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2024
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[2024] ZALCJHB 181
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Minnaar Boerdery v CCMA and Others (JR 2187/2020) [2024] ZALCJHB 181 (29 April 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 2187/2020
In the matter between
MINNAAR
BOERDERY
Applicant
and
CCMA
1
st
Respondent
RAMADIMALA JACKY
MATETA N.O
2
nd
Respondent
NUFBWSAW obo KOBELA
AND 22 OTHERS
3
rd
Respondent
Heard:
5
October 2023
Delivered:
29 April 2024
Summary:
Application to the Labour Court in terms of
section 145
of the
Labour
Relations Act 66 of 1995
as amended to review and set aside the CCMA
arbitration award. The CCMA granted an award in favour of 23
employees who were dismissed
for misconduct during a protected strike
– CCMA found that the employees’ dismissal was both
substantially and procedurally
unfair- Employer now seeks to review
and set aside the commissioner’s decision and/or have it
remitted to CCMA for hearing
de novo
before another
commissioner.
The
judgment was handed down electronically and was circulated to the
legal representatives of the parties. The date and time for
hand down
is deemed to be 29 April 2024.
JUDGMENT
MORGAN, AJ
Introduction
[1]
This is a review application of an arbitration award by the Second
Respondent
(Commissioner), acting under the auspices of the First
Respondent (CCMA) wherein he found that 23 employees represented by
the
Third Respondent (trade union) were dismissed from the
Applicant’s (Minnaar Boerdery) employ unfairly on the ground of
misconduct.
The Commissioner found their dismissal to be both
substantively and procedurally unfair.
[2]
This
application is brought in terms of section 145 of the Labour
Relations Act
[1]
(LRA)
[2]
.
The applicant seeks to have the award granted by the Commissioner
reviewed, set aside and substituted with an order that the dismissals
were both substantively and procedurally fair, alternatively, remit
the matter to the CCMA to be heard
de
novo
(afresh) before another Commissioner of the CCMA other than the First
Respondent.
Background
facts
[3]
The Applicant is Minnaar Boerdery and conducts its business on two
farms.
On 25 May 2018, the Third Respondent referred a mutual
interest dispute to the CCMA. The facts of the mutual interest
dispute are
as follows:
3.1
The Applicant received proposals for salary negotiations from a trade
union official, Mr
Tiba. The Applicant then wrote to the trade union
stating that since the Minimum Wage Act
[3]
was about to be implemented, some of the employees’ posts would
be redundant and would likely be retrenched. The trade union
insisted
that salary negotiations must take place. The Applicant then issued a
list of employees likely to be retrenched and stated
that it wanted
to deploy some of the employees within the company.
3.2
The third Respondents indicated that they do not accept the
Applicant’s proposal and
after going to the CCMA, they were
advised to refer a mutual interest dispute. They were later informed
that they could not refer
the dispute as the employer withdrew the
dispute and requested assistance in terms of section 150 of the Act.
3.3
Both the Applicant and the trade union met with the Commissioner,
where the parties agreed
on a compromise on the bonus as per demands.
Further, the trade union suggested a 9-hour shift, and the employer
counter-proposed
an 8-hour shift during the week and 5 hours on
Saturdays.
3.4
The trade union rejected the employer’s offer. The trade union
membership started
to decrease and were later informed by the
employer that its bargaining rights were terminated.
[4]
Since the dispute remained unresolved, the trade union referred a
dispute
to the CCMA and the Commissioner granted a strike certificate
on 25 June 2018, allowing the union and its members to commence with
a legally protected strike.
[5]
On 22 July 2018, the trade union served the Applicant with a notice
to
commence a strike in which they repeated their demands and the
fact that the strike would commence on 24 July 2018 at 15h30.
[6]
On 24 July 2018, the Applicant provided the Third Respondent with
picketing
guidelines and a lock-out notice.
[7]
Thereafter, the strike commenced. As a result of the strike, all
major
agricultural entrances were barricaded by the striking workers,
physically stopping vehicles from entering or leaving the restricted
area. The strike lasted till 31 July 2018.
[8]
The Applicant issued disciplinary notices for those employees who
participated
in the strike on 13, 16 and 23 November 2018. The
disciplinary hearings were held on 19 and 26 November 2018.
[9]
On 19 and 26 November 2018, the members of the Third Respondent were
dismissed.
[10]
On the subsequent dates: 22 May 2019, 15 to 17 July, 16 September
2019, 11 February 2020
1 to 2 July 2020, 17 July August 2020, and 21
to 23 September 2020, arbitration proceedings were held at the CCMA
offices in Tzaneen
and the proceedings were concluded on 22 and 27
October 2020, and the findings were as follows.
The
arbitration award
[11]
The dismissed employees referred an unfair dismissal dispute to the
CCMA. They challenged
both the substantive and procedural fairness of
their dismissals.
[12]
For brevity, I will summarise the arbitrator’s findings as
follows:
12.1
The dismissal of the employees is found both procedurally and
substantially unfair because they were not
given the opportunity to
cross-examine witnesses,
12.2
With reference to the Code of Good Practice
[4]
,
the employer must put allegations to the employee in a manner that
they can understand.
12.3
The Respondent is ordered to reinstate the Applicants back to
employment (immediately after their dismissal
and they must report
for duty on 1 December 2020) on the same terms and conditions or
terms that are no less favourable than the
ones applied before their
dismissal.
12.4 As
a result of the retrospective nature of the Applicant’s
reinstatement, the Respondent is ordered
to pay amounts that would
have been the Applicant’s salaries from the date of their
dismissals to the date of their reinstatement.
12.5
These back payments are subject to statutory deductions.
Review
by the applicant
[13]
The Applicant brought an application for review as per section 145 of
the LRA, on the following
grounds: (a) the Commissioner committed
misconduct in relation to his duties as an arbitrator and/or (b)
gross irregularities in
the conduct of the arbitration proceedings
by:
13.1
Failing to conduct the proceedings in a fair manner;
13.2
Allowed the Applicant to adduce evidence and by making unreasonable
rulings not supported by facts and or
law;
13.3
Failed to deal with the factual disputes in a fair and legal manner
by disregarding material facts;
13.4
Committed numerous errors of fact; and
13.5
Erred in awarding retrospective reinstatement by failing to have
regard to circumstances surrounding the
dismissal of the Third
Respondent’s members.
Issues
in dispute
[14]
The
issue in dispute before this Court is the test for review, which is
reasonableness. The question to ask is: “
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?”
[5]
Legal
framework
The
test for review is reasonableness.
[15]
Sidumo v
Rustenburg Platinum Mines Ltd and Others
[6]
(Sidumo)
is a landmark case in South African labour law, which established the
test to be used in reviewing awards granted by commissioners.
It must
be noted that section 145 of the LRA is suffused by the
constitutional standard of reasonableness.
[16]
An applicant must not only establish that the commissioner’s
reasons are unreasonable,
but also that no good reason exists in all
the material presented before the commissioner to justify the award.
[17]
The threshold for meeting the test for reviewing a CCMA award is very
high. The test is
not that the arbitrator made an incorrect
decision—this is the basis for an appeal—but that the
arbitrator’s
decision must be one that no reasonable
decision-maker could reach on all the material that was before them.
[18]
Fundamental
labour rights are embodied in section 23 of the Constitution. It
reads as follows: “
(1)
Everyone has the right to fair labour practices”
.
[7]
This constitutional provision protects the right to fair labour
practices and oversees the relationship between an employer and
employee.
[19]
Additionally,
section 185 of the LRA goes hand in hand with the dictates of the
Constitution. It echoes section 23 of the Constitution,
by providing
that “
every
employee has the right not to be unfairly dismissed or subjected to
unfair labour practices”
.
[8]
[20]
On an
international perspective, we must concern ourselves with the
International Labour Organisation (ILO), particularly Convention
158.
South African law corresponds with the ILO's approach, which says
that every dismissal must be done in a fair manner and for
reasons
concerned with either the behaviour or performance of the employee or
the operational requirements of the employer
[9]
.
[21]
Conflict in
employment relationships is nothing new in labour practices.
Conflicts in workplaces can neither be prevented nor avoided
but can
be managed. Should it happen that the parties to a dispute are unable
to come to an agreement, the involvement of an external
and impartial
third party is vital in assisting the parties in resolving any
disputes that may arise.
[10]
In the South African context, this is where the labour legislation,
together with the CCMA, comes into play. With the adoption
of the
LRA, the primary objective of fair labour practices is achieved,
which is to have an effective resolution of labour practices.
[11]
[22]
In
determining the reasonableness of an arbitrator’s award, the
Labour Court must broadly analyse and consider the merits
of the
dispute. If it is established that the arbitrator’s decision is
unreasonable, the result is nevertheless capable of
justification for
reasons other than those given by the arbitrator. The result will be
unreasonable if it is entirely disconnected
from the evidence,
unsupported by any evidence, and involves speculation by the
arbitrator.
[12]
[23]
Returning
to the majority judgment in the
Sidumo
matter, Navsa AJ next reflected on
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and others
[13]
(Bato Star)
,
in which the constitutional formulation of reasonableness had first
been devised. In this matter, the Constitutional Court (CC)
pointed
out that gross unreasonableness was not a requirement to justify a
review. Instead, the question was simply whether the
decision made by
the relevant commissioner was “
one
that a reasonable decision-maker could not reach”
.
[14]
[24]
In Navsa AJ’s judgment, the standard of reasonableness was
stated as follows:
‘
The
ultimate question in determining whether to interfere with a
commissioner’s award in arbitral proceeding is whether the
conduct of the commissioner falls into any of the grounds of review
set forth in section 145 (2) of the LRA, namely, misconduct
in
relation to his or her duties, gross irregularity in the conduct of
the arbitration proceedings, or acting in excess of his
or her
powers. These grounds of review must be interpreted in light of the
constitutional constraints referred to above and the
primary
objective of the LRA. This is the interpretive injunction contained
both in section 39(2) of the Constitution and in the
LRA.’
[15]
[25]
The CC had resolved that the reasonableness of decisions was to be
determined with reference
to:
‘
the nature of the
decision, the identity and expertise of the decision-maker, the range
of factors relevant to the decision, the
reasons given for the
decision, the nature of the competing interests involved and the
impact of the decision on the lives and
well-being of those
affected.’
[16]
[26]
Looking
into the judgment of
Securitas
in the Labour Appeal Court, an application for a review of an
arbitration award was dismissed. Kathree-Setiloane AJA referred to
the judgment in the Labour Court in which the following was said:
before the arbitrator concluded that the employees’ dismissals
were procedurally and substantially unfair, the arbitrator dealt
exhaustively with evidence and facts before him. It cannot be
argued
that he acted in contravention of his duties as an arbitrator or that
he went above and beyond his powers. Therefore, the
decision of the
arbitrator was a decision that a reasonable person would reach.
Furthermore, it is a decision that was reasonable
and warranted by
the proof and facts brought forward. With that being said, the Court
has no reason to interfere.
[17]
[27]
The
reasonableness standard is applicable because the emphasis is on the
commissioner’s subjective reasons for his findings
that led him
to a said conclusion, rather than the jurisdictional fact’s
objective existence. A court on review can accordingly
set aside a
decision if the commissioner, in coming to a conclusion that
committed one or more of the section 145 grounds for review.
[18]
[28]
The outcome
of
Sidumo
was clearly informed by legislative intent, and read with contextual
factors specific to CCMA proceedings. The CC declared the
rule that
reasonable decisions may differ from one decision-maker to the next.
“
This
is one of those cases where the decision-makers acting reasonably may
reach different conclusions. The LRA has given that decision-making
power to a commissioner”
.
[19]
Application
of the law to the facts
Reasonableness
as a test for review.
[29]
Under this matter, the issue before this Court is the following:
(a)
Is the decision reached by the arbitrator one that a reasonable
decision-maker could not reach?
[30]
Under this standard, courts must assess the reasonableness of a
Commissioner’s award
by establishing whether the decision is
one that a reasonable decision-maker could not reach.
[31]
Different
from Conciliation, whereby parties are obliged to decide how they
would agree to resolve their dispute, Arbitration grants
the
decision-making powers to the arbitrator.
[20]
If a commissioner fails to apply his/her mind properly to material
facts and consequently narrows the inquiry by incorrectly construing
the scope of an applicable rule, he/she will not fully and fairly
determine the case before him/her. In addition, it held that
such a
decision will be tainted by dialectical unreasonableness, which
results in a lack of rational connection between the decision
and the
evidence and, hence, a likely unreasonable outcome.
[32]
It must be pointed out that if the reviewing court comes to a
conclusion that the commissioner
has committed misconduct or a gross
irregularity or has exceeded his powers in terms of section 145(2) of
the LRA because the decision
is not justifiable in terms of the
reasons given then the arbitration award is reviewable and to be set
aside.
[33]
The Commissioner, as an impartial and independent person, exercised
reasonableness taking
into account all facts and evidence presented
to him. The Commissioner, in addition to this, applied his mind and
exercised what
was stemmed in the
Sidumo
case. He further, in
evaluating the circumstances of this case upheld the constitutional
values and LRA goals of affording everyone
rights to fair labour
practices. The commissioner’s reasoning process, defective or
not, should not be the determining factor
to warrant a review of his
arbitration award.
[34]
From the record filed and pleadings before me, I am satisfied that
the Commissioner’s
award was correct and justified in finding
and outcome in light of the evidence that was placed before him by
the parties in the
arbitration proceedings.
[35]
In the circumstances, I make the following order:
Order
1.
The CCMA award is confirmed, the dismissal of the 23 (twenty-three)
employees by the Applicant was procedurally and substantially unfair.
2.
This application is dismissed.
3.
There is no order as to costs.
LM.
Morgan
Acting
Judge of the Labour Court of South Africa
Appearances
For the Applicant:
Advocate D
Groenewald
Instructed by:
Van der Smit
Attorneys
For the
Respondents:
Mr N Voyi
Instructed by:
Voyi Inc.
[1]
Act
66 of 1995, as amended.
[2]
Section
145 provides:
‘
145.
Review of arbitration awards
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under
the auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award-
(a)
within six weeks of the date that the award was served on the
applicant, unless
the alleged defect involves the commission of an
offence referred to in Part 1 to 4, or section 17,20 or 21 (in so
far as it
relates to the aforementioned offences) of Chapter 2 of
the
Prevention and Combating of Corrupt Activities Act, 2004
; or
(b)
if the alleged defect involves an offence referred to in paragraph
(a), within six
weeks of the date that the applicant discovers such
offence.
(2)
A defect referred to in subsection (1), means-
(a)
that the commissioner-
(i)
committed misconduct in relation to the duties of the commissioner
as an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings;
or
(iii)
exceeded the commissioner's powers; or
(b)
that an award has been improperly obtained
[3]
Act
9 of 2018.
[4]
Labour
Relations Act, No. 66 of 1995
– Schedule 8 CODE OF GOOD
PRACTICE: DISMISSAL.
[5]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and
Others
[2007] ZACC 22
; (2007) 28 ILJ 2405 (CC) at para 110.
[6]
Ibid.
[7]
Constitution
of the Republic of South Africa, 1996.
[8]
Section 185(a) to (b) of the LRA.
[9]
Andrew
Levy’s
Labour
Law in Practice- a guide for South African Employers 2010
(Macmillan,
Cape Town 2010).
[10]
Phungula “
A
Critical Review of labour commissioners' dilemmas when dealing with
workplace disputes in South Africa”
(2024)
Vol. 12 (2) Journal of Law and Sustainable Development.
[11]
Botma
The
role of reasonableness in the review of labour arbitration awards
(Part 1)
(2009) Obiter.
[12]
Securitas
Specialised Services (Pty) Ltd v Commission for Conciliation
Mediation and Arbitration and Others
(Securitas)
[2021] ZALAC 5
; (2021) 42 ILJ 1071 (LAC) at para 9.
[13]
[2004]
ZACC 15; 2000 (4) SA 490 (CC).
[14]
Fergus
From
Sidumo to Dunsmuir: The test for review of CCMA Arbitration awards.
University
of Cape Town, 2013.
[15]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
ZACC 22
; (2007) 28 ILJ 2405 (CC) at para 164.
[16]
Bato
Star
at
para 45.
[17]
Securitas
Specialised Services (Pty) Ltd v Commission for Conciliation
Mediation and Arbitration and Others
[2021] ZALAC 5
; (2021) 42 ILJ 1071 (LAC).
[18]
Botma
The
role of reasonableness in the review of labour arbitration awards
(Part 1)
(2009) Obiter.
[19]
Fergus
From
Sidumo to Dunsmuir: The test for review of CCMA Arbitration awards.
University
of Cape Town, 2013.
[20]
Phungula “
A
Critical Review of labour commissioners' dilemmas when dealing with
workplace disputes in South Africa”
(2024)
Vol. 12 (2) Journal of Law and Sustainable Development at p6.