About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2016
>>
[2016] ZALAC 93
|
|
XSTRATA SA (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA 50/2014) [2016] ZALAC 93 (8 September 2016)
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JA 50/2014
XSTRATA
SOUTH AFRICA (PTY) LTD
Appellant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
First Respondent
NTIMBANA
N.O.
Second Respondent
NATIONAL UNION OF
MINEWORKERS
Third Respondent
LUCKY
NDLANGAMANDLA
Fourth Respondent
Heard:
20
August 2015
Delivered: 08
September 2016
Summary: Review of a
CCMA award – dismissal - employee given final written warning
for the same conduct – effect thereof
- the general approach to
reviews restated – whether the CCMA Commissioner properly
considered all the evidence – whether
the Labour Court
correctly applied the jurisprudential test on review.
Coram:
Waglay JP, Ndlovu JA
et
Makgoka AJA
JUDGMENT
MAKGOKA
AJA
[1]
This is an appeal against the judgment of
the Labour Court (Steenkamp J) dismissing the appellant’s
review application of
an award made by the second respondent, a
commissioner of the Commission for Conciliation Mediation and
Arbitration (CCMA). The
commissioner had concluded that the dismissal
of the fourth respondent (Mr Ndlangamandla) was substantively unfair
on the basis
that the sanction of dismissal was too harsh in the
circumstances of the case. On review of it by the appellant, the
Labour Court
dismissed the review application and made no order as to
costs. The appeal, which is unopposed, is with leave of this Court.
[2]
The brief factual background is this. The
appellant operates mining activities in Witbank. Mr Ndlangamandla was
employed by the
appellant as a full-time co-ordinator for the third
respondent (NUM) at its Witbank office. Prior to that, Mr
Ndlangamandla had
been employed by the appellant as an electrician.
Mr Ndlangamandla’s position as a full-time co-ordinator
required of him
to access the appellant’s premises and
operations, including being permitted to go underground, in order to
perform his functions.
[3]
To be granted access into the appellant’s
premises and operations, Mr Ndlangamandla was required to possess a
valid medical
bureau certificate (referred to in the mining industry
parlance as the “red-ticket”). This is to confirm that he
has
undergone the necessary medical examinations, induction and first
aid training (the MIF). The red ticket was renewed in the normal
course by the employees undergoing the MIF annually and each time
they returned from leave. Mr Ndlangamandla had undergone all
the
necessary tests since his employment with the appellant, but had not
submitted himself for testing since 2009.
[4]
As a result, in March 2011 he was subjected
to a disciplinary enquiry, at which he was charged with
non-compliance with MIF in that
he had disregarded bookings made for
him to attend MIF. On 5 March 2011, he was found guilty. Before a
sanction could be issued
by the chairperson of such an enquiry, an
agreement was reached with NUM (Mr Ndlangamandla’s trade union)
that, instead of
a dismissal, and in an attempt to promote the
relationship building, Mr Ndlangamandla be issued with a final
written warning. As
part of that agreement, Mr Ndlangamandla had to
immediately undergo MIF as requested. Mr Ndlangamandla signed for his
acceptance
of the final written warning and related conditions.
[5]
The appellant scheduled Mr Ndlangamandla to
undergo an MIF on 7 April 2011. He attended the medical centre where
the test was to
be conducted, but left without undergoing the test.
As a consequence of that, on 24 May 2011, the appellant again charged
Mr Ndlangamandla
with non-compliance with MIF in that he had
disregarded a booking made for him to attend MIF. A disciplinary
hearing was initially
scheduled for 8 June 2011. Mr Ndlangamandla
failed to attend without any explanation. The hearing was rescheduled
to 10 June 2011,
on which occasion, Mr Ndlangamandla could not attend
as he had been booked off sick.
[6]
The hearing was again re-scheduled for 14
June 2011 when Mr Ndlangamandla failed to attend without any
explanation. The disciplinary
enquiry proceeded in the absence of Mr
Ndlangamandla. At the conclusion of the hearing, Mr Ndlangamandla was
found guilty and the
sanction of dismissal was imposed. Aggrieved
with that outcome, Mr Ndlangamandla launched an internal appeal
process on 17 June
2011, in which he challenged the sanction of
dismissal. That appeal was unsuccessful, and the decision to dismiss
him was confirmed
on 30 June 2011.
[7]
Still dissatisfied with the outcome of the
internal appeal, Mr Ndlangamandla referred the dispute to the CCMA
for conciliation,
and failing that, arbitration. Conciliation having
failed, the dispute was referred to the commissioner, who on 29 March
2012 issued
an award. The commissioner, having accepted that Mr
Ndlangamandla’s guilt had been established on a balance of
probabilities,
concluded, however, that the dismissal was
substantially unfair on the basis that the sanction of dismissal was
too harsh in the
circumstances. The Commissioner ordered the
appellant to reinstate Mr Ndlangamandla, albeit without back pay. He
also ordered Mr
Ndlangamandla to submit to an MIF within 14 days from
2 April 2012.
[8]
On 11 May 2012, the appellant launched
review proceedings in the Labour Court against the commissioner’s
award. In its review
application, the appellant raised several
grounds of review. Without stating each one of them separately, it
suffices to say that
the main thrust of those grounds is that the
commissioner had ignored the materially relevant evidence in his
award. It is said
that the decision to order the reinstatement is not
one which a reasonable decision-maker could not have arrived at in
the circumstances.
[9]
Mr Ndlangamandla launched a cross-review
against the commissioner’s finding that he had breached the
rule or standard by not
submitting himself to an MIF. He argued that
the commissioner had committed a reviewable irregularity in not
finding that there
was no policy, rule or contract of employment that
he had breached. Mr Ndlangamandla’s stance was that his
contract of employment
only required of him to attend a medical
examination when he was initially appointed and when he returned from
annual leave. Since
he was not returning from annual leave, so was
the argument, he did not have to undergo MIF.
[10]
The Labour Court dismissed the
counter-review on the basis that the commissioner’s conclusion
that Mr Ndlangamandla had breached
the rule requiring medical testing
was not an unreasonable one and was thus not open to review. The
effect of the dismissal of
the counter-review was that the Labour
Court, like the commissioner, found that Mr Ndlangamandla’s
guilt had been established.
The only issue for determination before
the Labour Court was the fairness of the sanction of dismissal.
[11]
With regard to that issue, the Labour Court
found that in concluding that the sanction of dismissal was too
harsh, the commissioner
had taken proper account of all the relevant
facts, including the fact that Mr Ndlangamandla was already on a
final written warning
for the same type of conduct for which he was
charged and ultimately dismissed. The Labour Court noted that the
commissioner had
acknowledged this fact and took it into account, and
in considering the sanction of dismissal, the commissioner had regard
to all
the relevant factors. It concluded that the award made by the
commissioner was one which a reasonable Commissioner could make. The
appellant joins issue with that finding.
[12]
The appellant raises four grounds of
appeal. First, it is contended that the Labour Court erred in
concluding that the commissioner
had taken proper account of the
effect of Mr Ndlangamandla’s final written warning on the
graduation of discipline in his
determination of the appropriateness
of the sanction of dismissal. Second, it argued that the Labour Court
erred in concluding
that the personal and surrounding circumstances
in the case were not such that they rendered the commissioner’s
finding unreasonable.
Third, it submitted that the Labour Court
misdirected itself by holding that the importance of the rule
breached and the reasons
for its introduction also did not render the
commissioner’s findings on the appropriateness of sanction
unreasonable as the
personal circumstances (Mr Ndlangamandla being
based in the NUM offices) were taken into account and a sanction of
“unpaid
suspension” was imposed by the commissioner.
Lastly, it contended that the Labour Court erred in concluding that
the reference
by the commissioner to the
Nampak
case, despite it not being clear of its
relevance, did not serve to render the entire award unreasonable.
[13]
Before I consider the merits of the appeal
against the Labour Court’s judgment, it is prudent to first set
out the legislative
and jurisprudential framework within which such
review has to take place. Arbitration awards issued by commissioners
of the CCMA
and arbitrators of the bargaining councils are
reviewable, among others, in terms of s 145(2)(a) of the Labour
Relations Act 66
of 1995 (the LRA). Arbitration awards may be
reviewed if the commissioner or arbitrator commits misconduct, gross
irregularity
and/or acts in excess of the powers conferred, in the
conduct of the arbitration.
[14]
The test for review of arbitration awards
made under the auspices of the CCMA is now trite and well-settled. It
finds its jurisprudential
foundation in the seminal judgment of the
Constitutional Court in
Sidumo and
Another v Rustenburg Platinum Mines and Others (Sidumo
)
[1]
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.
[2]
[15]
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.’
[3]
[16]
The Constitutional Court further 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.
[4]
[17]
The test enunciated in
Sidumo
was applied by this Court in subsequent cases. In
Fidelity
Cash Management Service v CCMA and Others (Fidelity),
[5]
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 the awards by commissioners
or
arbitrators are not lightly interfered with.
[6]
See also
Bestel v Astral and Others
[7]
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.
[8]
[18]
After an initial period of uncertainty as a
result of the emergence of the “process-related
irregularities” jurisprudence
[9]
the proper application of the test was neatly summarised by the
Supreme Court of Appeal in the path-finding judgment of
Herholdt
v Nedbank Ltd (Herholdt):
[10]
‘
[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.’
[11]
[19]
In
Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (Gold
Fields),
[12]
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 in a band of decisions
to which a reasonable decision-maker could come on the available
material.
[13]
[20]
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.
[21]
I revert to the present case, and in
particular, the grounds on which the judgment of the Labour Court is
assailed. As stated earlier,
one of the grounds of appeal is that the
Labour Court had erred in not concluding that the commissioner had
failed to appreciate
the effect of the final written final warning on
the determination of the appropriate sanction. The nature and effect
of a final
written final warning, was trenchantly explained by this
Court in
NUM v Greenside Colliery
:
[14]
‘
A
final warning… is precisely what the name suggests. It is a
warning that (the employee) will receive no further warnings
but will
be dismissed if he again transgresses. The employer is of course not
bound to carry out the threat, but an employee can
have little ground
for complaint if (the employer) chooses to do so. To hold otherwise
would be to equate a final warning with
any other warning, which
clearly it is not.
’
[15]
[22]
In
Transnet
Freight Rail v Transnet Bargaining Council and Others (Transnet),
[16]
the following was aptly said:
‘
[T]he
dismissal of an employee on a final written warning is consistent
with progressive discipline and, given the seriousness of
the
offence, suspension would amount to a mere slap on the wrist for an
offence which on Fourth Respondent’s own record attracted
a
final written warning in the first instance. Any sanction short of
dismissal would amount to Fourth Respondent not being disciplined
at
all.’
[17]
[23]
In
NUM
and Another v Amcoal Colliery,
[18]
dismissals followed collective misconduct. Those of the offending
employees who were already on final written warnings were dismissed,
while the other employees received a lesser sanction, which was
subsequently reduced by one level in terms of the company’s
progressive disciplinary structure. The dismissed employees did not
have their sanctions reduced, which this Court found to be
fair, and
rejected the contention that the sanction of dismissal should have
also been reduced. This Court pointed out that the
other employees
had disciplinary records that allowed for a lesser sanction than that
initially imposed, which allowed the employer
room to reduce their
sanction. However, with regard to those employees on written final
warning, it left the employer with little
choice but to dismiss them.
Had their sanction (of dismissal) been reduced it would have been to
a final written warning and there
would have been no progression of
discipline at all. This Court reasoned that failure to impose the
sanction of dismissal under
the circumstances would mean that the
employees were not punished for the offence with which they were
charged and found guilty
of.
[24]
The Labour Court found that this finding
was not reviewable as the sanction imposed by the commissioner was
not so unreasonable
that no reasonable arbitrator could have come to
the same conclusion. Therefore, this ground of review (that the
commissioner had
not taken proper account of the effect of a final
written warning) was found to be unmeritorious. The Labour Court
concluded that
the commissioner had taken proper account of all the
relevant factors before him, including the fact that Mr Ndlangamandla
had
already received a written final warning, and postulated it
against the factors to be considered in determining the appropriate
sanction as set out in
Sidumo
.
[25]
It seems that the Labour Court was
persuaded by the mere fact that the commissioner made mention in his
award to the fact that Mr
Ndlangamandla was already on a written
final warning, and that he had taken that into account. In my view,
this fact was mentioned
by the commissioner
en
passant
, without according it due
weight and considering its effect. This is clearly so because, apart
from mentioning it, there is no
indication in the award that the
commissioner in fact considered the effect of the final written
warning in his ultimate decision.
[26]
In concluding that the sanction of
dismissal was too harsh, the commissioner took into account three
factors, namely: the stance
of Mr Ndlangamandla that his
non-compliance with medical testing did not create any hazard because
he was based in the Witbank
office of the union (and therefore did
not have to go underground at the appellant’s mining
operation); the fact that Mr
Ndlangamandla was prepared to submit
himself to an MIF; and that he played a crucial role between the
union and the appellant.
These might all be legitimate factors, but
the commissioner totally ignored the fact that Mr Ndlangamandla was
on a final written
warning. As a result, the commissioner did not
consider this aspect, and in particular, the principle of graduation
of discipline.
[27]
Graduation of discipline is an important
and well-settled principle in labour law, and should be deviated from
only in exceptional
circumstances and for compelling reasons. To my
mind, where an employee is already on a final written warning, that
fact should
be given serious and anxious consideration, obviously in
conjunction with other factors, in determining whether the sanction
of
dismissal is appropriate. The default position should be that the
sanction of dismissal has to be imposed, unless there are compelling
reasons not to do so. Accordingly, a reasonable arbitrator will more
readily impose the sanction of dismissal, unless circumstances
peculiar to the case dictate otherwise. If this is stated too widely,
at the very least, the fact that an employee is on a final
written
warning should feature prominently in the consideration whether the
sanction of dismissal is to be imposed. In the present
case, the
commissioner correctly pitted the final written warning against the
factors to be considered in determining the appropriate
sanction that
were set out in the
Sidumo
judgment, but failed to give the necessary consideration to the
effect of a final written warning.
[28]
As observed in
Transnet
(above, para 36) by seemingly condoning an employee’s conduct,
especially in the face of a final written warning for the
same type
of misconduct, could undermine an employer’s safety policy, and
send a message to the employer’s other safety
critical
employees that the breach of the rule was of no consequence. In the
present case, the fact that Mr Ndlangamandla had a
final written
warning should have received a focussed attention by the commissioner
in determining the fairness of the dismissal.
This amounted to an
irregularity on the part of the commissioner because, by this
failure, he ignored an important factor in making
his determination.
[29]
Failing to apply the sanction of dismissal
in these circumstances has the result of being no punishment at all
for Mr Ndlangamandla.
This is unreasonable, and the commissioner’s
attempt to justify it by saying that the reinstatement without back
pay is punishment,
does not render the sanction, even with that
consideration, reasonable. It remains unreasonable in all the
circumstances. In this
case, anything less than the sanction of
dismissal would render progressive discipline meaningless. By
extending Mr Ndlangamandla’s
final written warning, the
commissioner made a decision that a reasonable decision-maker could
not make under the circumstances.
[30]
In its judgment, the Labour Court said the
following on this aspect:
‘
[I]t
is common cause that (Mr) Ndlangamandla had a final written warning
for the same type of misconduct for which he was charged
and
ultimately dismissed. The company complains that the commissioner did
not appreciate this fact. When one has regard to the
award, the
arbitrator acknowledges that it is common cause the employee had a
final written warning for similar conduct.’
It went on to say:
‘
It
is trite law that a final written warning suggests that an employee
is on the verge of being dismissed should he commit similar
conduct
and found guilty of such.
However, having taken into
account, and in considering the sanction of dismissal, the
commissioner then considers the factors outlined
in
Sidumo
…’
[31]
The Labour Court also concluded that the
commissioner’s finding on the substantive fairness of the
dismissal was not reviewable
in that it could not be said that the
surrounding circumstances were such that they would have led to a
different conclusion. It
found that the commissioner had taken proper
account of the personal and surrounding circumstances (i.e. the fact
that Mr Ndlangamandla
was allegedly under the impression that he was
not required to undergo MIF because he worked at NUM offices in
Witbank, as opposed
to the mine where there were inherent hazards,
and Mr Ndlangamandla’s apparent willingness to submit to an MIF
after the
arbitration. I do not agree.
[32]
The circumstances surrounding Mr
Ndlangamandla’s dismissal have been set out in paras 4 and 5
above, from which it is clear
that he was deliberate in frustrating
any attempts by the appellant to have him attend an MIF. He was
equally obstructive when
the appellant attempted to bring him before
a disciplinary hearing. From the evidence in the arbitration
proceedings, it is clear
that he deliberately undermined the
authority of his immediate seniors. Mr Ndlangamandla was also
disingenuous, both in the arbitration
proceedings and beyond. For
example, in his founding affidavit in the cross-review, he stated
that he was not part of the settlement
reached between NUM and the
appellant that he be given a final written warning and that that
agreement was imposed on him. That
was disingenuous and opportunistic
in the extreme.
[33]
With regard to the nature of the rule
breached, it seems to have been common cause that the purpose of the
medical testing was to
assess the fitness of employees to work and be
able to access various areas of the appellant’s operations. It,
therefore,
concerned safety, and in any event, it is a statutory
obligation placed upon the appellant by the Mine Health & Safety
Act
29 of 1996. To that extent, the rule requiring medical testing
was of utmost importance in the running of the appellant’s
mining operations, and its breach was thus viewed in a serious light
by the appellant.
[34]
It cannot be emphasised enough that safety
is of paramount importance in the mining industry. Mr Ndlangamandla
conceded as much
during the arbitration proceedings before the
commissioner. In
Exactics-Pet (Pty) v
Patella NO and Others,
[19]
the Labour Court found, in a case where an employee had been found to
have breached the zero-tolerance for alcohol rule that the
employee
did not need to be drunk or not able to do his work to be dismissed,
as an employer could not wait for an accident to
happen for it to
dismiss such an employee. Similarly, in the present case, it is
irrelevant that there was no loss of life or injury
as a result of Mr
Ndlangamandla’s breach of the rule.
[35]
The commissioner’s award that Mr
Ndlangamandla submits to a medical examination, is inconsistent with,
and flies in the face
of, the established facts, especially in light
of the commissioner’s own finding that Mr Ndlangamandla had
deliberately frustrated
the appellant’s efforts in that regard.
Mr Ndlangamandla’s offence was a very serious one. There is no
doubt that he
was in a safety critical position which at all times
would require the strict application of the rule that employees in
his position
had to undergo a medical examination. In my view, the
commissioner failed to have a proper appreciation of the importance
of the
strict application of that rule in this matter.
[36]
As to the extent of the breach, Mr
Ndlangamandla’s conduct was flagrant. The commissioner
“accepted” that Mr Ndlangamandla
“had tried every
ground to avoid medical examination…” It ought also to
have been considered that, by virtue
of his position as a full-time
coordinator, Mr Ndlangamandla was the most senior union
representative whose role was, among others,
to build and maintain
good relations between the appellant, its employees and NUM. It was
thus expected of him to be exemplary
to employees on good conduct and
compliance with the appellant’s policies and procedures.
I
f the appellant were seen to be
lenient in the application of this important rule, a wrong message
would be sent to other employees
that they could violate important
rules with impunity. The need to deter other employees from
committing the same misconduct is
a response to risk management and
is as legitimate a reason for dismissal as a breakdown in trust. In
De Beers Consolidated Mines Ltd v CCMA
and Others,
[20]
this Court said:
‘
A
dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be, a sensible operational
response to risk management in the particular enterprise. That is why
supermarket shelf packers who steal small items are routinely
dismissed. Their dismissal has little to do with society's moral
opprobrium of a minor theft; it has everything to do with the
operational requirements of the employer's enterprise’
.
[21]
[37]
To summarise, the commissioner ignored an
important factor in consideration of the award, namely that Mr
Ndlangamandla was on a
final written warning. Had he taken proper
account of all the relevant considerations,
the only
logical conclusion he could have reached was that Mr Ndlangamandla
was liable to be dismissed.
The
commissioner’s arbitration award, therefore, amounts to a
decision that a reasonable decision-maker could not make.
[38]
In the result, the appeal should succeed.
The appeal was unopposed and there is no costs order to be
considered.
[39]
In the circumstances, the following order
is made:
1.
The appeal is upheld;
2.
The order of the Labour Court is set aside
and in its stead, the following is substituted:
“
The
review application succeeds. The award made by the CCMA is reviewed
and set aside and replaced with the following:
‘
The
applicant’s (Mr Ndlangamandla’s) dismissal was both
substantively and procedurally fair.’”
3.
There is no order as to costs
.
TM Makgoka
Acting Judge of the
Labour Appeal Court
Waglay
JP
et
Ndlovu JA concur in the judgment of Makgoka AJA
APPEARANCES:
FOR THE APPELLANT:
Mr
M.B. Masuku
Instructed
by Mervyn Taback
FOR THE THIRD AND FOURTH
RESPONDENTS: No appearance
[1]
Sidumo and Another v Rustenburg
Platinum Mines Limited and Others (
2007)
28 IJL 205 (CC); [2007] 12 BLLR 1097; 2008 (2) SA 24; 2008 (2) BCLR
158 (CC).
[2]
At para 110.
[3]
At paras 78-79.
[4]
Sidumo
at
para 78.
[5]
[2008] 3 BLLR 197 (LAC)
[6]
Fidelity
,
above, at paras 98 and 100.
[7]
Bestel v Astral Operations and
Others
[2011] 2 BLLR 129
(LAC).
[8]
At p
ara 18.
[9]
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).
[10]
Herholdt v Nedbank Ltd
[2013]
11 BLLR 1074 (SCA).
[11]
At para 25.
[12]
Goldfields Mining SA (Pty) Limited
(Kloof Gold Mine) v CCMA
and
Others
[2014] 1 BLLR 20 (LAC).
[13]
At paras 14 -15.
[14]
National Union of Mineworkers v
Greenside Colliery
[1995]
4 BLLR 29 (LAC).
[15]
At para 31.
[16]
Transnet Rail Freight v Transnet
Bargaining Council and Others
(C644/2009)
[2011] ZALCJHB 15 (4
March
2011).
[17]
At para 62.
[18]
National Union of Mineworkers v
Amcoal Colliery
t/a
Arnot Colliery and Another
(2000) 5 LLD 226
(LAC).
[19]
Exactics-Pet (Pty) v Patella NO
and Others
[2006] 6 BLLR
551 (LC).
[20]
De Beers Consolidated Mines Ltd v
Commission for Conciliation, Mediation & Arbitration and Others
(2000) 21 ILJ 1051 (LAC).
[21]
At para 22.