seek a directive regarding the missing record.
The Judge President is empowered to remit the matter back
to the CCMA
for a hearing
de
novo
. Had
the Applicant followed the prescripts of paragraph 11.2.4 of the
Practice Manual, the matter could have been dispensed with
expeditiously and not only seven years down the road.
[67]
Any
prejudice suffered by the parties due to the protracted time that
this matter took to reach finality could have been avoided,
had the
Practice Manual been complied with.
[68]
Inasmuch
as the Applicant prayed for a cost order against, not only the Third
Respondent, but also the Second Respondent, there
is no good reason
to depart from the
Zungu
[22]
principles, and no cost order in the current matter is justified.
[69]
In
the premises, I make the following order:
Order
1.
The
review application is dismissed;
2.
There
is no order as to costs.
L
Steenkamp
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr D Berry
Instructed
by:
Guardian Employers Organisation
For
the Respondent:
Advocate A L Cook
Instructed
by:
LOA Incorporated
[1]
Act
66 of 1995, as amended.
[2]
Practice
Manual of the Labour Court of South Africa, effective 2 April 2013.
[3]
GN
1665 of 1996: Rules for the Conduct of Proceedings in the Labour
Court.
[4]
This was during the reconstruction proceedings
[5]
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2007]
ZACC 22
; (2007) 28 ILJ 2405 (CC) at para 110.
[6]
[2013]
ZASCA 97
;
2013 (6) SA 224
(SCA) at para 25.
[7]
[2014]
ZALAC 50
; (2015) 36 ILJ 2802 (LAC) at para 32.
[8]
Ibid
at paras 31 - 33
[9]
[2013]
ZALCJHB 251; (2014) 35 ILJ 1656 (LC) (
Solidarity
)
at paras 16 - 17
[10]
Ibid
at para 19.
[11]
Ibid
at para 78 – 79.
[12]
A
Myburgh, C Bosch, ‘
Reviews
in the Labour Courts’
,
LexisNexis at p 39.
[13]
[2002]
ZASCA 98
;
2003
(1) SA 11
(SCA) at para 5.
[14]
[2015]
ZALAC 38
; [
2015]
11 BLLR 1094
(LAC) at para 11 and footnote 2.
[15]
Solidarity
supra
at
para 19.
[16]
This was specifically with regard to whether or not the door was
open, whether the door had a handle, and where Mr Tredoux was
situated. See in this regard paras 29 – 32 of the Award.
[17]
Ibid
at para 14
[18]
Paragraph 26 of the award
[19]
[2022]
ZALAC 7
; (2022) 43 ILJ 1642 (LAC) at para 25.
[20]
[2019]
ZALCJHB 128; (2019) 40 ILJ 2565 (LC) at para 22.
[21]
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
(2014) 35 ILJ 1672 (LC) at para 11.
[22]
Zungu
v Premier of the Province of KwaZulu-Natal and Others
(2018)
39 ILJ 523 (CC) at paras 23 – 26.