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[2024] ZALCJHB 299
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Sibanye Gold Limited v Commission for Conciliation Mediation and Arbitration and Others (JR1877/21) [2024] ZALCJHB 299 (5 April 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR1877/21
In
the matter between:
SIBANYE
GOLD LIMITED
First
Applicant
And
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
VORSTER MALULEKE N.O.
Second
Respondent
LUCKY
CLEAVE MNISI
Third
Respondent
Heard:
12 January 2024
Delivered:
05 April 2024
JUDGMENT
SCHÄFER-KING,
AJ
Introduction
[1]
The
Applicant launched an application in terms of section 45 of the
Labour Relations Act
[1]
(LRA) to
review and set aside and/or correct the Second Respondent’s
arbitration award under case number NWRB3020/20 dated
28 July 2021
(the award). The application was opposed by the Third Respondent and
opposing papers and heads of argument were filed
on behalf of the
Third Respondent. However, there was no appearance for the Third
Respondent at the hearing of this matter on 12
January 2024 despite
the notice of set down having been served.
[2]
In terms of the arbitration award, the
Second Respondent found that the dismissal of the Third Respondent
was procedurally fair
but substantively unfair and ordered the
Applicant to pay the Third Respondent compensation in the amount of
R2,267,574.96 (R283,446.87
x 8).
[3]
The Applicant seeks an order that the award
be reviewed and set aside and that the award be substituted with an
order that the dismissal
of the Third Respondent was substantively
fair. In the alternative, the Applicant seeks an order that the
matter be referred back
to the First Respondent for arbitration
de
novo
to be conducted before another
commissioner (other than the Second Respondent).
Background
[4]
Briefly, the facts of this matter are that
the Third Respondent was employed as Vice President: Mining by the
Applicant.
[5]
In and around August 2019, as a result of
complaints received regarding poor timekeeping by senior employees at
the Roland Shaft,
the Applicant investigated the clock-in card
history of senior employees at the Roland Shaft, which included the
Third Respondent.
[6]
The investigation revealed that the Third
Respondent had failed to clock-in for work at Roland Shaft on a
number of occasions during
2019.
[7]
On 28 August 2019, the Third Respondent
informed his line manager, Mr van Aswegen (van Aswegen) that he had
to take his wife for
an operation on 28 August 2019 and accordingly
would not be at work on that day. Van Aswegen granted permission.
[8]
On 23 September 2019, the Third Respondent
informed van Aswegen that he was not feeling well and would not be at
the workplace on
that day.
[9]
A meeting took place between van Aswegen
and the Third Respondent on 10 October 2019 to discuss the Third
Respondent’s clock-in
history record.
[10]
On 11 October 2019, the Third Respondent
sent an email to van Aswegen in which he provided an explanation for
his absence on 28
August 2019 and 23 September 2019 and undertook to
ensure that the required leave forms were captured for these days.
[11]
It is common cause that the Third
Respondent did not ensure that the leave forms were captured for 28
August 2019 and 23 September
2019.
[12]
The Applicant convened a disciplinary
hearing against the Third Respondent and charged him with the
following:
‘
1.
GROSS DISHONESTY / FRAUD in that you gained financially or otherwise
(in terms of normal
salary received and/or leave days not deducted)
in respect of the days mentioned below for which the clocking system
has no record
of you being at work:
June 2019 : 5 June 2019
(Wednesday) and/or
8 June 2019 (Saturday)
and/or
12 June 2019 (Wednesday)
and/or
19 June (Wednesday) and
or
July 2019 : 11 July
2019 (Thursday) and/or
20 July 2019 (Saturday)
and/or
22 July 2019 (Monday)
and/or
23 July 2019 (Tuesday)
and/or
24 July 2019 (Wednesday)
and/or
30 July 2019 (Tuesday)
and/or
August 2019 : 12 August
2019 (Monday) and/or
19 August 2019 (Monday)
and/or
28 August 2019
(Wednesday) and/or
September 2019 : 14
September 2019 (Saturday) and/or
16 September 2019
(Monday) and/or
23 September 2019
(Monday) and/or
October 2019 : 7
October 2019 (Monday) and/or
8 October 2019 (Tuesday).
This resulted in
prejudice to the Company.
2.
GROSS DISHONESTY / FRAUD in that you gained financially or otherwise
(in terms of full salary
received for the day) in respect of the days
mentioned below for which the clocking system has no reflection of
you being at work
for a full shift:
June 2019 : 21 June 2019
(Friday) and/or
25 June 2019 (Tuesday)
and/or
26 June 2019 (Wednesday)
and/or
27 June 2019 (Thursday)
and/or
28 June 2019 (Friday)
and/or
29 June 2019 (Saturday)
and/or
July 2019 : 3 July 2019
(Wednesday) and/or
5 July 2019 (Friday)
and/or
9 July 2019 (Tuesday)
and/or
17 July 2019 (Wednesday)
and/or
19 July 2019 (Friday)
and/or
25 July 2019 (Thursday)
and/or
26 July 2019 (Friday)
and/or
August 2019 : 2 August
2019 (Friday) and/or
14 August 2019
(Wednesday) and/or
16 August 2019 (Friday)
and/or
23 August 2019 (Friday)
and/or
27 August 2019 (Tuesday)
and/or
29 August 2019 (Thursday)
and/or
30 August 2019 (Friday)
and/or
September 2019 : 2
September 2019 (Monday) and/or
5 September 2019
(Thursday) and/or
9 September 2019 (Monday)
and/or
11 September 2019
(Wednesday) and/or
18 September 2019
(Wednesday) and/or
30 September 2019
(Monday) and/or
October 2019 : 4 October
2019 (Friday) and/or
9 October 2019
(Wednesday).
This
resulted in prejudice to the Company.
’
[13]
The chairperson found the Third Respondent
guilty of charge 1 (gross dishonesty/fraud) in respect of his
absences from work on 28
August 2019 and 23 September 2019.
[14]
The Third Respondent was dismissed from the
employ of the Applicant and after an unsuccessful internal appeal,
the Third Respondent
referred an unfair dismissal dispute to the
First Respondent.
[15]
The arbitration took place over a number of
days, namely 17 May 2021 and 6 to 8 July 2021.
[16]
The Second Respondent issued the award on
28 July 2021 and determined that the dismissal of the Applicant was
procedurally fair
but substantively unfair and ordered the Applicant
to pay the Respondent compensation in the amount equal to
R2,267,574.96.
Grounds for Review
[17]
The Applicant sought to review and set
aside the award on the following grounds:
17.1
In finding that the Third Respondent had not acted dishonestly by
failing to apply for leave for 28 August 2019 and 23 September
2019
(and that his dismissal was therefore substantively unfair), the
Second Respondent arrived at a conclusion which no reasonable
decision maker could have reached on the evidence before him (the
first ground of review);
17.2
The Second Respondent misconstrued the nature of the dispute before
him (by considering whether the Third Respondent had encashed
or
applied for the leave for the days in question instead of considering
whether the Third Respondent had acted dishonestly by
failing to
apply for leave for such days), and thereby committed a gross
irregularity in the conduct of the arbitration proceedings.
[18]
Counsel for the Applicant contended that
this is a case
of a commissioner having
committed a gross irregularity in failing to consider materially
relevant facts/factors and having misconducted
himself by not
determining what was a core issue for determination. This core issue
(so Counsel for the Applicant argued) was the
credibility or veracity
of the Third Respondent’s defence, namely that he forgot to
submit his leave for the days in question
despite an undertaking to
do so contained in an email dated 11 October 2019 (the “forgot”
defence).
The Applicant’s
Submissions
[19]
The Applicant’s counsel submitted
that the review boils down to this:
19.1
Is the Second Respondent’s finding that the Third Respondent
simply forgot to apply for leave reasonable?
19.2
If this finding is unreasonable, is there a reasonable basis upon
which the finding of a lack of dishonesty can nevertheless be
upheld?
19.3
If the answer is “no”, is there a reasonable basis upon
which the Second Respondent’s decision not to uphold
the Third
Respondent’s dismissal can survive review.
[20]
It was the Applicant’s counsel’s
submission that the answer to each of the aforesaid questions is
“no”.
[21]
The Applicant’s counsel contended
that:
21.1
What is destructive of the Third Respondent’s “forgot”
defence is that he raised a mutually destructed defence
at his
disciplinary enquiry i.e. that he did not have to apply for leave;
21.2
The Third Respondent effectively admitted under cross examination
that if it is found that he acted deliberately, this amounts
to
dishonesty and that this would warrant dismissal.
[22]
It was contended by the Applicant that the
misconduct which culminated in the dismissal of the Third Respondent
was that he had
acted dishonestly by not applying for leave for 28
August 2019 and 23 August 2019, despite having undertaken to do so in
his email
dated 11 October 2019.
[23]
As such, whether or not the Third
Respondent had:
23.1
Misrepresented to the Applicant that he had applied for leave on the
days in question; or
23.2
Taken or attempted to take the leave days in question, or
alternatively, had encashed or attempted to encash the leave days in
question, were not issues that the Second Respondent was required to
determine.
[24]
It was further submitted that what is fatal
to the Third Respondent’s “forgot” defence is that
he raised a mutually
destructive defence at his disciplinary enquiry
i.e. that he did not have to apply for leave.
[25]
It was contended that:
25.1
Apparent from the arbitration award is that the Second Respondent
incorrectly applied his mind to these very issues;
25.2
The Third Respondent was dismissed because he had acted dishonestly
by not completing leave forms for the days in question after
undertaking to do so in his email to van Aswegen on 11 October 2019;
25.3
The dishonesty and potential prejudice arose when the Third
Respondent failed to complete the said leave forms;
25.4
The Second Respondent had taken irrelevant factors into account and
had failed to take into account material and relevant evidence
(i.e.
the Third Respondent’s failure to raise the “forgot”
defence during his disciplinary enquiry);
25.5
The Second Respondent had erroneously concluded that the Applicant
had not been dishonest because he had not misrepresented that
he
applied for leave for the days in question and he had not taken or
encashed the days in question, alternatively attempted to
take or
encash the days in question.
[26]
The Second Respondent’s failure to
appreciate the true nature of the enquiry before him therefore
resulted in the Second Respondent
arriving at an unreasonable
conclusion.
The Third Respondent’s
Submissions
[27]
In his opposing papers and heads of
argument, the Third Respondent submitted that the charges against him
at the disciplinary enquiry
did not revolve around the undertaking
that he had made on 11 October 2019 but rather concerned the period
prior to that which
consisted of approximately 17 other dates.
[28]
It was contended that:
28.1
The Applicant’s counsel clarified the Applicant’s case
during the arbitration hearing as being about the Third Respondent
having made a commitment on 11 October 2019 and failing to abide by
that commitment;
28.2
The Third Respondent’s defence that he “forgot” to
apply for leave on the days in question and the fact that
this had
not been raised at his disciplinary enquiry, was irrelevant in that
the Third Respondent was not charged with having undertaken
on 11
October 2019 to submit the leave forms and having failed to do so;
28.3
The Third Respondent’s defence is relevant in respect of the
period after the Third Respondent sent the email to van Aswegen
on 11
October 2019;
28.4
During the disciplinary hearing, the defence of the Third Respondent
in respect of the charges (as he understood them) was to explain
his
whereabouts for each of the 19 days for which he was charged with
(charge 1) and to explain his whereabouts in respect of the
28 days
in respect of which it was alleged that he had not worked a full
shift (charge 2);
28.5
The Second Respondent correctly summed up the Applicant’s case
as being that the Third Respondent acted dishonestly and to
the
financial prejudice of the Respondent by not applying for leave for
the two days in question (28 August 2019 and 23 September
2019) after
undertaking in writing to van Aswegen that he would do so.
[29]
The Applicant did not challenge the Second
Respondent’s summation of the Applicant’s case.
[30]
The Second Respondent’s summation of
the Applicant’s case during the arbitration lends credence to
the Third Respondent’s
contention that the Applicant’s
case has effectively changed through clarification by the Applicant’s
counsel.
[31]
It was contended that:
31.1
The defence that the Third Respondent “forgot” to submit
the leave forms was not relevant during the disciplinary hearing
because the Third Respondent was not charged with failing to submit
leave forms after his undertaking to do so. The undertaking
on 11
October 2019 to van Aswegen by the Third Respondent was that the
Third Respondent would ensure that the leave in respect
of those two
days was captured;
31.2
The Second Respondent also took into account the unchallenged
evidence of Ms De Bruin (De Bruin) that Western Platinum Limited
(the
company that had employed the Third Respondent prior to his
employment with the Applicant in January 2020) did not treat the
failure to submit leave forms as dishonesty, gross dishonesty or
fraud. It was contended that it was clear from the evidence of
De
Bruin that in her area of responsibility, no employees were dismissed
by Western Platinum Limited for failing to submit leave
forms;
31.3
There was no evidence presented by the Applicant to contradict the
evidence of De Bruin in this regard.
[32]
Accordingly, it was contended that the
Second Respondent correctly concluded that the Applicant conceded
that there was no dishonesty
or fraud at least at the time that the
Third Respondent made an undertaking to van Aswegen that he would
submit the forms.
[33]
The Second Respondent also correctly
concluded that after the Third Respondent undertook to submit the
leave forms, there was no
evidence that the Third Respondent ever
claimed to have submitted the leave forms for the said two days.
[34]
It was contended by the Third Respondent
that in respect of the first ground of review by the Applicant, the
Applicant relies on
what the Applicant states is a “forget”
defence and the Second Respondent having failed to draw, what the
Applicant
refers as the most reasonable inference, that the “forget”
defence was an afterthought by the Second Respondent after
the Third
Respondent was dismissed by the Applicant.
[35]
The Applicant’s contention that the
Second Respondent should have concluded that the Third Respondent had
deliberately not
signed the leave forms for 28 August 2019 and 23
September 2019 after 11 October 2019, is not supported by the
evidence before
the Second Respondent. The submission of the
Applicant that the Second Respondent should have rejected the defence
of the Third
Respondent and should have concluded that the Third
Respondent had deliberately not signed the leave forms for 28 August
2019 and
23 September 2019 is not supported by facts.
[36]
It was contended that:
36.1
The notion that the failure of the Third Respondent to ensure that
the leave forms for these two days were captured after 11 October
2019 should be regarded as gross dishonesty or fraud is misplaced;
36.2
It was also misplaced in that the Applicant seeks to have the Second
Respondent conclude that it was dishonesty because the Third
Respondent did not state that he forgot to submit the leave forms
after 11 October 2019;
36.3
The Applicant has failed to show which facts prove that the Third
Respondent deliberately did not submit the leave forms to van
Aswegen
after the Third Respondent undertook to do so on 11 October 2019;
36.4
The Second Respondent correctly concluded (and this was not
challenged by the Applicant) that the Applicant conceded that there
was no dishonesty or fraud at least at the time when the Third
Respondent made an undertaking on 11 October 2019 that he would
submit the leave forms;
36.5
The decision arrived at by the Second Respondent that the Third
Respondent did not act dishonestly or fraudulently by failing to
submit the leave forms after undertaking to do so is one that a
reasonable decision maker could arrive at based on the evidence
before him.
[37]
It was submitted that the Applicant did not
produce evidence before the Second Respondent that showed that the
Third Respondent
is guilty of dishonesty.
[38]
The Applicant’s contention that the
Second Respondent’s finding that the Third Respondent forgot to
submit the leave
forms is a decision a reasonable decision would not
have made, is not supported by facts before the Second Respondent.
[39]
In regard to the second ground of review,
it was contended that the Second Respondent did not misconstrue the
nature of the dispute
before him. One of the facts in dispute was
whether or not there was an intention on the part of the Third
Respondent to defraud
the Applicant or to be grossly dishonest
towards the Applicant.
[40]
The Second Respondent did not misconstrue
what the Applicant’s case was at the arbitration hearing.
[41]
The Second Respondent correctly recorded
that at the arbitration hearing, the Applicant’s case was that
the Third Respondent
acted dishonestly and to the financial prejudice
of the Applicant by not applying for leave for 28 August 2019 and 29
September
2019 after undertaking in writing to van Aswegen that he
would do so.
[42]
There is no reasonable explanation provided
by the Applicant in considering whether or not the Third Respondent
had the intent to
be dishonest or to defraud the Applicant, the
Second Respondent should not have considered whether or not the Third
Respondent
encashed his leave, applied for leave, misrepresented to
van Aswegen that he had ensured that the leave forms were captured
and
why evidence was led in cross examination on these issues if
indeed it was irrelevant to the consideration of whether or not the
Third Respondent had the intention to defraud or be dishonest to the
Applicant.
[43]
The submission in argument by the Applicant
that the Third Respondent was dismissed because the Third Respondent
had acted dishonestly
by not completing leave forms for the days in
question after undertaking in the email to do so is not correct. The
Third Respondent
was found guilty by the chairperson of the
disciplinary enquiry for what the chairperson of the disciplinary
hearing described
as the Applicant having proved its case on a
balance of probability with respect to charge 1 for 28 August 2019
and 23 September
2019.
[44]
The chairperson of the disciplinary hearing
found the Third Respondent guilty of fraud, the chairperson stated
that:
44.1
The email dated 11 October 2019 by the Third Respondent was a
misrepresentation, when in fact Mr Benson and van Aswegen agreed
that
the email was not a misrepresentation;
44.2
The Third Respondent failed to submit the leave forms whilst knowing
that he was supposed to do so and then brought van Aswegen
under the
false impression that he had done so, knowing that this would be the
end of the matter.
[45]
The Third Respondent contended that the
submission by the Applicant that the Second Respondent erroneously
concluded that the Third
Respondent had not been dishonest because he
had not misrepresented that he had applied for leave and had not
taken or encashed
leave, alternatively attempted to take or encash
the leave is not supported by any evidence.
[46]
It was contended that:
46.1
The Second Respondent had considered the totality of the evidence
before him;
46.2
The issues that the Applicant states the Second Respondent should not
have considered were placed before the Second Respondent
by the
Applicant. If the Second Respondent should not have considered them,
the Applicant does not state why these issues were
placed before the
Second Respondent by the Applicant;
46.3
There was no evidence placed before the Second Respondent that
dishonesty arose when the Third Respondent failed to complete the
leave forms;
46.4
The Second Respondent correctly found that the failure to submit
leave forms does not in itself render the failure to do so to
be
dishonest. The unchallenged evidence of De Bruin also showed that the
position of Western Platinum Limited was not to regard
the failure to
submit leave forms as dishonest conduct;
46.5
The Second Respondent correctly concluded that there was no evidence
at all pointing to the fact that the Third Respondent intentionally
failed to submit the leave form and that there was no evidence that
the Third Respondent intended to cash the leave days;
46.6
The Applicant was aware that it had to prove that there was
deliberate conduct on the part of the Third Respondent. This is so
because it was one of the issues that was in dispute and the Second
Respondent was called upon by the parties to decide whether
or not
the failure of the Third Respondent after undertaking to do so was
deliberate.
[47]
The finding of the Second Respondent was
that the failure was not deliberate or intentional. It was contended
that the Second Respondent’s
finding that the dismissal of the
Third Respondent was substantively unfair, did not overreach his
powers enshrined in the LRA.
[48]
The Third Respondent submitted that any
other decision maker would have arrived at the same conclusion as the
Second Respondent
considering the facts before him, as the Applicant
did not prove that the Third Respondent was dishonest or fraudulent.
[49]
In addition, the Second Respondent found
that the sanction of dismissal was harsh in the circumstances and
also took into account
the unchallenged evidence of Ms de Bruin in
respect of how Western Platinum Limited dealt with failure to submit
leave forms.
Analysis
[50]
I
do not deem it necessary to extensively address the relevant tests to
be applied in proceedings such as this. The test laid down
in the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
(
Sidumo
)
is namely as follows:
‘…
an
arbitration award will be reviewable if it is one that a reasonable
decision maker could not reach.’
[51]
The
Labour Appeal Court (LAC) confirmed in
Fidelity
Cash Management Services v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
that there can be no doubt under
Sidumo
that:
‘
[102]
… the reasonableness or otherwise of a commissioner’s
decision does not depend – at least not solely
– upon the
reasons that the commissioner gives for the decision. In many cases
the reasons which the commissioner gives for
his decision, finding or
award will play a role in the subsequent assessment of whether or not
such decision or finding is one
that a reasonable decision-maker
could or could not reach. However, other reasons upon which the
commissioner did not rely to support
his or her decision or finding
but which can render the decision reasonable or unreasonable can be
taken into account. This would
clearly be the case where the
commissioner gives reasons A, B and C in his or her award but, when
one looks at the evidence and
other material that was legitimately
before him or her, one finds that there were reasons D, E and F upon
which he did not rely
but could have relied which are enough to
sustain the decision.’
[52]
The
LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[4]
,
stated the applicable test as follows:
‘
In
short: A review 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 which was
reasonable...’
[53]
In
Herholdt
v Nedbank
Ltd
[5]
it
was held that in as much as it was necessary to scrutinize the
evidence presented before the commissioner for the purposes of
determining whether the outcome was reasonable, courts should
nevertheless guard against the setting aside of awards which do not
coincide with their own opinion on the matter and that an award shall
only be susceptible to be set aside in circumstances where
the
outcome is entirely disconnected with the evidence, or where it is
not supported by any evidence, and/or involves speculation
on the
part of the arbitrator.
[54]
In
Nyathikazi
v Public Health and Social Development Sectorial Bargaining Council
and Others
[6]
in
assessing whether the arbitrator committed errors of fact or failed
to attach weight or relevance to any particular facts, it
was
reiterated that:
‘
After
the decision in
Sidumo
and another v Rustenburg Platinum Mines Ltd and another
[7]
and further the explication in
Herholdt
v Nedbank Limited
[8]
,
it is clear that our law dictates that an award delivered by an
arbitrator will only be considered to be unreasonable if it is
one
that a reasonable arbitrator could not reach on all the material that
was before him or her. A material error of fact and the
particular
weight to be attached to a particular fact may in and of itself not
be sufficient to set aside the award but will be
done if the
consequence thereof is to render the ultimate outcome unreasonable.’
[55]
Ultimately, whether or not an arbitration
award, decision or finding of a commissioner is reasonable must be
determined objectively
with due regard to all the evidence that was
before the commissioner and what the issues before him or her were.
[56]
Applying the above principles, an
examination of the evidence presented at the arbitration proceedings
clearly points to the fact
that the Second Respondent has properly,
rationally and justifiably applied his mind to the facts and evidence
presented before
him and has taken all evidence presented before him
into account.
[57]
The crux of the matter as contended by the
Applicant is in regard to the Third Respondent’s alleged gross
dishonesty.
[58]
In
the case of
DRS
Dietrich, Voigt & MIA v Bennet CM N.O and Others
[9]
,
the LAC distinguished between conduct resulting from an error or
negligence and conduct which is intentional. Intentional conduct
would amount to dishonesty.
[59]
In
Nedcor
Bank Ltd v Frank and Others
[10]
,
the LAC held that dishonesty entails “
a
lack of integrity or straightforwardness and, in particular, a
willingness to steal, cheat, lie or act fraudulently
”.
The court also held that the term implies intention on the part of
the employee; just as one cannot steal negligently,
negligence,
however gross, cannot give rise to a charge of dishonestly.
[60]
In my view, there is no evidence that the
conduct of the Second Applicant was intentional and as such he cannot
be said to have
been dishonest. In fact, I am of the view that the
Second Respondent assessed and considered the evidence presented to
him in relation
to the charge that the Third Respondent had been
found guilty of. A reasonable commissioner could not have found the
Third Applicant
guilty of dishonesty.
[61]
The Third Respondent was charged with
“gross dishonesty/fraud” in that you gained financially
or otherwise (in terms
of normal salary received and/or leave days
not deducted) in respect of the days mentioned below for which the
clock-in system
has no record of you being at work. 28 August 2019
and 23 September 2019 were included in these dates.
[62]
On the reasoning of the chairperson and
given the charge, the Second Respondent should indeed have considered
the evidence in relation
to the fact that it was the Applicant’s
case that the Third Respondent acted dishonestly and to the financial
prejudice of
the Applicant by not applying for leave for 28 August
2019 and 23 September 2019, after undertaking in writing to van
Aswegen that
he would do so.
[63]
I am not persuaded that any evidence was
led at the arbitration proceedings that illustrates that the conduct
of the Third Respondent
in not submitting the leave forms as
undertaken to van Aswegen was intentional and therefore dishonest. I
am of the view that the
Second Respondent’s finding that the
Third Respondent forgot to apply for leave is reasonable.
[64]
Having considered the pleadings and the
record of the arbitration proceedings which consists of the bundle of
documents presented
at the arbitration and the transcript of the
arbitration proceedings, I am satisfied that the Second Respondent
considered the
principle issue before him, evaluated the facts
presented at the arbitration hearing and came to a reasonable
conclusion.
[65]
The Applicant has not in this review
application sought to review the relief and accordingly, I am not
required to apply my mind
to that portion of the award.
Conclusion
[66]
I therefore conclude that the review
application falls to be dismissed as the Applicant has failed to make
out any competent grounds
for review of the arbitration award and I
am not persuaded that the decision reached by the Second Respondent
that the dismissal
of the Applicant by the Third Respondent was
substantively unfair, was not one that a reasonable decision maker
would arrive at.
[67]
In the premises I make the following order.
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
L Schäfer-King
Acting Judge of the
Labour Court of South Africa
Appearances
For the
Applicant:
Anton Myburgh SC
Instructed
by:
Solomon Holmes Attorneys Inc
For the First
Respondent: No appearance
[1]
Act 66 of 1995, as amended.
[2]
[2007]
ZACC 22
;
2008
(2) BCLR 158 (CC).
[3]
[2007]
ZALAC 12
;
(2008)
29 ILJ 964 (LAC) at para 102.
[4]
[2013]
ZALAC 28
;
[2014]
1 BLLR 20
(LAC) at para 16.
[5]
[2013]
ZASCA 97
; (2013) 34 ILJ 2795 (SCA) at para 13.
[6]
[2021]
ZALAC 11
;
[2021]
8 BLLR 778
(LAC) at para 21.
[7]
2008
(2) SA 24
CC.
[8]
2013
(6) SA 224 (SCA).
[9]
[2019]
ZALAC 2
; (2019) 40 ILJ 1506 (LAC).
[10]
[2002]
ZALAC 11
; (2002) 23 ILJ 1243 (LAC) at para 15.