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[2009] ZALCD 19
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FAWU obo Vickers v Commission for Conciliation Mediation And Arbitration and Others (D390/08) [2009] ZALCD 19 (4 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
CASE
NO D390/08
In
the matter between:
FAWU
obo Vickers
B
Applicant
And
Commission
for Conciliation,
Mediation
and
Arbitration
1
st
Respondent
Commissioner
Hilda
Grobler
2
nd
Respondent
Clover
SA (PTY) LTD
3
rd
Respondent
JUDGMENT
GUSH
J
1.
In this matter the applicant seeks to
review and have set aside the award of the second respondent who
found that “
the applicant’s
dismissal was not unfair
” and
accordingly dismissed the applicant’s application at the
arbitration.
2.
The review application was opposed by the
third respondent.
3.
The background facts are that the applicant
had been found guilty of misconduct by the 3
rd
respondent and had been dismissed
4.
The misconduct of which the applicant had
been charged and found guilty was that she had refused to carry out a
specific, reasonable
and legitimate instruction to conduct an
induction programme.
5.
The facts are set out in detail in the
second respondent’s award at pages 11 to 34 of the review
application and I do not
intend to repeat them in the same detail in
this judgment. Suffice to say that the second respondent dealt with
the background,
the facts and the evidence thoroughly in her award.
6.
The applicant was employed by the 3
rd
respondent as a safety health and environment officer (SHE). Her
duties included induction training for newly appointed employees
and
follow up training for existing employees. Some time before the
incident which lead to her dismissal the applicant’s
job
description had been changed which entailed inter alia that the
responsibility for identifying the employees who were to be
trained
was given to the 3
rd
respondent’s various heads of department.
7.
The applicant became disgruntled over this
change and the matter was the subject of a dispute. The applicant was
adamant that she
would not accept the change and manifested itself in
her refusing to train newly appointed staff together with staff who
were doing
follow up training (which the parties referred to as mixed
groups). There had been occasions prior to the incident in
question
were the applicant had sent trainees out of the training
sessions for reasons that she was not prepared to train mixed groups.
8.
This appears to have been the cause of some
friction between the applicant and her seniors which culminated in
the incident which
lead to her dismissal. On the day of the incident
in question the applicant was specifically instructed to conduct an
induction
training session for a mixed group and she had refused to
comply with this instruction. Her refusal lead to the disciplinary
hearing,
following which she was dismissed.
9.
The second respondent found that the third
respondent had given the applicant a reasonable instruction and the
applicant had had
no valid grounds to refuse to comply. On the
basis that the applicant’s actions were unlawful, serious,
deliberate
and a serious challenge to the third respondent’s
authority the second respondent found that the dismissal was not
unfair.
10.
The applicant, unfortunately, in her
grounds of review sought to review the second respondent’s
decision based on the decision
in the
Carephone
case. The grounds of review are set out on page 9 of the
founding affidavit. The grounds are based on the law as it
was
prior to the decision in
Sidumo & Another
v Rustenburg Platinum Mines Ltd & Others
2007 28 ILJ 2405 (CC)(
Sidumo
).
Despite this issue being raised by the third respondent in its
answering affidavits the applicant did not supplement her
papers nor
attempt to deal with the decision in
Sidumo
.
11.
It is also important to note that the
applicant did not see fit to expand on its grounds of review once the
record of the arbitration
had been made available. The applicant’s
Rule 7A notice simply states: “
The
applicant stands by its notice of motion
”
12.
The third respondent argued that the
applicant’s case should stand or fall on its papers and, given
that the applicant was
not relying on the
Sidumo
matter, but the law as it was prior to the
Sidumo
matter, her application should be dismissed with costs.
13.
The applicants grounds of review as set out
in the founding affidavit are that the Award:
a.
is vitiated by a defect in that the 2
nd
respondent committed a gross irregularity and/or exceeded her powers;
b.
is not rationally justifiable in the
relation to the reasons given for it in that:
c.
there was no evidence of the breakdown in
the employment relationship;
d.
the finding that a witness “Ntuntela”
was not an expert was not justified;
e.
the “
finding
that the elements of wilfulness, seriousness, deliberateness and
serious challenge to the respondent’s authority
existed
in the applicant’s conduct is without basis
”;
and
f.
“
the second respondent’s
decision to reject the applicant’s evidence was not justifiable
having regard to her stated
reasons and/or the material properly
before her
”
14.
The applicant however goes no further than
this in the founding affidavit and does not elaborate on why or how
these averments have
no “basis”.
15.
The applicant in the founding affidavit
then states that “
these grounds of
review will be elaborated upon in the applicant’s supplementary
affidavit, once the record of the proceedings
before the 1
st
respondent has been made available to the applicant
”.
Unfortunately the applicant neither elaborates on nor refers to the
record after filing it. In fact the applicant
makes no effort
or attempt whatsoever to show, by reference to the record or to the
second respondent’s award to show why
or for what reason the
applicant deems the award reviewable and why it should be set aside.
16.
Assuming, for argument’s sake, and
for the purpose of considering this matter, that the Court despite
the applicants pleadings
and the absence of any pleaded grounds of
review, is entitled to consider whether or not the decision of the
second respondent
is reviewable on the basis of the test enunciated
in
Sidumo
the position is this. The test as enunciated by the Constitutional
Court is:
“
[110]
To summarise, Carephone held that s 145 of the LRA was suffused by
the then constitutional standard that the outcome of an
administrative decision should be justifiable in relation to the
reasons given for it. The better approach is that s 145 is now
suffused by the constitutional standard of reasonableness. That
standard is the one explained in Bato Star: Is the decision reached
by the commissioner one that a reasonable decision-maker could not
reach? Applying it 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.
...
[119]
To my mind, having regard to the reasoning of the commissioner, based
on the material before him, it cannot be said that his
conclusion was
one that a reasonable decision-maker could not reach. This is one of
those cases where the decision-makers acting
reasonably may reach
different conclusions. The LRA has given that decision-making power
to a commissioner.
”
17.
In order to succeed with a review it
must be shown that the decision made by the arbitrator, or the second
respondent in this matter,
is a decision that a reasonable decision
maker could not reach taking into account the material placed before
her.
I am not satisfied that
the applicant has succeeded in doing so. The averments made in the
applicant’s affidavit are simply
bold statements to the effect
that the conclusions reached by the 2
nd
respondent are
baseless. The applicant’s pleadings do not make out a case
justifying her application that the award be reviewed
and set aside
The applicant does not appear to have even considered the record or
the award with reference to the record and relies
only on the bare
averments in the affidavit that the conclusions drawn by the
applicant have no basis.
18.
I am satisfied that applying the
test, namely whether the decision reached by the second respondent is
one that a reasonable
decision-maker could not make, that as was held
in
Sidumo,
I am unable “
to find that the
commissioner ignored any material fact in evaluating the fairness or
otherwise of the sanction imposed by the employer.
In the result I cannot say that the
employee did not have a fair trial before the commissioner with the
result that a gross irregularity
in the proceedings occurred, nor can
I, in all the circumstances of this case, conclude that the award
made by the commissioner
was manifestly unfair to the employer.
It follows from the conclusions that the commissioner did not exceed
his powers under
the LRA, nor can I say that the commissioner
committed a misconduct.
”
19.
In this matter I am also satisfied, that
there is “
no indication that the
commissioner ignored any material fact in evaluating the fairness or
otherwise of the sanction and I cannot
say either that the applicant
in this matter did not have a fair trial before the commissioner
.”
20.
In the circumstances the applicant has not
shown that the award of the second respondent is reviewable and I
accordingly dismiss
the application with costs.
____________
Gush
J
DATE
OF HEARING :
04 DECEMBER 2009
DATE
OF JUDGMENT : 04
DECEMBER 2009
APPEARANCES
FOR
APPLICANT
: Mr V LANDU of FAWU
FOR
RESPONDENT :
Adv H GERBER
Instructed
by
: KOCKS AND DREYER ATTORNEYS
IN
THE KWAZULU-NATAL LABOUR COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO
:
D390/08
DATE
:
04 DECEMBER 2009
FAWU
& ANOTHER
versus
CLOVER
SA & OTHERS
BEFORE
THE HONOURABLE MR JUSTICE GUSH
ON
BEHALF OF APPLICANTS
:
[NOT NOTED]
ON
BEHALF OF RESPONDENTS
:
[NOT NOTED]
INTERPRETER
:
NOT REQUIRED
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Judgment
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