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[2024] ZALCJHB 153
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Mayisela v Commission for Conciliation Mediation and Arbitration and Others (JR 791/2021) [2024] ZALCJHB 153 (27 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 791/2021
In
the matter between:
NKOSINATHI
FREEDOM
MAYISELA
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
COMFORT
MOKABANE
N.O.
Second
Respondent
GLENCORE
OPERATIONS SOUTH
AFRICA
(PTY) LTD – GOEDGEVONDEN COMPLEX
Third
Respondent
Heard:
20 March 2024
Delivered:
27 March 2024
This
judgment was handed down electronically by consent of the parties’
legal representatives by circulation to them via email.
The date for
hand-down is deemed to be 27 March 2024.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The
Applicant seeks to review and set aside an arbitration award dated 25
April 2021 and issued under case number MPEM3278-20 wherein
the
Second Respondent (arbitrator) found that the Applicant’s
dismissal was fair and his case was dismissed.
[2]
The
Third Respondent (Respondent) opposed the application for review.
The
evidence adduced
[3]
The
Applicant was employed by the Respondent in November 2014 as an
engineering foreman. The Applicant was issued with a notice
to attend
a disciplinary hearing and the charge levelled against him was
“
Failure to keep up set work
standards of KPI, file does not meet required standards and no
submission”.
A disciplinary
hearing was held in May 2020 and after the chairperson of the
disciplinary hearing found the Applicant guilty of
misconduct, he was
dismissed on 26 May 2020. Aggrieved by the outcome, the Applicant
referred an unfair dismissal dispute to the
First Respondent (CCMA).
[4]
An
arbitration award was issued on 25 April 2021 and the arbitrator
found that the Applicant’s dismissal was fair and his
case was
dismissed. The said award is the subject of this review application.
[5]
In
order to assess the arbitrator’s findings and the grounds for
review raised by the Applicant, it is necessary to consider
the
evidence adduced at the arbitration proceedings, as well as the
charge that the Applicant was found guilty of and dismissed
for.
The
Respondent’s case
[6]
The
Respondent’s first witness, Mr Legodi, testified that he is
employed by the Respondent as an engineering superintendent
and he
supervised the Applicant, who was employed as an engineering foreman.
Mr Legodi’s duties include supporting the Applicant
and
providing guidance to him in ensuring that he executed his duties
efficiently. Mr Legodi testified that the Applicant held
a legal
appointment in terms of the Mine Health and Safety Act
[1]
which required him to
inter
alia,
ensure
that his direct reports (artisans) are safe; that a safe working
environment is provided and that the equipment under his
responsibility are maintained and repaired and are safe for use; he
must conduct a planned inspection and a plant task observation
(PTO);
and he must keep a logbook up to date. All these form part of the
Applicant’s key performance indicators (KPI).
[7]
Mr
Legodi explained that there is a KPI file, which is a very important
file, which contains the PTO and indicates whether an employee
is
doing his or her duties in accordance with the applicable processes
and standards and it indicates whether regular inspection
is
conducted in respect of specific areas and equipment to detect
sub-standard conditions for immediate action. It also records
safety
interactions to establish whether safe practices are followed,
hazards are understood and appropriate control measures are
in place.
[8]
Mr
Legodi explained that if the supervisors do not adhere to their
functions in terms of the KPIs, it constitutes serious misconduct
and
a breach in that machine operators are exposed to high risk, taking
into consideration that the environment they work in is
a mining area
which is a very high-risk area.
[9]
The
KPI files must be completed and submitted to Mr Legodi on a monthly
basis. Mr Legodi issued an instruction to the supervisors,
including
the Applicant, on 26 May 2017 and 28 August 2019 that the KPI files,
containing specific documents, must be submitted
to him on the 25
th
of every month.
[10]
Mr
Legodi testified that the Applicant was issued with two previous
warnings regarding the KPI files on 16 April 2019 and 23 September
2019. The Applicant was charged with misconduct in February 2020 and
Mr Legodi explained that his conduct was regarded as very
serious
misconduct in that it involved safety issues. He tried to coach and
counsel the Applicant.
[11]
The
Applicant did not submit his KPI file for December 2019. Mr Legodi
conceded that the 25
th
was Christmas day, but the Applicant went on leave only on 3 January
2020 and he should have submitted his KPI file between 25
December
2019 and 3 January 2020 when he went on leave. He testified that the
Applicant had enough time to submit the KPI files
and the
documentation and data in the file, were to be captured from 1
December 2019, throughout the whole of December 2019.
[12]
The
KPI file was eventually submitted to Mr Legodi on 6 January 2020, by
Mr Coetzee, who was acting in the Applicant’s position
whilst
he was on leave. The KPI file so submitted was “
no
way near”
the required
standard of a KPI file.
[13]
In
cross-examination, Mr Legodi explained that Mr Coetzee was only
acting in the position from 6 January 2020, the Applicant was
responsible for the entire December 2019 period and he was at work
until 3 January 2020. The Applicant had to ensure that all his
safety
data was in the KPI file for December 2019 and that it was submitted
before he went on leave. The Applicant should have
satisfied himself
that his KPI file for December 2019 met the standards when someone
was acting in his position.
[14]
Mr
Legodi testified that he had taken time on numerous occasions to
provide guidance and coaching to the Applicant to make him aware
of
how serious his misconduct was, he was issued with two final written
warnings, which showed leniency on the part of the Respondent
but
despite his efforts, there was no improvement from the Applicant’s
side. He went on leave without submitting a very important
document
and notwithstanding the seriousness of safety issues, the Applicant
never came on board and the trust relationship was
damaged as a
result of his conduct.
[15]
It
is evident from Mr Legodi’s cross-examination that Mr Serogole
for the Applicant took an overly technical approach and
lost sight of
the important aspects of the case by
inter
alia
taking issue with irrelevant or
inconsequential issues or aspects. He further put very lengthy
statements to Mr Legodi, which he
was not afforded an opportunity to
respond to or which simply contained no relevant question.
[16]
Mr
Serogole spent time on the question of whether the charge levelled
against the Applicant related to ‘misconduct’
or ‘poor
work performance’. Mr Legodi made it clear that the charge was
pure misconduct – “
this
is not a performance it’s a misconduct”.
Mr
Serogole persisted with this line of questioning to a point where Mr
Legodi stated that Mr Serogole “
keep
on emphasizing the issue around performance [inaudible] put in a
document that address (sic) a poor performance but I was not
dealing
with a poor performance issue. I was dealing with a serious
misconduct”.
[17]
Mr
Serogole adopted a ridiculous line of questioning when he questioned
Mr Legodi on the question of whether he had received the
KPI file for
December 2019. Mr Legodi conceded that he had received the file from
Mr Coetzee, after he started acting in the Applicant’s
position
in January 2020. Mr Serogole’s approach was that the charge
levelled against the Applicant was misleading as it
related to ‘no
submission’, when in fact Mr Legodi received the file from Mr
Coetzee, who was authorised to act in
the Applicant’s position.
His proposition was that “
what
is important here is that it’s not who submitted the file
whoever if you want to go that way, it’s that [you] did
not
receive the file. You received the file”.
Mr
Legodi insisted that the Applicant had not submitted the file to him
and he explained that he had not received the file from
the
Applicant, but it was put together by someone who was acting in the
position. Mr Serogole’s reaction to Mr Legodi’s
aforesaid
explanation was “
what’s
wrong with that Mr Legodi?”
[18]
Mr
Legodi insisted that it was wrong and constituted serious misconduct
in that the Applicant was supposed to put the information
and data
for the KPI file together from 1 December 2019 and by the time he
went on leave in January 2020, he had to submit it.
By trying to get
information about December 2019 in January to put together a file in
January 2020, he was putting the employer
and various employees at
risk by compromising their safety. Mr Legodi emphasized that from 1
to 25 December 2019 the KPI file had
to contain the required
information, more so where they operate in a high-risk area and he
expected accountability from the Applicant
and to submit the file
with the information before he went on leave. Systems are put in
place to ensure the safety of employees
and in this instance, the
Applicant failed those systems, putting the employer and employees at
risk.
[19]
The
Applicant’s version put in cross-examination was that he had
compiled the December 2019 KPI file and gave it to Mr Coetzee
to hand
it over to Mr Legodi. Mr Legodi disputed this version. He insisted
that the KPI file for December 2019, which was submitted
in January
2020, was compiled by Mr Coetzee. The Applicant did not compile the
said KPI file, nor did he prepare a file to be handed
to Mr Legodi.
Such a version was also not presented during the Applicant’s
internal disciplinary hearing.
[20]
The
Respondent’s second witness was Ms Tladi, the Respondent’s
human resources officer. She confirmed that the Applicant
was issued
with a written warning on 9 May 2019 and a final written warning on
23 September 2019. She also confirmed that the Applicant’s
failure to submit the KPI file was misconduct and not poor work
performance.
[21]
It
is trite that an employer has the right to discipline its employees,
of course in a lawful and fair manner. In fact, the disciplining
of
employees is the duty and the prerogative of the employer and an
employer remains
dominus litis
in
deciding whether an employee is to be charged for misconduct and if
so, what the nature of the charges would be.
[22]
In
the event that an employee is dismissed for reasons related to
misconduct, the employer is bound by the election it has made,
as was
confirmed in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and others
[2]
where
the Labour Appeal Court (LAC) held that:
‘
It
is an elementary principle of not only our labour law in this country
but also of labour law in many other countries that the
fairness
or otherwise of the dismissal of an employee must be determined
on the basis of the reasons for dismissal which the
employer gave at
the time of the dismissal.’
[23]
As
a generally applicable principle, this Court is guided by the
dicta
in
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and others
[3]
where
the LAC held that facts must be proven:
‘
The
onus is thus on the employer to prove the facts upon which it relies
for the dismissal. If the facts upon which the employer
relies are
not proven at the end of the arbitration proceedings, then
cadit
quaestio
, the employer has failed to
prove the fairness of the dismissal. On the other hand, if the
employer does prove the facts upon which
it relies, then the
arbitrator must make a determination as to whether or not the
dismissal is unfair and only if the arbitrator
is so satisfied may he
or she order reinstatement.’
[24]
In
casu,
the Respondent made it clear
that the Applicant was dismissed for misconduct and it is unfortunate
that the transcribed record reflects
that the Applicant’s
representative spent much time attempting to create confusion as to
whether he was indeed dismissed
for misconduct instead of poor
performance.
The
Applicant’s case
[25]
The
Applicant testified that the submission of the KPI file was part of
his job description. On 23 December 2019, he submitted the
December
2019 KPI file and the handover file to Mr Coetzee, who was appointed
to act in his position in January 2020. The KPI file
was in a good
condition when he handed it over to Mr Coetzee.
[26]
In
cross-examination, the Applicant agreed that he was employed in a
responsible position of trust. He agreed that the KPI file
was an
important part of his functions and that the said file is very
important in the workplace. The Applicant conceded that he
knew how
to compile the KPI file and he knew what was required to be in the
file, which included a number of sections, which are
important for
the maintenance of
inter alia
the
safety of the workplace. If an incident were to happen in the
workplace, the KPI file would be relevant and would be checked.
If
the file is not correctly completed and not up to date, the company
could be at risk, should there be an incident in the workplace.
[27]
The
Applicant further conceded that he was given instructions to compile
the KPI file and to submit it by the 25
th
of each month. He also conceded that he had received a written and a
final written warning for issues similar to what he was dismissed
for
and that both were still valid at the time he was dismissed.
[28]
The
Applicant agreed that he did not submit the KPI file to Mr Legodi on
24 December 2019, because the mine was closed on that day,
but he
gave it to the person who was appointed to act in his position on 23
December 2019. He conceded that he signed the instruction
that was
given that the KPI file had to be submitted to Mr Legodi before the
25
th
of every month and he agreed that it was a clear instruction. He
conceded that he did not give the KPI to Mr Legodi and that to
submit
a KPI file which is improperly completed would be unacceptable.
Analysis
of the arbitrator’s findings and the grounds for review
The
test on review
[29]
I
have to deal with the grounds for review within the context of the
test this Court must apply in deciding whether the arbitrator's
decision is reviewable. The test has been set out in
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[4]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The Constitutional Court held that the arbitrator's conclusion must
fall within a range of decisions that a reasonable decision
maker
could make.
[30]
The
LAC in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
[5]
affirmed the test to be applied in review proceedings and held that:
‘
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.’
[31]
The
applicant in a review application is not to take a microscopic view
and dissect every finding of the arbitrator, but has to
show that
holistically, the award is unreasonable or that the arbitrator’s
findings led to an unreasonable outcome.
[32]
In
considering the Applicant’s grounds for review, this Court
should not lose sight of the limited scope within which a review
application is to be decided.
[33]
In
Head
of the Department of Education v Mofokeng and others
[6]
(Mofokeng),
the LAC provided the following exposition of the review test:
‘
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.’
[34]
The
review Court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with
each
of those factors and then determine whether a failure by the
arbitrator to deal with it is sufficient to set the award aside.
This
piecemeal approach of dealing with the award is improper as the
reviewing Court must consider the totality of the evidence
and then
decide whether the decision made by the arbitrator is one that a
reasonable decision maker could make.
[7]
[35]
It
is within the context of this test that I must decide this
application for review.
The
arbitrator’s findings
[36]
The
arbitrator had to determine whether the Applicant’s dismissal
was fair. In deciding the issue, the arbitrator referred
to the Code
of Good Practice
[8]
and the
issues to be decided in determining whether a dismissal for
misconduct is fair.
[37]
The
arbitrator ultimately found that the Applicant’s dismissal was
procedurally and substantively fair. He found that the
procedure that
preceded the Applicant’s dismissal was not flawed.
[38]
The
arbitrator found that the Applicant failed to submit the KPI file for
December 2019. This was in breach of the instructions
issued by Mr
Legodi on 26 May 2017 and 29 August 2019. He further found that the
Applicant had ample time to submit the KPI file
to Mr Legodi, as his
last working day was 3 January 2020, prior to going on leave. Mr
Coetzee submitted the file on 8 January 2020.
The arbitrator recorded
that this evidence was not challenged by the Applicant.
[39]
The
arbitrator further considered the fact that the Applicant had a
written and final written warning, which were still valid at
the time
of his transgression for similar misconduct, therefore the
Applicant’s dismissal was fair.
The
grounds for review
[40]
Considering
the applicable authorities and the test on review, there are obvious
difficulties with the Applicant’s case, which
I will highlight
before dealing with the merits of his application.
[41]
As
a general principle, the applicant in a review application must make
out his or her case in the founding affidavit, as may be
supplemented
by a supplementary affidavit, if necessary, after the transcribed
record becomes available. Rule 7A(2)(c) of the Rules
[9]
provides that the notice of motion must be supported by an affidavit,
setting out the factual and legal grounds upon which the
applicant
relies to have the decision or proceedings corrected or set aside.
[42]
As
to the requirement of setting out the legal grounds upon which the
applicant relies in the founding affidavit, this requires
the
applicant to set out, with sufficient precision and detail, the
grounds for review and the bases on which such grounds are
relied
upon. Vague and unsubstantiated or generic statements are not
sufficient.
[43]
The
role of the reviewing Court is limited to deciding issues that are
raised in the applicant’s founding (and supplementary)
affidavit. This was confirmed by the Constitutional Court in
Commercial
Workers Union of SA v Tao Ying Metal Industries and others (Tao
Ying)
[10]
where
it was held that:
‘…
the
role of the reviewing court is limited to deciding issues that are
raised in the review proceedings. It may not on its own raise
issues
which were not raised by the party who seeks to review an arbitral
award. There is much to be said for the submission by
the workers
that it is not for the reviewing court to tell a litigant what it
should complain about. In particular, the LRA specifies
the grounds
upon which arbitral awards may be reviewed. A party who seeks to
review an arbitral award is bound by the grounds contained
in the
review application. A litigant may not on appeal raise a new ground
of review. To permit a party to do so may very well
undermine the
objective of the LRA to have labour disputes resolved as speedily as
possible.’
[44]
A
party who seeks to review an arbitration award is bound by the
grounds for review contained in the review application, subject
to
one qualification namely that the Court is obliged to deal with a
point of law apparent from the papers.
[11]
[45]
In
the Applicant’s founding affidavit, his grounds for review are
vague and unsubstantiated. They are no more than broad statements
that the arbitrator failed to consider the Applicant’s material
evidence or failed to consider all the evidence or to apply
his mind
to the material evidence and “
thus
committing a gross irregularity in relation to his duties as an
arbitrator, alternatively, committed a gross irregularity in
respect
of the arbitration proceedings [and] came to a finding which a
reasonable decision maker could not reach under the circumstances”.
[46]
The
Applicant’s case is also that the arbitrator failed to identify
the dispute he was required to arbitrate, or he misconceived
the
nature of the dispute he was required to arbitrate. This ground for
review is also vague and unsubstantiated. The Applicant
filed a
supplementary affidavit wherein the aforesaid ground for review was
repeated but remained unsubstantiated. It is not for
this Court to
guess in what respect the arbitrator misconceived the enquiry, it is
for the Applicant to tell the Court, which he
dismally failed to do.
[47]
In
his supplementary affidavit, the Applicant made specific averments as
to what evidence the arbitrator ignored or failed to consider
and in
the main, it relates to the Applicant’s version that he
submitted the KPI file on 23 December 2019 and that it was
indeed
received by Mr Legodi. The Applicant’s version in argument is
that he compiled the KPI file and that Mr Coetzee, who
was lawfully
appointed to act on behalf of the Applicant when he took leave in
January 2020, was instructed to hand over the report
to Mr Legodi.
The argument is that there is no merit in the charge that the KPI
file was not submitted or received and that the
arbitrator ignored
the Applicant’s evidence in this regard.
[48]
It
has to be emphasized that the review test to be applied
in
casu
is a stringent and conservative
test of reasonableness. The question is whether holistically viewed,
the decision taken by the arbitrator
was reasonable based on the
evidence placed before him. The reasons in the arbitration award must
state the arbitrator’s
material findings of fact and the
decision must be made on the basis of the evidence adduced.
[49]
The
Applicant must show that the arbitrator arrived at an unreasonable
result. In fact, the Applicant must show that the decision
is one
that a reasonable decision maker could not make, based on the
evidence presented. The test is not whether the arbitrator
came to
the best decision or a decision acceptable to the Applicant. A review
is not an appeal.
[50]
In
my view, there is no merit in the Applicant’s grounds for
review. In cross-examination, the Applicant conceded that he
was
given instructions to compile the KPI file and to submit it by the
25
th
of each month. He also conceded that he had received a written and a
final written warning for issues similar to what he was dismissed
for
and that both were still valid at the time he was dismissed.
[51]
He
further conceded that he did not give the December 2019 KPI file to
Mr Legodi and that to submit a KPI file which is improperly
completed
would be unacceptable. He agreed that he did not submit the KPI file
to Mr Legodi on 24 December 2019, because the mine
was closed on that
day, but he gave it to the person who was appointed to act in his
position on 23 December 2019.
[52]
The
Applicant’s version that he had compiled the December 2019 KPI
file and gave it to Mr Coetzee to hand it over to Mr Legodi
was
disputed by Mr Legodi, who insisted that the KPI file for December
2019, which was submitted in January 2020, was compiled
by Mr
Coetzee.
[53]
It
was common cause that Mr Coetzee was only acting in the Applicant’s
position from 6 January 2020, that the Applicant was
responsible for
the entire December 2019 period and that he was at work until 3
January 2020.
[54]
The
arbitrator’s finding that the Applicant failed to submit the
KPI file for December 2019 in breach of the instruction issued
by Mr
Legodi, is supported by the evidence adduced. In fact, the Applicant
conceded that he signed the instruction that was given
that the KPI
file had to be submitted to Mr Legodi before the 25
th
of every month and he agreed that it was a clear instruction. He
conceded that he did not give the KPI to Mr Legodi.
[55]
The
Applicant’s version that he submitted that KPI file to Mr
Coetzee on 23 December 2019 is improbable and the fact that
the
arbitrator did not accept the said version, is not unreasonable. The
version is in fact wholly improbable when the evidence
is considered
holistically. The undisputed evidence was that the instruction was
that the KPI file had to be submitted to Mr Legodi.
The Applicant and
Mr Legodi were at work at the time and the Applicant only went on
leave on 3 January 2020. There was no reason
for the Applicant to
give the KPI file to Mr Coetzee on 23 December 2019, when he was
still at work until 3 January 2020, Mr Coetzee
only started to act in
his position from 6 January 2020 and the evidence indicated that the
Applicant had ample opportunity to
submit the KPI file to Mr Legodi,
as he was instructed to do. The Applicant did not call Mr Coetzee to
support his version and
there was no evidence other than the
Applicant’s to show that he indeed gave the file to Mr Coetzee
on 23 December 2019,
which version was disputed by the Respondent.
Even if that was so, it still would not have complied with the
instruction to submit
the KPI file to Mr Legodi.
[56]
In
Mofokeng,
the
LAC confirmed that an irregularity or error must be material and must
be assessed 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.
The error or irregularity must thus be material to the determination
of the dispute.
[57]
T
he
question that this Court must ask on review is whether the way the
arbitrator dealt with the evidence constituted an irregularity
or
error which was
material,
whether it impacted on the determination of the question of whether
the Applicant’s dismissal was fair and whether
it distorted the
arbitrator’s ultimate decision.
The
Applicant failed to state how those impacted the determination of the
fairness of his dismissal and he made no averment to the
effect that
it distorted the ultimate outcome. It is evident that the Applicant,
in formulating his grounds for review, had lost
sight of the
stringent test to be applied on review.
Conclusion
[58]
In
Quest
Flexible Staffing Solutions (Pty) Ltd (A division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate,
[12]
the
LAC confirmed the test to be applied on review:
‘
[12]
The
test that the Labour Court is required to apply in a review of an
arbitrator’s award is this: “Is the decision reached
by
the commissioner one that a reasonable decision maker could not
reach?” Our courts have repeatedly stated that in order
to
maintain the distinction between review and appeal, an award of an
arbitrator will only be set aside if both the reasons and
the result
are unreasonable. In determining whether the result of an
arbitrator’s award is unreasonable, the Labour Court
must
broadly evaluate the merits of the dispute and consider whether, if
the arbitrator’s reasoning is found to be unreasonable,
the
result is nevertheless, capable of justification for reasons other
than those given by the arbitrator. The result will, however,
be
unreasonable if it is entirely disconnected with the evidence,
unsupported by any evidence and involves speculation by the
arbitrator.
[13]
An
award will no doubt be considered to be reasonable when there is a
material connection between the evidence and the result or,
put
differently, when the result is reasonably supported by some
evidence. Unreasonableness is, thus, the threshold for interference
with an arbitrator’s award on review.’
[59]
In
Bestel
v Astral Operations Ltd and others,
[13]
the LAC considered the limited scope possessed by this Court to
review an arbitration award and accepted that an arbitrator’s
finding will be unreasonable if the finding is unsupported by any
evidence, if it is based on speculation by the arbitrator, if
it is
disconnected from the evidence, if it is supported by evidence that
is insufficiently reasonable to justify the decision
or if it was
made in ignorance of evidence that was not contradicted. The LAC held
that:
‘…
the
ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to be correct
by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[60]
Let
it be clear: this is an application for review and not an appeal.
This is a difference that this Court must maintain. An award
will
only be set aside on review if both the findings and the result are
unreasonable. Even where the arbitrator’s findings
or reasoning
may be unreasonable, the result could nevertheless be capable of
justification, and therefore be reasonable and not
be interfered with
on review.
[61]
I
have to consider the grounds for review within the context of the
test this Court must apply in deciding whether the arbitrator's
decision is reviewable. The ultimate question is whether,
holistically viewed, the decision taken by the arbitrator was
reasonable
based on the evidence placed before him. I have considered
this question after perusal of the transcribed record, the
arbitration
award and the grounds for review raised by the Applicant.
Considering the
evidence before the arbitrator holistically, the arbitrator’s
findings are not disconnected from the evidence,
but in fact, it is
based on the evidence presented.
The
arbitrator’s findings fall within a band of reasonableness
based on the evidence that was placed before him. The arbitrator
did
not misconceive the enquiry but indeed determined the principal issue
he was required to determine.
[62]
In
my view, the arbitrator’s findings fall within a band of
reasonableness based on the evidence that was placed before him
and
there is no basis for this Court to interfere with it on review.
Costs
[63]
The
last issue to be decided is the issue of costs.
[64]
In
so far as costs are concerned, this Court has a broad discretion in
terms of section 162 of the Labour Relations Act
[14]
(LRA) to make orders for costs according to the requirements of the
law and fairness.
[65]
The
requirement of law has been interpreted to mean that the costs would
follow the result. In considering fairness, the conduct
of the
parties should be taken into account and
mala
fides
, unreasonableness and
frivolousness are factors justifying the imposition of a costs order.
[66]
In
Zungu
v Premier of the Province of KwaZulu-Natal and Others,
[15]
the
Constitutional Court confirmed that the rule that costs follow the
result does not apply in labour matters. The Court should
seek to
strike a fair balance between unduly discouraging parties from
approaching the Labour Court to have their disputes dealt
with and,
on the other hand, allowing those parties to bring to this Court (or
oppose) cases that should not have been brought
to Court (or opposed)
in the first place.
[67]
This
is a matter where this Court has to strike a balance.
[68]
Mr
Woodhouse for the Respondent submitted that a cost order should be
made in favour of the Respondent. He submitted that the review
application had no merit and that the Applicant’s case was
undermined by the common case facts. The Applicant should have
withdrawn the application, once he received the transcribed record
and the Respondent’s opposing papers, yet he persisted
with
this meritless application. There is no ongoing relationship between
the parties and the Respondent had to incur unnecessary
costs in
defending the review application.
[69]
Mr
Serogole submitted that the application has merit and that the
Applicant is unemployed.
[70]
In
my view, this is a case where a cost order is warranted. This is more
so as the Applicant was legally represented and did not
approach this
Court as an unrepresented layperson. When the record became available
it should have been evident to the Applicant’s
legal
representatives that the grounds for review were not supported by the
transcribed record and were not sustainable, yet this
application was
persisted with.
[71]
In
casu,
it is evident that the
Applicant persisted with a review application without any reflection
as to the content of the transcript,
the provisions of the LRA, the
applicable authorities and the possible prospects of success.
[72]
Although
this is a case where a cost order would be justified, more so where
the Applicant instructed lawyers to act on his behalf
and where a
meritless application was persisted with, I am mindful of the fact
that the Applicant is unemployed and even if a cost
order is granted,
he would in all probability not be able to pay the Respondent’s
costs. Having said that, it should not
be understood to mean that
being unemployed is a license to pursue meritless applications
without any consequences. More so when
lawyers are instructed to act.
[73]
In
the premises, I make the following order:
Order
1.
The
review application is dismissed;
2.
There
is no order as to costs.
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate P F Serogale
Instructed
by: Mashifane Moswane Attorneys
For
the Third Respondent:
Mr D Woodhouse from Pinsent Masons Inc. Attorneys
[1]
Act
29 of 1996.
[2]
[2007]
ZALAC 12
;
(2008)
29 ILJ 964 (LAC) at para 32.
[3]
[2000]
ZALAC 10
; (2000) 21 ILJ 1051 (LAC) at para 50.
[4]
[2007]
ZACC 22
;
(2007)
28 ILJ 2405 (CC) at para 110.
[5]
[2013]
ZALAC 28
;
(2014)
35 ILJ 943 (LAC) (
Gold
Fields
)
at para 16.
[6]
[2014]
ZALAC 50
;
[2015] 1 BLLR 50
(LAC) at para 33.
[7]
Gold
Fields supra
at paras 18 and 19.
[8]
Schedule
8 of the
Labour Relations Act 66 of 1995
, as amended.
[9]
GN
1665 of 1996: Rules for the Conduct of Proceedings in the Labour
Court.
[10]
[2008]
ZACC 15
; (2008) 29 ILJ 2461 (CC) at para 66.
[11]
Ibid
at para 67.
[12]
[2014]
ZALAC 55; (2015) 36 ILJ 968 (LAC)
at
paras 12 and 13.
[13]
[2010]
ZALAC 19
;
[2011]
2 BLLR 129
(LAC) at para 18.
[14]
Act
66 of 1995, as amended.
[15]
[2018]
ZACC 1
; (2018) 39 ILJ 523 (CC) at para 24.