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[2010] ZALCJHB 29
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SATAWU and Another v Arivia (Pty) Ltd t/a Arivia.Com and Others (JR1254/09) [2010] ZALCJHB 29 (10 September 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE NUMBER: JR
1254/09
In
the matter between:
SATAWU
First
Applicant
PENNY
MKHIZE
Second
Applicant
and
ARIVIA
(PTY) LTD T/A ARIVIA.COM
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
DUMISANE
NGWENYA
N.O
Third
Respondent
JUDGMENT
BHOOLA
J:
Introduction
[1]
The applicants seek an order in terms of
section 145 of the Labour Relations Act, 66 of 1995 (“the LRA”)
reviewing and
setting aside the award of the third respondent (“the
arbitrator”)
under case number
GAJB31643-08 of 23 July 2009, in which he found the dismissal of the
second applicant (“the employee”)
to have been
procedurally and substantively fair.
Background facts
[2]
The employee was employed by the first respondent as a Proposals
Specialist / Bid Manager. She was dismissed on 7 October 2008
after
being found guilty on a charge of insolence towards the Acting
General Manager, Tshepo Boikanyo (“Boikanyo”).
[3]
It was common cause that the charge was triggered by events following
a meeting held on 15 July 2008, called by Boikanyo. The
meeting
occurred at a time when the first respondent was undergoing
restructuring, and it was common cause that this formed the
basis of
consultation between the first respondent and the first applicant in
terms of the Recognition Agreement in existence between
the parties.
The employee and other members of the first applicant were concerned
that the meeting convened on 15 July was an attempt
to proceed with
the restructuring process without the first applicant. As such, when
the employee was notified of the meeting she
forwarded the
information to two officials of the first applicant, Lubabalo Tinzi
(“Tinzi”) and Thuli Thwala (“Thwala”).
Boikanyo objected to this and a series of emails followed which aptly
depict the nature of the relationship between them and which
the
arbitrator described as “
frosty
and quite unfriendly
”.
[4]
The first respondent’s evidence was that the 15 July meeting
was the third meeting Boikanyo had called to address operational
issues arising from the restructuring. Two previous meetings had been
discontinued because of the conduct of the employee. Despite
the
invitations making it clear that the meeting was with the Bid
Management Team the employee insisted she was participating in
her
capacity as a shop steward of the first applicant. Boikanyo then
rescheduled the meeting for 15 July stating in an email that
the
first applicant and the Human Resources department were not invited.
He also informed the employee not to invite participants
on his
behalf. She responded to his email stating that she had a
constitutional right to have representatives present at a meeting
which dealt with labour issues, and that she would refer the matter
to Human Resources and to the first applicant. Boikanyo responded
stating that the disruption of internal meetings by her would not be
tolerated and that it was tantamount to unruly behaviour and
would be
dealt with.
[5]
At the meeting of 15 July, another employee (Dennis Cooper) expressed
a concern about the proposed change in job titles as a
result of the
restructure (from Bid Specialist to Proposal Specialist). Boikanyo
advised that this issue had not been raised previously
and that he
would ensure that it was properly addressed during the restructuring
process. Despite Cooper being satisfied with the
assurance received
from Boikanyo, the employee demanded that the issue be addressed
immediately. A heated exchange followed between
Boikanyo and the
employee. As the arbitrator points out, there was a dispute about the
actual events that occurred at the meeting.
The first respondent’s
version is that the employee became disruptive and shouted loudly
that the issue raised by Cooper
should be addressed immediately.
The employee’s version was that Boikanyo had belittled her in
the presence of her
colleagues. The meeting was then discontinued.
[6]
A further incident arose immediately after the abandoned meeting, and
which led to the charges against the employee. The first
respondent
alleges that the employee continued her insolent behaviour. The
applicants allege that she simply wanted to express
her
dissatisfaction about the manner in which she had been treated by
Boikanyo at the meeting. The first respondent’s evidence
was
that she approached Boikanyo outside the boardroom where the meeting
had been held in a loud and rude manner and pointed a
finger at him.
She accused him of disrespecting her and he tried to move away from
her, but she followed, insulting and shouting
at him. Boikanyo went
into the office of a colleague, to avoid embarrassment but she
followed him and continued shouting at him
and obstructed his way.
Boikanyo told her to leave him alone and to “
tell
someone who cares
”. She continued
addressing him in a rude manner and reminded him that he was only an
acting manager. Boikanyo then proceeded
to his office and called
Thwala in order to advise her what had occurred and she apparently
agreed that the employee’s conduct
constituted serious
misconduct.
[7]
The employee lodged a grievance against Boikanyo. She was suspended
and thereafter was charged with insolence and intimidation.
She was
found guilty on the charge of insolence and was dismissed. She
referred a dispute to the second respondent and the arbitrator
issued
an award declaring her dismissal procedurally and substantively
fair.
The
grounds of review
Exclusion of
evidence relating to inconsistency
[8]
The applicants do not challenge an
in
limine
ruling made by
the arbitrator in regard to the admissibility of documentary evidence
not included in the bundle. This ruling also
determined that
inconsistency had not been placed in issue in the pre-arbitration
minute, and as such any evidence on this issue
was irrelevant and
inadmissible. Notwithstanding the exclusion of this ruling from the
review, the
applicants
submit that had they been permitted to do so, evidence would have
been led that Thwala had insulted and threatened a
shop steward
(Groenewald) during a consultation meeting, but the first respondent
took the view that as they had engaged on an
equal footing there was
no need for discipline. The same approach should have applied to the
present situation in that the employee
challenged Boikanyo on trade
union related issues and he knew that she was a shop-steward of the
first applicant.
The
applicants therefore contend in
their heads
of argument that the exclusion of evidence on this issue was a gross
irregularity.
Admission
of unsigned pre-arbitration minutes
[9]
The arbitrator admitted into evidence minutes of a pre-arbitration
meeting despite these not being signed by the applicants.
In so doing
he committed a gross irregularity. The first respondent submits that
the applicants refused to sign the minutes and
did not object to
their admission during the arbitration, and they cannot now raise it.
They cannot seek to attribute their own
conduct in refusing to sign
the minutes to the arbitrator as a gross irregularity. In any event,
it was submitted by Mr Moshoana
for the first respondent, that in
order to establish the existence of a gross irregularity they would
have to show that the admission
of the minute prevented “a
fair trial of the issues”, which was the test used by Zondo JP
in
County
Fair Food (Pty) Ltd v CCMA and others
(1999) 20
ILJ
2609
(LAC).
[1]
Failure
to consider material evidence
[10] The arbitrator
omitted from the award material and substantial evidence led by the
applicants, and in so doing he misdirected
himself and committed a
gross irregularity. In amplification of this ground, the
applicants allege that the arbitrator
improperly excluded any
reference to the following relevant and material evidence in his
award:
(a)
The evidence of Thwala, which spans at
least 33 pages of the transcribed record, and which dealt with the
procedures applicable
to the suspension of shop stewards, and which
should have applied to the employee.
(b)
The evidence of Cas van Niekerk, which
spans some 10 pages of the record, in which he dealt with the events
that took place after
the meeting of 15 July that eventually led to
the dismissal of the employee. His evidence was that he was summoned
to the office
of Boikanyo, who indicated that he intended to dismiss
the employee and who sought assistance with this. This confirmed that
a
decision had been made to dismiss the employee even prior to her
being charged with a disciplinary offence. The record further
indicates that Thwala was at pains to persuade Van Niekerk to refer
to the employee’s suspension instead of dismissal. Van
Niekerk’s testimony was that there was no struggle or any form
of violence, and he further corroborated the employee’s
version
that at the time the altercation occurred she was waiting to speak to
Thwala about her grievance.
(c)
Ezrah Sithole, whose evidence was not
challenged by the first respondent and spans about 13 pages of the
transcribed record. He
was called by the applicants as a shop steward
who deals specifically with restructuring and consultation processes
at the first
respondent. He is also a member of the consultative
forum. His testimony was that Boikanyo had disguised his consultation
meeting
with the staff by pretending that it was an operational
meeting. He testified further that as members of the consultative
forum
they heard from Zodwa Dlamini (“Dlamini”) that
Boikanyo was intent on continuing with the restructuring without the
participation of the first applicant. His evidence was consistent
with Blondie September’s evidence that internal procedures
had
to be followed before restructuring could take place, and that
management had also registered concerns about the unilateral
implementation of the restructuring undertaken by Boikanyo. Sithole
testified that the employee was dismissed for raising questions
about
the restructuring meeting occurring in the absence of shop stewards.
He confirmed further that the procedure in the recognition
agreement
had not been complied with prior to the suspension of the employee.
(d)
Blondie September was an expert witness
subpoenaed by the CCMA to lead evidence on the policies and
procedures applicable. She was
a Human Resources Consultant servicing
the business unit of Boikanyo and confirmed that at the time the
employee was suspended
there had been no agreement between the first
applicant and management regarding the restructuring. She testified
further that
Boikanyo’s intention to move the Internal Business
Services to the Internal Project Office fell within the ambit of
restructuring
and that the “Restructuring during Normalisation”
policy had been applicable and should have applied, in conjunction
with the “Consultation during Restructuring” policy. She
also recalled that Boikanyo had not presented the proposed
new
structure to the consultative forum because it lacked a business
case. Her testimony was that she had advised him about the
importance
of consultation in terms of the process set out in the relevant
policies. Despite the fact that the policy documents
applicable to
the first respondent and mentioned in the evidence formed part of the
bundle of documents accepted by the arbitrator
as relevant to the
dispute but he failed to discuss let alone mention them in his award.
September’s evidence confirmed that
the conflict between the
employee and Boikanyo arose as a result of his non-compliance with
the policies and procedures of the
first respondent. This explained
Boikanyo’s hostility to the first applicant and his intention
to exclude it from the 15
July meeting.
(e)
Aaron Gumede’s evidence, which
constitutes about 26 pages of the record and related to events that
took place after the 15
July meeting. He confirmed that the employee
lodged a grievance at about 13:00 that day, and that she was
suspended later that
day. This contravened the disciplinary and
grievance procedure which provided that a grievance must be dealt
with before a decision
in regard to discipline of the grievant is
taken. He was present at the time of the employee’s suspension
and he corroborated
her version.
Sanction
[11]
Mr Ngako, appearing for the applicants, submitted that in confirming
the sanction of dismissal the arbitrator failed to take
into account
the employee’s lengthy and unblemished service and her role as
a shop steward, as well as Boikanyo’s hostile
attitude to the
first applicant. He should have taken into account that a corrective
penalty may have been more appropriate particularly
given the
fact that following the restructure the employee would no longer be
reporting to Boikanyo. The applicants submit
further in
regard
to sanction it was the duty of the arbitrator to take into account
the totality of events in considering whether the sanction
imposed
was appropriate. This involves a consideration of whether the
sanction was consistently imposed in the past between employees
who
participated in the same misconduct.
Additional
irregularities
[12] The applicants raise
the following further irregularities which they submit justify the
review:
(a)
In analysing the evidence to the exclusion of the material evidence
set out above, the arbitrator
found that the meeting of 15 July 2008
did not concern consultation or restructuring but dealt with the
functional move of the
employees to another department. He found that
this negated the contention that the employee was at the meeting in
her capacity
as a shop steward. However, he does not provide a reason
why it would be justified for the first respondent to exclude a shop
steward
from an operational meeting but not from a consultative one.
(b)
Whilst the arbitrator accepted that Dlamini had told a minor lie
during her evidence, he
concluded that this did not warrant rejection
of her evidence in its entirety.
(c)
The arbitrator incorrectly states that the employee was found guilty
of gross insolence
and/or intimidation when she was only found guilty
of insolence. He also permitted evidence of a video recording related
to alleged
intimidation although this charge was not upheld at the
disciplinary enquiry.
(d)
No reasonable decision-maker would have disregarded the conduct of
Boikanyo as not being
relevant to the relationship with the
applicants given the language he used towards the employee in the
presence of her colleagues
and his attitude when she sought to
address concerns with him.
The review standard
[13]
It is trite that the function of this court in deciding whether to
interfere with the arbitration award is limited to the grounds
provided for in section 145 of the LRA, suffused by the standard of
reasonableness :
Sidumo & Another v
Rustenburg Platinum Mines Ltd & Others
(2007)
28
ILJ
2405
(CC).
This requires an applicant on
review to show that the decision reached by the commissioner is one
that a reasonable decision maker
could not have reached : see
Sidumo
(supra) as well as
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC).
Analysis
and evaluation
Sanction
[14]
Mr Ngako submitted that this Court should have regard to the approach
advocated by the authorities in regard to sanction. In
Woolworths
(Pty) Ltd v CCMA & Others
[2010] 5 BLLR 577 (LC)
[2]
Molahlehi J held:
[24]
This Court has previously observed that in addition to the general
test applied in review cases the Constitutional Court in
Sidumo also
dealt with the approach which the CCMA commissioners should follow
when determining the appropriateness of the sanction
imposed by the
employer. The approach adopted by the Constitutional Court confirmed
two of the decisions of the Labour Appeal Court
in the cases of Engen
Petroleum Ltd v CCMA & others (2007) 28 ILJ 1507 (LAC) and
Chemical Workers Industrial Union & others
v Algorax (Pty) Ltd
(2003) 24 ILJ 1917 (LAC). In those cases the Labour Appeal Court held
that the reasonable employer test must
not be applied and there
should be no deference to the employer’s choice of a sanction
when a CCMA commissioner decides whether
dismissal as a sanction is
fair in a particular case. The commissioner is in terms of these
decisions required to decide the issue
of the appropriateness of the
sanction in accordance with his or her own sense of fairness (see
Engen, supra, paragraph [117] at
1559A; paragraph [119] at 1559H-I;
paragraph [126] at 1562 C–D, paragraph [147] and Sidumo at
paragraphs [75]-[76]). The
determination of the fairness or
appropriateness of a dismissal is an issue to be left to the
commissioner and not the employer
or the reviewing court. In this
regard it was said in Sidumo (at paragraph [75]) that : “Ultimately,
the commissioner’s
sense of fairness is what must prevail and
not the employer’s view”.
[15]
Further, in
Lithotech
Manufacturing
Cape, A division of Bidpaper Plus (Pty) Ltd v Statutory Council
Printing, Newspaper & Packaging Industries &
others
[2010]
6 BLLR 652
(LC) Basson J held stated
[3]
that, in reviewing an arbitrator’s decision as to what would be
an appropriate sanction, the court must consider whether
or not the
commissioner took all relevant factors into account in arriving at a
decision. Basson J cited the factors set out by
the Labour Appeal
Court in
Fidelity
Cash Management Services v CCMA & Others
[2008] 3
BLLR
197
(LAC) in light of the
Sidumo
test as follows :
“
[94]
In terms of the Sidumo judgment, the commissioner must -
(a) 'take into account
the totality of circumstances' (para 78);
(b) 'consider the
importance of the rule that had been breached' (para 78);
(c) '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' (para 78);
(d) consider 'the harm
caused by the employee's conduct' (para 78);
(e) consider 'whether
additional training and instruction may result in the employee not
repeating the misconduct';
(f) consider 'the
effect of dismissal on the employee' (para 78);
(g) consider the
employee's service record.
The Constitutional
Court emphasized that this is not an exhaustive list. The
commissioner would also have to consider the Code of
Good Practice:
Dismissal and the relevant provisions of any applicable statute
including the Act. In this regard ss 188 and 192(2)
of the Act will
usually be of relevance. Section 188(1) provides in effect that a
dismissal that is not automatically unfair is
unfair if the employer
fails to prove the matters stated therein. Section 182 enjoins a
person considering whether a dismissal
is unfair to take into account
provisions of the relevant Code of Good Practice. Section 192(2) is
the provision that places the
onus on the employer to prove that the
dismissal is fair.
[95]
Once the commissioner has considered all the above factors and others
not mentioned herein, he or she would then have to answer
the
question whether dismissal was in all of the circumstances a fair
sanction in such a case. In answering that question he or
she would
have to use his or her own sense of fairness. That the commissioner
is required to use his or her own sense of justice
or fairness to
decide the fairness or otherwise of dismissal does not mean that he
or she is at liberty to act arbitrarily or capriciously
or to be mala
fide. He or she is required to make a decision or finding that is
reasonable”.
[16] Mr Ngako submitted
further that paragraph 4.5 of the award makes it clear that the
arbitrator failed to consider all the factors
and instead deferred to
the first respondent thus failing in his duties as a commissioner. In
paragraph 4.5 the arbitrator states
as follows:
“
According
to the established version, Penny behaved insolently towards her
superior during the meeting. She further compounded her
misconduct by
persisting with this conduct outside the meeting to the extent that
she followed Tshepo to his office. The applicant’s
conduct
amounted to gross insolence as it was deliberate, persistent and
aimed at a very senior employee of her department (Tshepo
was heading
the department. The respondent was thus justified to dismiss her. The
dismissal was thus substantively fair”.
He
was duty bound to consider all the circumstances including that of
the employee, and therefore failed to consider whether the
sanction
of dismissal was appropriate in the circumstances. No
reasonable commissioner would have reached this conclusion.
The
arbitration was a hearing
de novo
and he was required to determine the substantive guilt of the
employee on
all
the
evidence before him and not selectively as he did. He therefore
failed in his duties as commissioner and his award falls to
be set
aside.
[17]
Mr Moshoana argued that paragraph 4.5 does not support the
applicants’ submission that the arbitrator was deferential.
He provided his reasons for finding that the conduct of the employee
was ‘
deliberate’
and ‘
persistent’
and in so doing deals with the facts before him on this issue. He
obviously rejected the applicants’ version. He did what
was
required of him in terms of the approach of the Labour Appeal Court,
as referred to above, which was confirmed in
Sidumo
,
and applied his own sense of fairness. There is no
justification for the court to interfere with the award. It is a well
reasoned award supported by the evidence. As was held by the Labour
Appeal Court in
Palaborwa Mining Company
Ltd v Cheetham & Others
[2007] ZALAC 11
;
[2008]
6 BLLR 553
(LAC)
, the commissioner
exercises a discretion in respect of fairness and courts must be slow
to interfere. This Court must contend with
decisions even though it
may have adopted a different approach, provided they fall within the
bounds of reasonableness.
[18]
I agree with the submissions made by Mr Moshoana. There is no basis
in fact or law to conclude that the arbitrator’s
finding on
sanction was deferential or that it constituted a gross irregularity
on any other ground.
Omission of
material evidence
[19]
Mr Ngako submitted that even if the evidence of the seven witnesses
was considered to be irrelevant and immaterial, a reasonable
commissioner would at least have referred to the evidence and then
given reasons for rejecting it. There is therefore no indication
that
he took any of this evidence into account. Submissions were
also made in the heads of argument that the arbitrator lost
his notes
and hence was not able to state objectively all the evidence
presented to him. In my view, even if this hearsay submission
is
accepted, the explanation for the omission is not relevant. It is
apparent from the award and the evidence as a whole that the
arbitrator properly sifted the evidence relating to the charge from
the evidence about the union-company relationship. Irrelevant
evidence, whether it is given by seven or 20 witnesses, as Mr
Moshoana correctly asserted, remains irrelevant.
[20] However, in
considering the award and the proceedings in the light of the above
submissions, I make specific findings as follows:
(a) It emerges that the
evidence of Van Niekerk was irrelevant to the misconduct committed by
the employee and the arbitrator correctly
excluded it and took into
account the fact that the charge of intimidation against the employee
had fallen away at the disciplinary
enquiry. Boikanyo’s
evidence was that he called Van Niekerk into his office to remove the
employee, who was accompanied by
Gumede, from his office because he
was running late for another meeting. Boikanyo had summoned the
employee into his office to
issue her with a suspension letter.
(b)
The evidence of Thwala was likewise immaterial to the issues before
the arbitrator –
she had not even been considered as a witness
and was only called to address issues about the consultation process
taking place
between a Consultative Forum and the first applicant
that fell outside Boikanyo’s personal knowledge. Her testimony
was accordingly
not relevant to the misconduct with which the
employee had been charged and the omission from the award would
appear to be justified.
(c)
Sithole’s participation in the consultative forum did not
render his evidence
material to the misconduct with which the
employee was charged. He was in any event not present at the 15 July
meeting. His opinion
that Boikanyo had “disguised” the
meeting as purely operational in order to avoid consultation with the
first applicant
was not only irrelevant but not substantiated by the
facts. However, even if it had been I agree with the approach of the
arbitrator
in that it could not have been a justification for the
employee’s undisputed belligerence, which was the basis of the
testimony
of her own witness, Dlamini, and which resulted in her
being declared a hostile witness. Dlamini’s evidence was
properly
found by the arbitrator to have been consistent with that of
the first respondent’s witnesses.
(d)
September’s evidence likewise was irrelevant in that Human
Resources had already been
assured that the terms and conditions of
employment and job descriptions of affected employees would remain
unchanged. September
had no knowledge of the misconduct, her evidence
was irrelevant and was properly not mentioned in the award.
(e)
Gumede is an official of the first applicant who became involved
after the misconduct in
question had already been committed. He
accompanied the employee to Boikanyo’s office where she was
issued with her letter
of suspension. His evidence was accordingly of
no consequence to the question of whether the employee had committed
the misconduct
or not, and the issues to be determined by the
arbitrator.
[21]
Furthermore, in my view the arbitrator properly had regard to the
evidence of Dlamini, which was that the employee was disruptive
during the meeting of 15 July and kept pointing her finger at
Boikanyo. She also testified that she tried to dissuade the employee
from confronting Boikanyo after the meeting when the employee
informed her that she intended to do so because he had been impudent.
The essence of the applicants’ submissions is that her version
was accepted by the arbitrator despite her being declared
a hostile
witness. There is no factual or legal basis on which it can properly
be contended that this constitutes a gross irregularity.
[22]
The issue before the arbitrator was whether the employee committed
the misconduct with which she had been charged, and whether
the
procedure used to dismiss her was fair. It is trite that insolence is
a disciplinary offence that justifies disciplinary action:
see
Rostoll en ‘n ander v Leeupoort
Minerale Brom (Edms)
Bpk
(1987) 8
ILJ
366 (IC) and
Transport and General
Workers Union & Another v Interstate Bus Lines (Pty) Ltd
(1988) 9
ILJ
877 (IC).
In casu
the insolence is without doubt of a serious nature, being directed
against an Acting General Manager who reported directly to the
CEO,
and involving unacceptably belligerent conduct of a nature that
cannot be tolerated in a workplace irrespective of the seniority
of
the employee involved. The arbitrator properly applied his mind to
this issue, and in my view properly excluded and implicitly
rejected
evidence which sought to justify the employee’s conduct on the
basis that she was a shop steward. In fact, for this
very reason her
conduct should have been dignified and respectful.
[23]
Mr Moshoana submitted that if the test on review is applied it is
apparent that the award of the arbitrator in one which a
reasonable
decision maker faced with such overwhelming evidence against the
employee, could reach. There is no basis for this Court
to infer that
the award falls out of the bounds of reasonableness and there is
therefore no basis for this Court to interfere with
it. The
arbitrator complied with the basic duty imposed on him as set out in
Sidumo
:
“
While
cognisance should properly be taken of the circumstances under which
commissioners’ work, this is no excuse for making
unsubstantiated statements or reasons for a conclusion. At the
bare minimum, an award should set out facts found and the
reasons for
the finding, the conclusion based on those facts and the reasons for
the conclusion”.
[4]
[24]
I agree.
The arbitrator has provided
detailed reasons which are not capable of being assailed under the
reasonableness test. Although the
reference to “gross’
insolence is incorrect this is not in itself a gross irregularity –
from the context of
the award the arbitrator applied his mind to all
the issues and the relevant material and reached a conclusion that
was reasonable
and justified in the circumstances. Furthermore it is
not correct that he totally ignored the evidence led by the
applicants –
he states for instance in his analysis that “
all
the witnesses
” except the
employee testified that the 15 July meeting was not about
restructuring consultation but discussed the functional
move of Bid
Department employees. Given that this was not a consultative meeting,
and that evidence was led that consultation with
the first applicant
was occurring at another level in the business, he was justified in
concluding that the employee had not attended
the meeting in the
capacity of shop steward.
[25] I now turn to deal
with the grounds for review not canvassed in argument :
(a)
The inconsistency issue was not raised as a ground of review in the
pleadings. However,
even if it were properly before the Court, there
is no merit in this ground of review given that the arbitrator
considered submissions
from the parties, the pre-arbitration minute
and other relevant documents, and issued a ruling expressly excluding
the “Consistency
document”. Since it is common cause that
the applicants do not take issue with this ruling they cannot now
raise this as
a ground of review. It is trite that a commissioner is
empowered by section 138 of the LRA to conduct the arbitration
proceedings
in a manner he or she considers appropriate in order to
determine the dispute fairly and quickly. This includes the power to
decide
what evidence will be allowed and disallowed : See
Moloi v
Euijen & Another
[1997] 8
BLLR
1022
(LC) referred to
by Basson J in
Sondolo IT (Pty) Ltd v Gordon Howes and Others
(unreported case number JR3217/06). Accordingly this ground of review
must fail.
(b) In my view the
admission of the minutes did not constitute a gross irregularity in
the proceedings. The applicants moreover
did not dispute the contents
of the minutes and do not suggest that if they had not been admitted
the outcome of the arbitration
might have been different.
(c) I
do not propose to the deal with the additional irregularities. They
were not addressed in the heads or oral submissions and
in any event
would appear to be singularly lacking in merits.
Order
[26]
Therefore, I make the following order:
The
review application is dismissed, with costs.
_______________________
Bhoola
J
Judge
of the Labour Court
Date
of hearing: 5 August 2010
Date
of judgment: 10 September 2010
Appearances:
For
the Applicants: Mr X Ngako, Ruth Edmonds Attorneys
For
the First Respondent: Mr G N Moshoana, Mohlaba and Moshoana Inc.
[1]
At
[30].
[2]
At
par [24].
[3]
At
para [20].
[4]
At
para [283].