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[2011] ZALCJHB 131
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Moodley v Commission for Conciliation Mediation and Arbitration and Others (JR 1403/10) [2011] ZALCJHB 131 (20 May 2011)
Not reportable
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO JR 1403/10
In
the matter between:
MOODLY,
PATRICK
................................................................................
APPLICANT
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
.....................................................................
1
ST
RESPONDENT
TM
GRAHAM
................................................................................
2
ND
RESPONDENT
PIONEER
FOODS IN STORE
......................................................
3
RD
RESPONDENT
JUDGMENT
VAN
NIEKERK J
[1] This is an unopposed
application to review and set aside an arbitration award made by the
second respondent (‘the commissioner’).
In his award, the
commissioner ruled that the applicant’s dismissal by the third
respondent was substantively and procedurally
fair.
[2]
The arbitration proceedings concerned the applicant’s absence
from work for the period 24 November 2009 to 10 December
2009. The
commissioner found that in term soft e third respondent’s
policy, absence from work for a period in excess of three
days
warranted dismissal, and upheld the applicant’s dismissal, it
would seem, on that basis. The commissioner’s reasoning
is
apparent from the analysis of the evidence and argument. In this
regard, the commissioner states the following:
From my reading of the
evidence and observation of the respondent’s witnesses it
appeared that they all corroborated with
each other on relevant and
material aspects of this matter. For instance, all witnesses
corroborated with each other in that they
were aware that absenteeism
in excess of three days warranted dismissal in terms of their
disciplinary code. The applicant’s
version was that the
respondent was not consistent in its application of discipline was
never corroborated by any of the witnesses
whom he called to testify
on his behalf.
I
find that the respondent’s witnesses were credible and their
evidence was truthful and I have no reason to doubt their narration
of events
On
the other hand I find that the applicant failed to meet the simple
charges against him and as a result he resorted to base his
case on
issues relating to his unfortunate personal circumstances for
instance he based the entire challenge respondent was aware
that he
suffered from stress and depression related ailments. The facts about
his health issues were never placed in dispute by
any of the
respondent’s witness. The fact remained that he failed to
report to his line manager of his whereabouts for the
period 24
November 2009 to 10 December 2009. In the circumstances I am
satisfied that the applicant was aware that he had failed
to inform
the respondent of his whereabouts for the specified period in
dispute. I am of the view that there are no sufficient
grounds for
the applicant to sustain his argument that the respondent was not
sympathetic to his personal circumstances.
[3] In his founding affidavit,
the applicant contends that the arbitrator misconducted himself in
that he found in favour of the
third respondent on the issue of
consistency in the application of discipline, and that he ignored the
third respondent’s
admission that no disciplinary action was
taken against the applicant in respect of the period of absence from
October to November.
In his supplementary affidavit, filed after the
record of proceedings had been reconstructed, expanded the grounds of
review to
include inter alia the contentions that the commissioner
ignored undisputed and material evidence that the applicant was
depressed
during his absence from work, that the commissioner
misconstrued evidence, that the commissioner falsified material
evidence, and
that the commissioner ignored an admission from the
third respondent that they had failed to act in identical
circumstances shortly
before the incident for which the applicant was
dismissed, that the commissioner ignored undisputed evidence that the
applicant
had been led to believe that he did not require permission
to be absent, that the conclusion that the dismissal was procedurally
fair was not one that a reasonable decision maker could reach, that
the commissioner’s decisions regarding the credibility
of the
third respondents witnesses cannot be sustained by the evidence.
Legal
principles
[4]
The test to be applied in these proceedings is now well established.
It requires the court to determine whether the commissioner’s
award is a decision to which no reasonable decision-maker could come
(see
Sidumo &
others v Rustenburg Platinum Mines Ltd
(2007)
28
ILJ
2405
(CC)). This is not to say that the enquiry is limited to the outcome
or result. In relation to process, the commissioner is
required to
conduct him or herself as a reasonable commissioner would.
[5]
The courts have emphasised that the test is one that maintains the
distinction between reviews and appeals. In
Ralph
Dennis Dell v Seton South Africa (Pty) ltd & others
(case
no JA 33/09) the Labour Appeal Court recently said:
It is important to note
that the labour court was not sitting on appeal against the award of
the commissioner. It is imperative
that the distinction should always
be observed. I mention this fact at this stage because the appellant
contends that the labour
court erred in coming to or erred in failing
to come to a number of factual conclusions. Put differently, the
appellant’s
main contention is that the commissioner made
several incorrect factual findings in finding him guilty of the
misconduct charges
levelled against him
(at
paragraph [31] of the judgment).
[6] Virtually all of the
grounds for review raised by the applicant ignore the distinction
between an appeal and a review, and misconstrue
the test established
by the
Sidumo
judgment.
Correctness is not in issue. The issue is whether the decision to
which the commissioner came falls within a band of decisions
to which
reasonable persons could come given the available evidence. But it is
further evident from the
Sidumo
judgment
that the requirement of fairness dictates that CCMA arbitration
proceedings should be conducted in fair manner, and that
fairness in
the conduct of the proceedings requires a commissioner to apply his
or her mind to the issues that are material to
a determination of the
dispute. Where a commissioner fails to apply his or her mind to the
issues, it can hardly be said that there
was a fair trial of the
issues . Any ensuing award in these circumstances falls to be set
aside because the commissioner committed
a gross irregularity in the
conduct of the proceedings, not because the result is wrong (see
paragraph [267-8] of the judgment).
[7]
To this extent, there is merit in applicant’s contention that
the commissioner failed to apply his mind to the issue off
consistency. The issue appears to have been decided on the basis of
credibility – the commissioner clearly accepts the version
proffered by the third respondent’s witnesses as credible and
rejects the applicant’s version on the basis that it
was not
corroborated by his own witnesses. This finding was entirely
unnecessary – it is clear from the record that the applicant
had been absent from work from 26 October 2009 to 6 November 2009, in
circumstances where no disciplinary action was taken against
him.
This proposition was disputed by the witness to whom it was put in
cross examination. In other words, it was not in dispute
that the
applicant had been absent from work from 26 October to 6 November
2009, and that no disciplinary action had been taken
absent him. The
applicant’s contention that the internal inconsistency in the
third respondents conduct (by taking disciplinary
action against him
only in respect of his absence from 24 November to 10 December 2009)
was unfair is simply not addressed.
[8]
For this reason, in my view, the commissioner failed to apply his
mind to a material issue before him, and on that basis, the
award is
reviewable. In these circumstances, it is not necessary for me to
consider any of the applicant’s further grounds
for review.
[9]
Turning to the question of an appropriate order, the applicant
submitted that the court ought to substitute the commissioner’s
finding with a ruling to the effect that his dismissal was unfair.
Although the court has a discretion to substitute a commissioner’s
award, this is an exceptional remedy. I am reluctant to make an order
for substitution in te present instance. Although an agreed
record of
the proceedings has been filed in these proceedings, it is not clear
to me that the existence of any internal inconsistency
in the
exercise of discipline necessarily has the consequence that the
applicant’s dismissal was unfair. In other words,
accepting for
the moment that the third respondent elected not exercise any right
to discipline the applicant in respect of the
first period of his
absence, the similarity of circumstance in relation to the period of
absence in dispute, if any, is a matter
best dealt with by argument
before another commissioner, as are the appropriate consequences.
For
these reasons, I make the following order:
1. The arbitration award made
by the second respondent on 21 May 2010 is reviewed and set aside.
2. The matter is remitted to
the CCMA for a fresh arbitration hearing before a commissioner other
than the second respondent
3. There is no order as to
costs.
ANDRE VAN NIEKERK
JUDGE
OFTHE LABOUR COURT
Date of application 29 April
2011
Date
of judgment 20 May 2011
5