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[2016] ZALAC 57
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Combined Transport Services (Pty) Ltd v Miya and Others (DA15/2014) [2016] ZALAC 57 (25 November 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Not
reportable
Case no: DA 15/2014
COMBINED
TRANSPORT SERVICES (PTY) LTD
A
ppellant
and
BUHLE ZAMOKWAKHE
MIYA
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
ROB McCANN
N.O.
Third Respondent
Heard:
19 November 2015
Delivered:
25 November 2016
Coram:
Waglay JP, Musi JA
et
Makgoka AJA
Summary:
Review of an arbitration award – proper approach - employee
reinstated on arbitration after dismissal
– procedural and
substantive fairness.
JUDGMENT
MAKGOKA
AJA
Introduction
[1]
This is an appeal against the whole
judgment and order of the Labour Court (Cele J) handed down on 11
February 2014, in terms of
which the first respondent was reinstated
to his previous position as a driver at the appellant with
compensation. The Labour Court
also ordered the company to pay the
costs of the suit. The appeal is with leave of this Court, which was
granted on 5 November
2014, after the application for leave to appeal
was dismissed by the Labour Court on 1 August 2014.
[2]
The appellant is a company involved in the
transport industry in Phoenix, Durban, KwaZulu-Natal. The first
respondent (Mr Miya)
is an erstwhile employee of the company. The
second respondent is the Commission for Conciliation and Arbitration
(the CCMA). The
third respondent (the commissioner) is an appointed
commissioner of the CCMA, who conducted the arbitration proceedings
under the
auspices of the CCMA.
[3]
The matter has a long history and taken
inordinately long to be finally adjudicated upon, both in the CCMA
and in the Labour Court.
Mr Miya was dismissed from the employment of
the appellant almost 15 years ago, on 4 June 2001. After three
arbitration awards
and three review applications, this Court is
finally seized of the matter. The circumstances which led to this
extraordinary period
of lack of finality will be apparent during the
course of the judgment. In terms of the arbitration award issued on
17 June 2009,
the dismissal of Mr Miya was confirmed as being
substantively and procedurally fair.
[4]
Aggrieved with that finding, Mr Miya
applied to the Labour Court, seeking to review and set aside that
award in terms of s 145(2)
of the Labour Relations Act 66 of 1995
(the LRA. The Labour Court found in Mr Miya’s favour. It
accordingly reviewed and
set aside the award and in its stead, made
an order of reinstatement from the date of the award in question. The
appellant is unhappy
with the order of the Labour Court, and
challenges the judgment and that order on a number of grounds, which
I shall revert to
more fully later in the judgment.
The facts
[5]
The following is a brief factual background
giving rise to the dismissal of Mr Miya. He was employed by the
appellant as a bus driver
in February 2001. He had to issue tickets
for cash-paying passengers. Other, more regular passengers would
present a pre-paid voucher.
On 30 May 2001, he was on duty, and
during the course of his journeys, he encountered two bus inspectors
who did a routine inspection,
which revealed that there were eight
passengers aboard the bus, without tickets. Mr Miya was eventually
charged with misconduct
for that incident. The disciplinary hearing
was scheduled for 4 June 2001.
[6]
It is in dispute between the parties as to
what actually happened on that day regarding the attendance and
departure of Mr Miya.
According to the appellant, Mr Miya arrived at
the venue of the disciplinary hearing, and later left the proceedings
unceremoniously
once the charge was put to him and he was asked to
plead. Mr Miya, on the other hand, alleges that he was called into an
office
shared by two of the appellant’s senior managers, Mr
Nieuwenhuys and Mr Smith. According to him, he was informed that he
had been dismissed as a result of the ticket incident. He was
thereafter made to sign a document confirming his dismissal. After
receiving advice from his colleagues, he lodged an internal appeal on
the same day. Whatever the true position is, and for whatever
reason
or the manner in which he left, the disciplinary hearing proceeded in
his absence, at the end of which he was found
guilty of the charge
and was dismissed.
The arbitration proceedings
The initial arbitration proceedings
[7]
His internal appeal against his dismissal
having failed, he referred an unfair dismissal dispute to the CCMA
for conciliation, which
failed. He thereafter referred the dispute to
arbitration. Commissioner Maloney conducted the arbitration and
issued an award
on 21 September 2001. It is not clear what the
outcome of that award was, but it was taken on review to the Labour
Court, which
reviewed and set aside that award, and ordered that the
matter be referred back to the CCMA to commence afresh before a
different
Commissioner. This was the first review application. The
arbitration commenced afresh before Commissioner Deyzel who issued an
award on 12 October 2003, in terms of which the dismissal of Mr Miya
was confirmed. Still not satisfied with that outcome, Mr Miya
referred that outcome to the Labour Court for review. This was the
second review application.
[8]
The second review application came before
the Labour Court (Cele AJ). That Court concluded, in its judgment
handed down on 26 June
2006, that the Commissioner had committed “a
serious error” in his evaluation of the evidence tendered
during the arbitration
proceedings. The Labour Court referred the
matter back to the CCMA for a fresh hearing before a different
Commissioner. The arbitration
proceeded before Commissioner Hiralalt,
who issued an award on 26 November 2007. That award was later
rescinded because the hearing
had been conducted in the absence of
the appellant.
Final arbitration proceedings
[9]
Ultimately the matter was set down before
Commissioner McCann. For a number of reasons, which include various
postponements, the
hearing took place between 9 June 2008 and 29 May
2009. In the arbitration proceedings, Mr Miya contended that his
dismissal was
both procedurally and substantively unfair. As to
procedural unfairness, he alleged that he did not receive in advance,
a notice
of a disciplinary enquiry, but was informed on the day of
the dismissal that he was supposed to attend a disciplinary hearing.
Having learnt of his dismissal in that manner, he noted an appeal,
which upheld his dismissal in his absence. With regard to substantive
fairness, Mr Miya argued that he had a valid reason for not issuing
tickets to the eight passengers who were found by the inspectors
to
be without tickets. His reason was that the machine had
malfunctioned, and issued a stream of tickets on one push of a
button.
[10]
The appellant led three witnesses during
the arbitration, namely Mr Raymond Chetty (Mr Chetty) Mr Phillip
Mtolo (Mr Mtolo) and Mr
Henry Nieuwenhuys (Mr Nieuwenhuys). Mr Miya
testified in his own case and did not call any witnesses. It is not
necessary to traverse
the whole evidence. What follows is a summary
of the testimonies of the witnesses. Mr Chetty was the Operations
Manager of the
appellant. His testimony was essentially of a formal
nature, concerning company policy and the operation of the ticket
machine.
Mr Chetty testified mainly about the procedural aspects of
Mr Miya’s appeal process and how it was handled by the
appellant.
[11]
Mr Chetty testified that Mr Miya’s
appeal form, dated 5 June 2001, came to his attention. He responded
to that form by informing
Mr Miya’s union representative of the
appeal date. He made two manuscript annotations on the appeal
notification form. In
the first one, dated 7 June 2001, he noted that
Mr Miya had requested that he should call him on his mobile phone to
indicate the
date and time of the hearing of the appeal. The note
further indicates that Mr Chetty had indeed done that on 7 June 2001,
providing
the date as being Saturday, 9 June 2001 at 08h00. In the
second annotation on the appeal notification letter, made on 9 June
2001,
Mr Chetty noted that Mr Miya had reported at the appeal hearing
at 09h15, instead of the scheduled time of 08h00, and that, after
consultation with a Mr Ngcobo, Mr Miya decided not to proceed with
the appeal, and left the premises. Mr Chetty also testified
with
regard to the substantive fairness of the dismissal. He testified
that the machine would only issue individual tickets and
if more
tickets were needed, the machine operator would have to punch that
information into the machine for each ticket.
[12]
Mr Mtolo is one of the two inspectors who
had encountered eight passengers without cash tickets aboard the bus
driven by Mr Miya
on 30 May 2001. The passengers were six students
and two adults. After such discovery, it was brought to the attention
of Mr Miya,
who did not proffer any explanation for that situation.
Instead, he issued eight replacement tickets to the passengers
without
tickets, which tickets the two inspectors retained for the
purposes of their report to the company. During cross-examination of
Mr Mtolo, it emerged that his evidence was different to the evidence
he gave in the two previous arbitration hearings. This related
to the
replacement tickets. It appeared from the minutes of the hearing in
September 2001 that Mr Mtolo had testified that it was
at the request
of the two inspectors that Mr Miya issued the replacement tickets,
whereas in the second arbitration hearing in
October 2001, he
testified that Mr Miya issued the replacement tickets on his own
initiative. While acknowledging the apparent
discrepancy, Mr Mtolo
suggested that this did not detract from the fact that there were
passengers on the bus without tickets.
According to him, whether the
replacement tickets were issued at their insistence or on Mr Miya’s
own initiative was immaterial.
[13]
Mr Nieuwenhuys was the Outsourcing
Inspector of the appellant during the relevant period. He testified
that Mr Miya had been issued
a final written warning for a similar
offence on 21 May 2001 - just over a week before the incident which
gave rise to the charge
Mr Miya was facing, occurred. In the prior
incident, Mr Miya was found by inspectors to have failed to issue
tickets to seven passengers.
Regarding Mr Miya’s claim that the
machine was faulty, resulting in multiple tickets being issued at a
press of a button,
Mr Nieuwenhuys testified that the machine had a
clutch system which ensures that on a press of a button one could
only get one
ticket issued at a time.
[14]
According to Mr Nieuwenhuys, the Department
of Transport had chosen that particular machine as part of their
contract, because there
were a number of safety factors built into
the machine. One of the safety measures was that one could not issue
a stream of tickets
by holding down the button. He further testified
that in his 15 years’ experience, including the operation of
the machine,
he had never encountered one able to replicate more than
one ticket without resetting. This was because of the clutch referred
to earlier. He also pointed out that should there be any difficulty
with the machine, he would have expected the driver to report
the
incident to the company, which, in the case of Mr Miya, there was no
such report in the register where such defects are reported.
[15]
Regarding the disciplinary hearing of Mr
Miya scheduled for 4 June 2001, he testified that the proceedings
were chaired by a Mr
Smith, and he was the initiator. The hearing was
scheduled to commence at 9h30. However, Mr Miya only arrived at
10h00. Upon arrival,
the proceedings commenced. Mr Miya was offered
the services of an interpreter as well as a representative. After the
preliminary
issues had been dealt with, Mr Miya indicated that he was
satisfied about the procedure and that he was aware and understood
what
was taking place. The charge was read to Mr Miya, who did not
respond thereto. The chairperson enquired from Mr Miya if he
understood
the proceedings, and if he needed the assistance of a
representative. Without any response, Mr Miya left the disciplinary
hearing
and caught a bus which left the premises. The hearing was
adjourned for about half an hour in the hope that Mr Miya would
return.
When the hearing resumed, Mr Miya had not returned. The
disciplinary hearing proceeded in his absence and the appellant’s
only witness, Mr Mtolo testified about the incident of 30 May 2001.
Mr Miya was dismissed the same day. Mr Nieuwenhuys’ evidence
concluded the appellant’s case in the arbitration proceedings.
[16]
In his own defence, Mr Miya testified that
on the day of the incident, he encountered a problem with the ticket
machine, which produced
intermittent tickets at a press of a button.
One Inspector Ngcobo boarded the bus as a passenger and he informed
him of the problem.
Inspector Ngcobo advised him to keep on selling
the issued tickets. Inspector Ngcobo advised him to use the tickets
for passengers
who subsequently boarded so that he does not come
short at the end of the day. According to Mr Miya, scholars paid half
the price,
so he gave two scholars one ticket to share in order to
use up the extra tickets he had printed. This explained why there
were
some passengers who did not have tickets on the day in question.
By the time he reached his destination most of the tickets issued
by
the machine were still with him. When inspectors Mtolo and Thembe
boarded the bus, he informed them of the problem and the earlier
advice given to him by Inspector Ngcobo. They were apparently not
satisfied with his explanation, and requested him to sign a report
slip to record the incident, which he did.
[17]
Later when he returned to the company, he
was issued with a notice to attend a disciplinary hearing. On the
same day Mr Smith called
him to his office and expressed his
dissatisfaction about his performance, and reminded him of the
incident of 21 May 2001, during
which he was also found to have had
passengers on his bus without tickets. He was requested to sign a
final written warning pertaining
to the incident of 21 May 2001,
which he refused to do. Regarding the disciplinary hearing, Mr Miya
testified that on 4 June 2001,
he was called to Mr Smith’s
office where he was informed that he had been dismissed, and asked to
sign a document confirming
his dismissal. With the advice from some
of his colleagues he completed the appeal form and lodged the appeal
the same day. After
two weeks he was informed that his appeal had
been unsuccessful.
The arbitration award
[18]
On 17 June 2009, the commissioner issued an
award in terms of which the dismissal of Mr Miya was confirmed as
being substantially
and procedurally fair. As to the substantive
fairness, the commissioner found the evidence of Mr Miya regarding
the alleged defect
in the machine, to be improbable. He reasoned that
had there been a fault in the machine, Mr Miya would have simply
retained the
tickets allegedly issued incorrectly until he returned
to the depot, or he could have handed over such tickets to the
inspectors
who had conducted the inspection on his bus. This,
according to the commissioner, would have been more in line with the
company
policy.
[19]
The commissioner found the version of Mr
Miya to be a fabrication and most improbable. He accordingly
concluded that, on the probabilities,
Mr Miya was fairly found guilty
on the substantive charge pertaining to the incident of 31 May 2001.
As to the sanction of dismissal,
the commissioner concluded that it
was an appropriate one. For this conclusion, he took into
consideration that Mr Miya’s
conduct was fraudulent towards the
employer, and the fact that Mr Miya had a written final warning
involving a charge of a similar
nature.
In the Labour Court
[20]
On 28 July 2009, Mr Miya, aggrieved with
the outcome of the arbitration proceedings, launched a further review
application (the
third review application) to the Labour Court,
seeking to review and set aside the arbitration award referred to
above. He
contended that the Commissioner failed to properly assess
the evidence; and argument presented to him; failed to assess
the
credibility of witnesses; he issued an award which is not
justifiable in relation to the reasons given for it, and that he
reached
conclusions which were not capable of reasonable
justification; he failed to take into account relevant considerations
and made
findings which are not supported by the evidence; he issued
an arbitration award which was not appropriate and thereby exceeded
his powers, alternatively issued out an award which was unreasonable.
[21]
Incidentally, the third review, like the
second one, came before the same learned Judge (Cele AJ) in the
Labour Court. The learned
Judge took the view that the versions of
the parties with regard to procedural fairness had not been properly
examined by the commissioner,
and that the commissioner had
overlooked material evidence relating to what transpired at the
disciplinary hearing. The learned
Judge reasoned that because it was
common cause that Mr Miya had filed an appeal against his dismissal
the very day of the dismissal,
it was “a clear indication that
the probabilities should have been found to favour the version of Mr
Miya.” The learned
judge also stated that the Commissioner
should have found that the witnesses of the appellant “lied on
what happened on that
day” and that the evidence tendered on
behalf of the appellant should not have been accepted “without
any kind of confirmation
or corroboration.” For that reason,
the Labour Court concluded that the dismissal was procedurally
unfair.
[22]
With regard to substantive fairness, the
Labour Court characterised the issue for determination as follows:
‘
The
issue turns on whether he (Mr Miya) issued (the additional tickets)
on his own in order to balance up for passengers whose money
he had
taken without issuing tickets or he issued the eight tickets because
of an instruction given to him by the two inspectors
including
Mtolo.
[1]
[23]
The Labour Court went on to find that Mr
Miya’s version that he had issued the additional tickets on the
instruction of Mr
Mtolo and his colleague, was more probable, and
should have been preferred over that of Mr Mtolo. In paras 17
and 18 of his
judgment, the learned Judge noted that in the earlier
review application, he had expressed concerns about the quality of Mr
Mtolo’s
evidence with regard to whether the additional tickets
were issued by Mr Miya on his own or on the instruction of the
inspectors
(Mr Mtolo and his colleague). Furthermore, the learned
Judge found that Mr Mtolo’s evidence in the two earlier
arbitration
proceedings was contradictory, and that he had raised
concerns about this in the earlier review application, which concern
the
learned Judge still had in the second review application. The
learned Judge remarked that the evidence on this aspect was
“critically
important.”
[24]
On the version of Mr Miya that the machine
had malfunctioned, the Labour Court found the evidence of Mr Miya
probable, and that
the commissioner had failed to deal with the
probabilities, and in the process, failed to apply his mind
appropriately. It went
on to criticise the acceptance of Mr
Nieuwenhuys’ testimony in this regard, holding that his
testimony as to how the machine
operated should have been rejected,
as he was not an expert on the operation of the machine and this was
an issue that needed expert
evidence. On the above considerations,
the Labour Court concluded that the resultant award by the
commissioner was one which a
reasonable decision-maker could not
issue in the circumstances. Accordingly, the Labour Court reviewed
and set aside the award
made by the Commissioner and substituted it
with an order for reinstatement of Mr Miya with back-pay. The
appellant was also ordered
to pay the costs of the review
proceedings.
Issues on appeal in this Court
[25]
In this Court, the appellant assailed the
judgment of the Labour Court on four grounds. Firstly, it is
contended that by virtue
of having heard and determined the earlier
review application involving the same parties on the same dispute,
the learned Judge
did not bring to bear, an unbiased, impartial and
objective mind on the issues. In essence, the appellant asserted that
the learned
Judge should have recused himself from hearing the second
review application. Secondly, the appellant argued that the learned
Judge
erred in finding that because Mr Miya had lodged an appeal on
the same day of the hearing, the appellant’s witnesses were
lying as to what transpired at the disciplinary hearing. Thirdly, it
is contended that the Labour Court was wrong in concluding
that the
evidence of Mr Nieuwenhuys about the operation of the machine should
have been rejected merely because he was not qualified
as an expert.
Lastly, it is argued that the Labour Court should not have ordered
reinstatement and back-pay given the lapse of
more than 12 years,
where Mr Miya had contributed to the delay.
[26]
On the other hand, on behalf of Mr Miya, it
was contended that Mr Ngcobo was a crucial witness, who was not
called by the appellant,
and that the commissioner was grossly
unreasonable in finding that Mr Ngcobo did not advise Mr Miya as the
latter contended he
did. It was also argued that the failure by the
appellant to call Mr Ngcobo, was fatal to its case before, and that
the commissioner
should have drawn an adverse inference against the
appellant. The suggestion obviously was that Mr Ngcobo would not have
been able
to refute Mr Miya’s evidence that it was on his
advice that he used the erroneously issued tickets for passengers who
subsequently
boarded the bus.
[27]
It was also argued that the commissioner
ignored relevant evidence. This relates to the number of tickets
issued the morning of
the day in question. It would be recalled that
it was common cause that at 05H16 during that morning, 15 tickets
were issued in
one minute. According to Mr Miya, this is when the
machine malfunctioned. The contention in this regard is that it lends
credence
to the version of Mr Miya that the machine malfunctioned.
Counsel for Mr Miya argued that the commissioner failed to deal with
the improbability of so many tickets being issued within a minute in
his assessment. Had the commissioner properly applied his mind
to
this aspect, so argued counsel, the only reasonable conclusion he
could have come to was that there was support for Mr Miya’s
version.
[28]
The further argument on behalf of Mr Miya
was that the Commissioner misdirected himself by not treating the
evidence of Mr Mtolo
with caution. It is argued that the latter had
given contradictory evidence in the two previous arbitration
proceedings, and therefore,
the Commissioner ought to have treated
his evidence with caution, and if not corroborated, it should have
been rejected in favour
of Mr Miya’s. By not doing so, the
argument goes, the Commissioner came to a conclusion that was
unreasonable.
[29]
Lastly, it was contended that it was
unreasonable and a gross misdirection for the commissioner to rely on
the evidence of Mr Nieuwenhuys
regarding the operation of the
machine, since such evidence required an expert, and Mr Nieuwenhuys
did not have the necessary expertise
to give such evidence.
[30]
From the above contentions, the following
issues have crystallised for determination, which I shall consider in
turn:
(a)
The Labour Court’s treatment of the
commissioner’s approach to the evidence;
(b)
The lack of impartiality of the Judge on
review;
(c)
The significance (or lack thereof) of the
date of lodgement of the appeal;
(d)
Expert evidence with regard to the
operation of the machine.
The Labour Court’s treatment
of the commissioner’s approach to the evidence
[31]
It is clear from the judgment that the
learned Judge was largely influenced by his own findings in the
earlier review application.
The learned Judge adopted the same
findings and reasoning which led to the setting aside of the earlier
arbitration award. That
approach, unfortunately, led the learned
Judge astray. He overlooked material aspects of Mr Miya’s
evidence, which were pointed
out in the latest arbitration
proceedings. Counsel for the appellant contended, correctly in my
view, that the learned Judge isolated
and confined his judgment to
the evidence serving before the Commissioner, thus ignoring the
versions which had been proffered
by Mr Miya.
[32]
Had the learned Judge taken Mr Miya’s
versions which he proffered from time to time, the inescapable
conclusion would have
been that the commissioner was reasonable in
the findings he made, based on the credibility findings and
probabilities. In my view,
part of the reason the learned Judge came
to a wrong conclusion on the evaluation of the evidence, was the
postulation of the criminal
law standard, when he said that all Mr
Miya had to do was to establish a version which was reasonably
possibly true, as opposed
to a version which was more probable than
that of the appellant.
The date of lodging the appeal
[33]
The Labour Court concluded that the date on
which Mr Miya lodged an appeal, was a crucial and a determinative
factor in confirming
Mr Miya’s assertion that he was summarily
dismissed without a hearing. That date, according to the Labour
Court, was 4 April
2001 and was common cause between the parties.
First, I fail to understand how the date of lodging the appeal could
be “a
clear indication” that the probabilities should
have been found in favour of Mr Miya, as the Labour Court found.
Second,
and apart from anything, the Labour Court was in any event
wrong to state that it was common cause that Mr Miya’s appeal
was lodged the same day he was dismissed.
[34]
The evidence before the Commissioner was
that the appeal was lodged on 5 April 2001, the day after the
disciplinary hearing. The
appeal form itself is dated 5 April 2001.
The Court rejected the evidence of Mr Chetty and Mr Nieuwenhuys in
this regard without
setting out the reason for doing so. Instead, the
Court stated baldly that the Commissioner should have found that they
“lied”
as to what happened on the date of hearing, and
that the commissioner should not have accepted their evidence without
some form
of corroboration. The Labour Court neither furnished any
reasons or motivation for that conclusion nor state the nature of
corroboration
it expected from the appellant.
[35]
Unlike, the Labour Court, I find, on the
contrary, that the evidence of those two witnesses was clear and
without any inherent contradictions.
What is more, it was in fact
common cause before the commissioner that Mr Miya had left the
hearing at some stage and returned
later that day to obtain an appeal
form from Mr Nieuwenhuys. As stated earlier, Mr Miya only lodged the
internal appeal on 5 June
2001. The commissioner was thus correct, in
my view, in accepting that evidence. Accordingly, the criticism of
the commissioner
in this regard was unwarranted, and his finding was
not reviewable.
Expert evidence
[36]
The Labour Court held that the Commissioner
ought to have required expert evidence concerning the function of the
ticket-issuing
machine. I do not agree. Both Messrs Nieuwenhuys and
Chetty gave factual and reliable evidence concerning their experience
with
the operation of the machine in question, their training thereon
and the reason why that particular machine was preferred over others.
Part of that reasoning was that it could not issue more than one
ticket at a time even if a person pressed the button continuously.
What is significant is that none of their evidence was challenged by
Mr Miya during cross-examination of the two witnesses. On
that basis,
I agree with the contention on behalf of the appellant that the
Commissioner was entitled to determine the issue on
the
probabilities. Among the key considerations with regard to the
probabilities is that Mr Miya never reported the alleged
malfunctioning
of the machine and that the machine worked just fine
after the alleged incident.
[37]
Even if the evidence of Mr Nieuwenhuys
regarding the operation of the ticket machine is discarded, one is
still left with a sufficient
body of evidence, which enabled the
commissioner to make a factual determination. The commissioner, after
having regard to the
evidence, concluded that the appellant’s
version was the most probable one. He did not misrepresent the
evidence or incorrectly
record any of the evidence which was before
him. On the contrary, he recorded and analysed the evidence with
remarkable detail,
and applied the correct basis of analysing the
evidence, i.e. which version was more probable.
Lack of impartiality
[38]
I did not understand the argument to be
that the learned Judge was deliberately biased. As a matter of fact,
he was not. Instead,
the complaint is that by virtue of having
determined the earlier review application, the learned Judge failed
to separate the evidence
led at the three arbitration proceedings. It
is also argued that the learned Judge relied on his prior findings in
the review proceedings
to adjudicate the review arising from the
arbitration proceedings before the commissioner. Whilst it would have
been preferable
for the learned Judge to have recused himself from
the review application forming subject of this appeal, I do not think
that anything
turns on this aspect. As stated earlier, there is no
evidence of partiality or bias on his part. The fact that he imported
his
own findings in the earlier review application to determine the
present one, is not, in itself a manifestation of lack of
impartiality.
Conclusion
[39]
To sum up, I agree with the appellant’s
contention that the Labour Court failed to have regard to the reasons
advanced by
the Commissioner in support of the arbitration award.
What is more, the Court failed to state why the findings and
conclusions
made by the Commissioner were reviewable, i.e why they
did not fall within the band of findings and conclusions a reasonable
decision-maker
could have reached based on the evidence before him.
In my view, there was nothing unreasonable about those findings. As a
result,
the award issued by the Commissioner should not have been set
aside. The commissioner’s findings are within the band of
decisions
which a reasonable decision-maker, applying his mind to the
facts before him, would have made. The appeal should accordingly
succeed.
.
[40]
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
Acting Judge of the
Labour Appeal Court
Waglay
JP and Musi JA concur in the judgment of Makgoka AJA
APPEARANCES
FOR
THE APPELLANT:
Ms CA Nel of MacGregor Erasmus Attorneys, Durban
Instructed by
MacGregor-Erasmus Attorneys, Durban.
FOR
THE FIRST RESPONDENT: Adv. M. Pillemer SC
Instructed by Jafta
Incorporated, Durban
[1]
Para 18 of
the judgment.