About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2008
>>
[2008] ZALCD 7
|
|
K W Plant Hire CC v Lambert and Others (D872/05) [2008] ZALCD 7 (21 February 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO :
D872/05
DATE
: 21 FEBRUARY 2008
NOT
REPORTABLE
In
the matter between
K
W PLANT HIRE
CC
APPLICANT
and
B
H
LAMBERT
FIRST
RESPONDENT
P
GOVINDSAMY N.O
SECOND
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
THIRD RESPONDENT
JUDGMENT
PILLAY
D, J
1.
“
Is the decision by the commissioner
one that a reasonable decision maker could not reach?” (
Sidumo
and Another v Rustenberg Platinum Mines Ltd and Two Others
(
unreported) case number CCT85/06
paragraph 10). That is the test for reviewing decisions of
arbitrators. This test clarifies
the test pronounced in
Carephone (Pty) Ltd v Marcus NO and
Others
1998 (19) ILJ 1425 (LAC) and
Shoprite Checkers (Pty) Ltd v Ramdaw NO
and Others
2001 (22) ILJ 1603 (LAC)
which required the decision to be justifiable, based on the evidence
presented at the arbitration.
2.
The Sidumo or reasonable test reasserts the
difference between reviews and appeals by emphasising that
arbitrators’ reasons
must support their decision. That is, the
award must take account of the evidence and law presented at the
arbitration. Material
presented at the arbitration, the
arbitrators’ reasons and the decisions make up the continuum
that produces a logical, reasonable
result. An award that is
illogical is unreasonable and therefore unsustainable. An illogical
award is one that does not have a
thread of reasoning that weaves
from the evidence and the law through the reasons to culminate in a
decision.
3.
In this case, the employer attacks the
award firstly because the arbitrator allegedly misconstrued the
evidence about whether the
third respondent employee’s post was
redundant. Secondly, the arbitrator dismissed the employer’s
evidence that
the decision to retrench was for economic reasons.
Thirdly, the arbitrator’s findings that the employer did not
properly
consider an alternative position for the employee was not
justified by the evidence before him. Fourthly, the arbitrator
made a surprising finding that the employer had ulterior motives for
terminating the employment, there being no evidence to suggest
that
the employee’s poor performance was linked to his
retrenchment. Fifthly, the arbitrator relied on evidence that
was not tested in cross examination of the employer’s
witnesses. Lastly, the arbitrator’s finding of procedural
unfairness was unjustified by the evidence presented at the
arbitration. Assuming that all of these criticisms are valid,
none of them can be elevated to grounds of review. At most, the
decisions may be incorrect, but an incorrect decision is
not
reviewable.
4.
The thread of reasonableness that holds
together the material before the arbitrator, his reasons and the
outcome is the facts that
were common cause. The employee was
the plant manager of the plant section. He introduced a
computerised system in
January 2005 which resulted in his duties
being redistributed. That left him to refocus on more serious
management responsibilities.
In the opinion of the employer
there were no such responsibilities. The employee disagreed.
5.
On 26 January 2005 the employer handed the
employee notice of his possible retrenchment. That was hardly a
month into the
new system introduced by the employee. The
employer consulted with the employee on 11 and 18 February on which
latter date
the employer informed the employee that he was
retrenched. He was the only employee to be retrenched.
6.
On these facts alone the retrenchment was
possibly unfair. The employee would hardly have introduced
efficiencies if he knew
that the employer would dismiss him the
moment they took effect. To reward the employee for his
endeavour with retrenchment
is manifestly unfair. Furthermore,
the speed at which his dismissal was processed suggests that the
decision to dismiss was
predetermined and that the consultations were
a façade for procedural propriety.
7.
The suggestion of unfairness translates to
actual unfairness with the evidence of Alan Reddy, the employer’s
former Human
Resource manager. Even if one approaches his
evidence with caution because he now works with the employee for
another employer,
his evidence that the employer could have retained
the employee, is probable given the employee’s managerial and
technical
skills as a mechanic. Furthermore, the employer did
not explore the option of retaining the employee in parts of its
business
other than the plant section, a fact which the employer has
not disputed.
8.
On the merits, therefore, the employer has
no prospects of succeeding in its review. It has the further
hurdle of overcoming
its
onus
in
this application for condonation for the late filing of the review.
The employer’s explanation for the delay is insufficient.
Its
explanation was that the matter had been handed over to an employer’s
organisation of which it was a member. However,
as there was an
administrative error in ensuring that the subscriptions of the
employer’s organisations were paid timeously,
the employer’s
organisation did not attend to their instructions until their
subscriptions were paid.
9.
Assuming that to be true, the employer did
not explain what steps it took between handing over the instructions
and ensuring that
an affidavit was prepared timeously for the
review. The delay in filing the review is about three weeks.
However, there
were other delays in the matter for which the employer
was responsible which suggest that it was not sufficiently attentive
to
its responsibilities.
10.
In all the circumstances the employer has
not set out a sufficient basis to obtain the indulgence of this Court
for its condonation
application. In the circumstances the application
for condonation and the review are dismissed with costs.
_______________
PILLAY
D, J
Date:
14 March 2008
REPRESENTATION:
For
the Applicant:
J.Forster-Farrel
and Associates
For
the Respondent:
Adv Nicholson
instructed by Charmane Pillay & Co
IN
THE LABOUR COURT OF SOUTH AFRICA
DURBAN
AND COAST LOCAL DIVISION
HELD
AT DURBAN
CASE
NO
:
D872/05
DATE
:
21 FEBRUARY 2008
In
the matter between
K
W PLANT HIRE
CC
APPLICANT
and
B
H
LAMBERT
RESPONDENT
BEFORE
THE HONOURABLE MADAM JUSTICE PILLAY
JUDGMENT
JUDGMENT DELIVERED ON
21 FEBRUARY 2008
TRANSCRIBER’S
CERTIFICATE
This
is, to the best abilities of the transcriber, a true and correct
transcript of the proceedings,
where audible
, recorded by
means of a mechanical recorder in the matter:
K
W PLANT HIRE CC v B H LAMBERT
CASE
NO
:
D872/05
COURT
OF ORIGIN
:
DURBAN
TRANSCRIBER
:
MRS S M BOYCE
DATE
COMPLETED
:
6 MARCH 2008
NO
OF TAPES
:
CD
NO
OF PAGES
:
6