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[2016] ZALAC 14
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Ethekwini Municipality v Hadebe and Others (DA17/14) [2016] ZALAC 14; [2016] 8 BLLR 745 (LAC) (10 May 2016)
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Not
reportable
Case no: DA 17/14
ETHEKWINI
MUNICIPALITY
Appellant
and
LOVEDALE MODERATE Z.
HADEBE
First Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
Second Respondent
HUMPHREY NDABA
N.O.
Third Respondent
Heard:
10 September 2015
Delivered:
10 May 2016
Coram:
Tlaletsi DJP, Ndlovu JA
et
Makgoka AJA
Summary:
Review of an arbitration award – proper approach restated -
employee reinstated on arbitration
after dismissal –
substantive fairness – inconsistency in applying discipline. S
193 of the LRA – whether employee
entitled to reinstatement –
dismissal unfair only because of the inconsistency rule –
factors to be considered for
reinstatement under such circumstances.
Reinstatement and compensation – whether they can be ordered in
the same relief or
only in alternative of one another – proper
interpretation of section 193(2) of the LRA.
JUDGMENT
MAKGOKA
AJA
Introduction
[1]
This is an appeal against the whole of the
judgment and order of the Labour Court (Mhlongo AJ) handed down on 11
June 2014, in terms
of which the dismissal of the first respondent
(Ms Hadebe) by the appellant (the municipality) was found to be
substantively unfair.
The Labour Court ordered that Ms Hadebe be
reinstated to her previous position, with compensation. The Labour
Court also ordered
the municipality to pay the costs of the review
application on an attorney and client scale. The appeal is with leave
of the Labour
Court, which was granted on 5 November 2014. The appeal
is directed against the order of reinstatement, and the costs order
made
against the municipality.
The Parties
[2]
The appellant is a municipality established
in accordance with
s 12
of the
Local Government: Municipal Structures
Act 117 of 1998
, and which, in terms of s 2(d) of the Local
Government: Systems Act 32 of 2000, has a separate legal personality.
Ms Hadebe is
an erstwhile employee of the municipality. The second
respondent is a dispute resolution body established in terms of the
Labour
Relations Act 66 of 1995 (the LRA). The third respondent (the
arbitrator) an appointed panellist of the second respondent,
conducted
arbitration proceedings under the auspices of the second
respondent.
The facts
[3]
The facts are simple. Ms Hadebe was
employed by the municipality in 1999, in a unit known as Water and
Sanitation. In 2003, she
was appointed as a senior buyer, being
responsible for, among others, the procurement of goods from
suppliers in accordance with
the municipality supply chain management
policy. An internal audit into the affairs of the sanitation unit of
the municipality
for the period July to October 2006 revealed that
there were several breaches of the supply chain management policy.
[4]
The auditors recommended disciplinary
action against certain employees, including Ms Hadebe. She was
suspended on 20 November 2007.
In January 2008, the municipality
internally charged Ms Hadebe with misconduct, and called on her to
answer allegations of numerous
breaches of the supply chain
management policy. She faced a total of nine charges, but was
convicted of eight of those charges,
as she was acquitted on charge
3. She was dismissed on 27 March 2008.
[5]
She appealed to the appeal tribunal, which
appeal was unsuccessful, as, on 2 July 2008,
the appeal tribunal confirmed her
dismissal. Dissatisfied with that decision, Ms Hadebe referred an
unfair dismissal dispute to
the South African Local Government
Bargaining Council (the second respondent) for conciliation, and on
failure thereof, for arbitration.
The arbitration was conducted by an
arbitrator who could not continue with the arbitration, and the
arbitration had to start afresh
before the third respondent (the
arbitrator).
The arbitration proceedings
[6]
A total of eight witnesses testified on
behalf of the municipality during the arbitration, while Ms Hadebe
testified in her own
case and did not call any witnesses. I shall
refer briefly to the three charges that Ms Hadebe was ultimately
found guilty of by
the arbitrator. Charge 1 involved the purchase of
shade cloth from one supplier at a higher price without quotation,
whereas the
same goods could have been procured from another supplier
who, as per the municipality point system, was the most “responsive
tender”. The result was that the municipality allegedly
incurred an additional cost of R11 685.
[7]
In charge 2, she was alleged to have
cancelled an order from one supplier, citing an over-supply of the
commodity in stock, only
to replace it with another supplier a day
later, without obtaining the necessary quotations from other
suppliers. In charge 5,
Ms Hadebe was alleged to have unnecessarily
increased orders of roof screws, plastic cups and wooden pegs,
thereby creating an
unnecessary over-supply of those goods, during
the period August 2005 to March 2006. In all three charges, Ms Hadebe
was alleged,
to have, among others, failed to conduct herself with
honesty and integrity, and to perform her tasks diligently.
[8]
In her evidence, Ms Hadebe raised, among
others, the issue of inconsistency. She pointed out that whereas the
internal audit report
also implicated another employee, Ms Connie
Mkhize (Ms Mkhize), she was the only one charged with misconduct.
The auditors
had recommended that action be taken against Ms Mkhize
on suspicion of colluding with suppliers. The municipality lost
R375 000
due to “cover quoting” implicating her.
It was common cause that no action was taken against Ms Mkhize.
Instead,
she was promoted to the position of senior buyer, a position
previously held by Ms Hadebe, after the latter was dismissed. Thus,
she accused the municipality of inconsistency in the application of
discipline to its employees.
[9]
In this regard, one of the witnesses who
testified on behalf of the municipality in the arbitration, Mr Neal
McLeod, stated that
a strategic decision was taken by the
municipality to first initiate criminal and civil proceedings against
Ms Hadebe, and depending
on the outcome thereof, revisit Ms Mkhize’s
position. Initially, it was thought that Ms Hadebe had influenced Ms
Mkhize,
or that there was collusion between them. It was only when
preparing for the arbitration, and perusing the relevant files that
he discovered that nothing had been done regarding Ms Mkhize.
The arbitration award
[10]
On 23 April 2012, the arbitrator issued an
award, in terms of which Ms Hadebe was found guilty only of charges
1, 2 and 5. Unlike
the presiding officer in the internal disciplinary
hearing, the arbitrator found Ms Hadebe not guilty of charges 4 and
9. He also
concluded that charges 6, 7 and 8 were duplication of
charges 1, 2 and 5, and should be considered as part of those
charges.
[11]
In his award, the arbitrator considered the
collective agreement concluded between the municipality and its
employees, which enjoins
the municipality to act consistently and
fairly with regard to matters of discipline. The arbitrator further
made reference to
the code of good practice dealing with dismissals,
and observed that as a general rule, fairness required that like
cases be dealt
with alike, whether in the consistent enforcement of a
rule or in the imposition of a penalty.
[12]
On
the above considerations, the arbitrator concluded that there was
nothing preventing the municipality from charging Ms Mkhize
once it
realised that she should have been disciplined. The arbitrator
further observed that, instead, she had been promoted to
the position
initially held by Ms Hadebe, and thus benefitting by occupying a
position she could not occupy on merit whilst Ms
Hadebe was still
employed. As a result, the arbitrator found Ms Hadebe’s
dismissal substantively unfair on the basis of this
inconsistency.
With regard to the procedural fairness of the dismissal, the
arbitrator found no merit in the contentions by Ms
Hadebe of bias on
the part of the chairperson of the disciplinary hearing, and found
that the dismissal was procedurally fair.
Having made those findings,
the arbitrator proceeded to consider what an appropriate remedy would
be under the circumstances, regard
being had to the provisions of s
193
[1]
of the LRA.
[13]
The arbitrator considered that the order of
reinstatement would be inappropriate. In reaching that conclusion,
the arbitrator took
the following factors into consideration: the
nature of the offences Ms Hadebe had been found guilty of; that she
did not demonstrate
any remorse for her conduct; that she had
conceded that the relationship at work was no longer good, which
point was further confirmed
by her union representative at the appeal
hearing; that the trust relationship had broken down in the buying
section and that Ms
Hadebe was prepared to accept reinstatement
without back-pay to any other position. The arbitrator accordingly
granted Ms Hadebe
compensation in the amount equivalent to nine
months’ remuneration, calculated at her monthly salary of
R9 133.72, which
adds up to a sum of R82 203.48. The
arbitrator considered this compensation to be just and equitable. The
prayer for reinstatement
was refused, and the arbitrator made no
order as to costs.
Review
application in the Labour Court
[14]
Ms
Hadebe approached the Labour Court in terms of s145
[2]
of the LRA seeking to review and set aside the award by the
arbitrator on the basis that it was not one which a reasonable
decision-maker
could have made. She contended that the arbitrator was
obliged to order her reinstatement once he had found that the
dismissal
was substantively unfair, unless any of the factors
referred to in s 193(2) were applicable. It was further submitted
that the
municipality did not lead any evidence that the trust
relationship between the parties had irretrievably broken down. She
argued
that, on the contrary, there was evidence that she had a good
relationship with her erstwhile manager and his successor. The
municipality
opposed the review application, and supported the award
by the arbitrator.
[15]
It must be stated at the outset that in the
review application, Ms Hadebe did not challenge the finding of the
arbitrator that her
dismissal was substantively unfair only due to
inconsistency. She also did not join issue with the findings of lack
of honesty
and integrity inherent in those charges which she was
found guilty of. She merely sought to have the awarded varied with an
order
that she should have been reinstated to her employment on the
same terms and conditions that applied to her employment prior to
her
dismissal.
[16]
In its judgment, the Labour Court observed
that it would only interfere with the decision of the arbitrator only
in an instance
where the arbitrator, in carrying out his/her duties,
fails to apply the requisite standard of reasonableness. Accordingly,
the
Labour Court concluded that the reasonableness of the
arbitrator’s decision had to be assessed with reference to the
principles
governing dishonesty; the principles governing
inconsistency in the application of discipline by the municipality;
and the alleged
failure by the arbitrator to apply his mind to the
facts and the evidence before him. With regard to dishonesty, the
Labour Court
observed that all three charges, of which Ms Hadebe had
been found guilty of, had an element of dishonesty, thus underscoring
the
seriousness of the charges. The Labour Court could not find fault
with the arbitrator’s finding on the issue of the unfairness
of
the dismissal due to inconsistency.
[17]
As to the contention by Ms Hadebe that the
award was reviewable for unreasonableness because the arbitrator had
not reinstated her,
despite finding the dismissal to have been
substantively unfair, the Labour Court said:
‘
The
decision reached by the commissioner on not re-instating the
applicant after taking into consideration that the dismissal was
substantively unfair, only due to inconsistency, was because the
applicant was not entirely without blame in this matter. Secondly,
the applicant has been out of work for more than four years. Section
193(1) of the LRA provides for three remedies for unfair dismissal,
i.e re-instatement, re-employment or compensation. An order of
re-instatement restores the status
quo
ante
.
The re-employment means that it would be in the discretion of the
employer to re-employ him/her to the same or different position.
It does appear anomalous that section 193(2)(b) (sic) specifically
gives the court or the arbitrator the power to order the employer
to
re-employ the employee, either in work in which the employee was
employed before the dismissal or in other reasonable (sic)
suitable
work on any terms and from any date not earlier then (sic) the date
of dismissal, yet it is silent on the terms of an
order to reinstate.
That must be so and is designed to place the employee back into the
position that he/she occupied before dismissal.
But does that mean an
arbitrator does not have the power to re-instate an employee and yet
to order the employer to place that
employee in a different position?
Surely, that does not preclude such an order. The commissioner may
make an appropriate arbitration
award in terms of the Act including
but not limited to, an award that gives effect to the provisions and
primary objects of the
Act. One of those objects is the effective
resolution of labour disputes, in terms of section 138(9) of LRA. I
am of the view that
(the) applicant should have been re-instated to
the same or similar position that she held before dismissal since
Connie Mkhize
is still in the same department which she occupied’
[18]
The Labour Court went on to make the
following order:
‘
1
The applicant must be re-instated ‘without back pay’ to
the position
that she occupied before dismissal or be placed to
another position which is equivalent to the position she occupied
before dismissal;
2.
The
third respondent is ordered to pay the applicant compensation as per
the arbitration award;
3.
The
third respondent must pay the applicant’s costs on an attorney
and client scale.’
[19]
Although not stated in explicit terms, it
should be accepted that the effect of the above order was that the
Labour Court reviewed
and set aside the award made by the arbitrator
and substituted it with the order mentioned above. The municipality
appeals against
this order on three grounds. First, that the Labour
Court erred in granting Ms Hadebe both reinstatement and compensation
in circumstances
where an order for reinstatement is inconsistent
with an award of compensation. The second ground of appeal is that
the Labour
Court erred in granting reinstatement in light of the
arbitrator’s finding that the dismissal was substantively
unfair only
because of inconsistency of discipline on the part of the
municipality. The third ground of appeal concerns the costs order
made
by the Labour Court. Before I consider these arguments, I deem
it prudent to set out the proper approach for reviewing the awards
made by arbitrators.
The test on review
[20]
The
test for review of arbitration awards finds jurisprudential
expression in a number of judgments, in particular the seminal
judgment of the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines and Others (Sidumo
)
[3]
in which, the court held that s 145 is now suffused by the
constitutional standard of reasonableness. The question therefore is
whether the decision reached by the commissioner is one that a
reasonable decision-maker could not reach. Applying this test, the
Court explained, will give effect not only to the constitutional
right to fair labour practices, but also to the right to
administrative
action which is lawful, reasonable and procedurally
fair.
[4]
[21]
With regard to the practical approach to be
adopted by commissioners and arbitrators in considering the sanction
of dismissal, the
Court laid down the following guidelines:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee's conduct,
whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on
the employee and
his or her long-service record. This is not an exhaustive list…
To sum up. In terms of the LRA, a
commissioner has to determine
whether a dismissal is fair or not. A commissioner is not given the
power to consider afresh what
he or she would do, but simply to
decide whether what the employer did was fair. In arriving at a
decision a commissioner is not
required to defer to the decision of
the employer. What is required is that he or she must consider all
relevant circumstances.”
[5]
[22]
The
test enunciated in
Sidumo
was applied by this Court in subsequent cases. In
Fidelity
Cash Management Service v CCMA and Others (Fidelity),
[6]
this Court pointed out that the reasonableness of the decision is
determined without enquiring into the fairness of such decision.
That
task lies, statutorily, with the commissioner. The test is therefore
a stringent one to ensure that awards by commissioners
are not
lightly interfered with.
[7]
See also
Bestel
v Astral
[8]
where caution was expressed not to blur the distinction between an
appeal and a review, i.e. unlike in an appeal, in review proceedings
the question is not whether the decision is correct, but whether it
can be justified.
[9]
[23]
After
an initial period of uncertainty as a result of the emergence of the
“process-related irregularities” jurisprudence,
[10]
the proper application of the test was neatly summarised by the
Supreme Court of Appeal in the path-finding judgment of
Herholdt
v Nedbank (Herholdt)
as
follows
:
[11]
‘
[A]
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds is 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.’
[12]
[24]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others (Gold Fields),
[13]
this Court pointed out that where a gross irregularity in the
arbitration proceedings is alleged, the enquiry extends to whether
the result was unreasonable, in particular, whether the decision
arrived at by the arbitrator is one that falls within a band of
decisions to which a reasonable decision-maker could come on the
available material.
[14]
[25]
Therefore, the upshot of both
Herholdt
and
Gold Fields
is that a process failure on the part of a commissioner does not in
itself render an award unreasonable. In order for it to be
unreasonable, it has to be established that such failure caused the
result of the award to be unreasonable. Thus, a process failure
is of
no consequence if the final result of the award is, nevertheless,
capable of reasonable justification.
[26]
It was argued on behalf of the municipality
that in reviewing and setting aside the arbitration award, the Labour
Court failed to
apply the test as set out in
Sidumo
,
read with
Herholdt
and
Gold Fields
(referred to earlier in paras 14 – 19 above) in that it failed
to determine whether the outcome reached by the arbitrator
was not
one that could reasonably be reached on the evidence and other
material properly before him.
[27]
In
Sidumo
above, the Constitutional Court held that the commissioner has to
consider the full extent of the relevant personal and surrounding
circumstances which includes the nature, the importance and purpose
of the rule breached, the nature and extent of the breach,
the
reasons for the imposition of the sanction of dismissal, the basis of
the challenge thereto, the harm or potential harm caused
or likely to
be caused by the breach of the rule, further conduct, including
disingenuousness surrounding the commission of the
breach and the
disciplinary and arbitration processes, a complete lack of remorse
and re-commitment to the values of the appellant,
the effect of the
breach on the trust relationship and the capacity for the
resuscitation of a workable employment relationship,
the effect of
the dismissal on the employee and his or her service and disciplinary
record.
[15]
[28]
In the present case, in reaching the
conclusion he came to, the arbitrator carefully took into account the
relevant circumstances
referred to in the passage referred above. I
have already set out in detail (in paras 10 - 13 above) the factors
that the arbitrator
took into account when he concluded that
reinstatement was not an appropriate remedy in the circumstances. The
Labour Court did
not seriously consider those factors, except for a
sweeping statement, without much substantiation, that “the
commissioner
(sic) was at fault since the length of time cannot
prevent an employee from being re-instated or re-employed because
he/she has
been fighting his or her case with the employer.”
[29]
With
respect to the learned Acting Judge, and as correctly argued on
behalf of the municipality, this is a conflation of the factors
relied on by the arbitrator to determine the
quantum
of compensation with those which militated against an order for
reinstatement. The ultimate question is whether the conclusion
reached by the arbitrator is not one which a reasonable arbitrator
could reach. I am firmly of the view that the conclusion reached
by
the arbitrator “falls within the band of decisions that a
reasonable decision-maker could make on the facts available
to
him’
[16]
and therefore, not reviewable. The Labour Court accordingly
misdirected itself in concluding the contrary, and therefore, on this
basis alone, the appeal has to succeed.
[30]
Having
reached this conclusion, it is not necessary to consider the other
aspects argued on behalf of the municipality, namely whether
it was
competent for the Labour Court to order reinstatement and
compensation in the same relief. In any event, that issue was
authoritatively settled by the Constitutional Court in
Equity
Aviation Services v CCMA and Others
[17]
where it was concluded that the remedies in s 193(1)(a) are in the
alternative and mutually exclusive.
[18]
Costs
[31]
There
remains the issue of costs, to which I now turn. As stated earlier in
the introduction, the Labour Court ordered the municipality
to pay
the costs of the review application on a scale as between attorney
and client. The municipality appeals against that order
too. The
general approach to be adopted by a court of appeal when considering
an appeal against costs is trite. The award of costs
and the scale
thereof is a matter within the discretion of the court making the
order.
[19]
The appeal
court will not easily interfere with the exercise of that discretion.
It can only interfere where the discretion was
exercised on a wrong
principle or was capriciously made.
[32]
Put
differently, a court of appeal’s power to interfere is limited
to those cases where the exercise of the judicial discretion
is
vitiated by misdirection, irregularity, or the absence of grounds on
which the court below, acting reasonably, could have made
the order
in question.
[20]
In applying this principle to the present case, it should always be
borne in mind that not only did the Labour Court grant costs
against
a losing party such costs were ordered on a punitive scale of
attorney and client.
[33]
In the present matter, what is immediately
striking about the costs order is that it was not sought by Ms Hadebe
in her review application.
What is more, there is nowhere in the
judgment where the issue of costs is discussed. There is therefore no
basis at all in the
judgment why a costs order was justified. I have
carefully perused the record for any indication which might have
impelled the
learned Judge to make the punitive order of costs. There
is none. The issue of costs, let alone on a heightened, punitive
scale,
was simply never foreshadowed, either in the papers or during
argument. If the learned Judge was of the view that some conduct on
the part of the municipality warranted censure by way of a punitive
costs order, he should have invited the parties to make submissions
on the issue. It is undesirable that a party is penalised in this
manner without being heard.
[34]
I
shall, for completeness sake, refer to the general principles
applicable in the Labour Court as regards costs. This is governed
by
s 162 of the LRA which provides that in making orders for payment of
costs, the Court has to have regard to the requirements
of law and
fairness. In deciding whether to order payment of costs, the court
may take into account, among others, the conduct
of the parties in
proceeding with the matter before the court and during the
proceedings. In
Moloi
and Another v Euijen and Another,
[21]
it was observed that the framework of s 162 supports the proposition
that when making orders of costs, the requirements of law
and
fairness are paramount.
[22]
The requirements of law and fairness are on equal footing, and none
is secondary to the other. See in this regard
Callguard
Security v Transport and General Workers Union and Others
(
T&GWU)
[23]
and
Xaba
v Portnet
.
[24]
[35]
The
rule of practice that costs follow the result does not govern the
making of costs orders in the Labour Court. Such orders are
made in
accordance with the requirements of law and fairness. See in this
regard
MEC
for Finance (KZN) and Another v Dorkin
[25]
where Zondo JP explained the rationale for that approach:
‘
[T]he
norm ought to be that costs orders are not made unless those
requirements (of law and fairness) are met. In making decisions
on
costs orders this court should strive to strike a fair balance
between, on the one hand, not unduly discouraging workers, employers,
unions and employer organisations from approaching the Labour Court
and this court to have their disputes dealt with, on the other,
allowing those parties to bring to the Labour Court and this court
frivolous cases that should not be brought to court. This is
a
balance that is not always easy to strike, but if the court is to
err, it should err on the side of not discouraging parties
to
approach these courts with their disputes…’
[26]
Attorney and client
costs
[36]
The
order of costs on a scale of attorney and client is an extra-ordinary
one which should be reserved for cases where there is
clearly and
indubitably vexatious and reprehensible conduct on the part of a
litigant. It is discernible from a consideration of
the authorities
that where the Labour Court has made a costs order, it has invariably
considered that it was deviating from the
general premise, and
therefore carefully reasoned the basis of such an order.
[27]
Unfortunately, in the present matter, the court did not even state
its reasons for making the costs order. For all of the above
reasons,
the costs order made by the Labour Court falls to be set aside and
replaced with one where no order is made with regard
to the costs of
the review application.
[37]
To sum up. The award made by the
commissioner is not one which a reasonable decision-maker could not
make in the circumstances.
It was therefore not reviewable. The
Labour Court misdirected itself in reviewing and setting it aside. It
erred, similarly, in
the costs order it made. The appeal should
therefore succeed.
[38]
In the result, the following order is made:
1.
The appeal is upheld;
2.
The order of the Labour Court is set aside
and the following is substituted for it:
‘
The
review application is dismissed. No order is made as to the costs’
3.
No order is made as to the costs of the
appeal.
_________________
TM Makgoka AJA
Tlaletsi DJP Ndlovu JA concur in the
judgment of Makgoka AJA
APPEARANCES:
FOR
THE APPELLANT:
Adv. L.R. Naidoo
Instructed by
Hughes-Madondo Inc., Umhlanga Rocks.
FOR
THE FIRST RESPONDENT
:
No appearance
[1]
The
section concerns remedies for unfair dismissal and unfair labour
practice, provides as follows:
(1)
If
the Labour Court or an arbitrator finds that a dismissal is unfair
the court or arbitrator may:
(a)
order
the employer to re-instate the employee from any date not earlier
than the date of dismissal;
(b)
order
the employer to re-employ the employee, either in the work in which
the employee was employed before the dismissal or in
other
reasonably suitable work on any terms and form any date not earlier
than the date of dismissal; or
(c)
order
the employer to pay compensation to the employee.
(2)
The
Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless:-
(a)
the
employee does not wish to be re-instated or re-employed;
(b)
the
circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
(c)
it
is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
(d)
the
dismissal is unfair only because the employer did not follow a fair
procedure.
[2]
Section
145 of the LRA provides:
‘
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 corruption; or
(b)
If the
alleged defect involves corruption, within six weeks of the date
that the applicant discovered the corruption.
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
arbitrator
(ii)
committed a
gross irregularity in the conduct of arbitration proceedings or
(iii)
exceeded the
commissioner’s powers.’
[3]
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others (
2007)
28 IJL 2045; [2007] 12 BLLR 1097; 2008 (2) SA 24; 2008 (2) BCLR 158
(CC).
[4]
At
para 110.
[5]
At
Paras 77-79.
[6]
[2008]
3 BLLR 197 (LAC).
[7]
Fidelity
,
above, at paras 98 and 100.
[8]
Bestel
v Astral Operations and Others
[2011] 2 BLLR 129 (LAC).
[9]
At
para 18.
[10]
In
terms of this approach,
Sidumo
was
interpreted to create a large scope of review of arbitration awards
on the mere existence of any proven irregularities, dialectical
or
otherwise, committed in the making of the arbitration award. This
was propounded in cases like
Ellerine
Holdings Ltd v CCMA and others
(2008) 29 ILJ 2899 (LAC);
Woolworths
(Pty
)
Ltd
v CCMA and Others
[2011] 10 BLLR 963
(LAC);
Afrox
Healthcare Ltd v CCMA and Others
[2012] 7 BLLR 649
(LAC);
Herholdt
v Nedbank Ltd
[2012]
9 BLLR 857 (LAC).
[11]
[2013]
11 BLLR 1074 (SCA).
[12]
At
para 25.
[13]
[2014]
1 BLLR 20 (LAC).
[14]
At
paras 14 -15.
[15]
Sidumo
at para 78.
[16]
As
observed in
Gold
Fields
,
above, at paras 14-15.
[17]
[2008]
BLLR 1129
(CC) at para 42.
[18]
Equity
Aviation
at para 42.
[19]
Protea
Assurance Co Ltd v Matinise
1978
(1) SA 963
(A) at 976H;
Minister
of Prisons and Another v Jongilanga
1985 (3) SA 117
(A) at 124B.
[20]
See
Attorney-General,
Eastern Cape v Blom
1988 (4) SA 645
(A) at 670
D
– E.
[21]
(1999)
20 IJL (LAC).
[22]
At
para 20.
[23]
(1997)
18 ILJ 380 (LC).
[24]
(2000)
21 IJL 1739 (LAC).
[25]
2008)
29 ILJ 1707 (LAC) at para 17.
[26]
At
para 17.
[27]
See
for example
Rudman
v Maquassi Hills Local Municipality and Others
((2014) 35 ILJ 765 (LC);
New
Justfun Group (Pty) Ltd v Turner and Others
(J786/14) [2014] ZALCJHB 177 (14 May 2014).