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[2011] ZALCJHB 184
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Ndhlovu v Commission for Conciliation Mediation and Arbitration and Others (JR442/2010) [2011] ZALCJHB 184 (30 July 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
NOT REPORTABLE
CASE NO:
JR442/2010
In the matter between:
FANI COSMUS NDHLOVU
APPLICANT
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
1
ST
RESPONDENT
NKOSINATHI MASEKO (COMMISSIONER)
2
ND
RESPONDENT
ATLAS CRANE HIRE
3
RD
RESPONDENT
JUDGMENT
Nkutha AJ
Introduction
The applicant, Mr Fani Ndhlovu [“the applicant”],
an employee of the third respondent, seeks an order reviewing and
setting aside the arbitration award issued by the second respondent
[“the commissioner”] under case number GAJB 27829-09
dated 23 December 2009. In terms of that arbitration award, the
commissioner found the dismissal of the applicant to have been
substantively and procedurally fair.
This matter was unopposed and the applicant
unrepresented. However, Mr Levin appeared on behalf of the third
respondent who, after
looking at the court file, decided not to
oppose the matter.
The order was handed down with brief reason on the date
of the hearing. This judgment provides detailed reasons for the
order
thereof.
Background facts
The applicant was employed by the third respondent as a
crane operator and was placed at Group Five in Witbank. The third
respondent
is in a business of leasing cranes to construction
companies and at that time it had a contract with Group Five. The
applicant
was the only crane operator and the third respondent
relied on him to meet its contractual obligations with Group Five.
The nature of the contract dictated that applicant
worked over weekends and for the duration of the project he was
offered accommodation
in a guest house at the third respondent’s
cost.
The applicant was dismissed for dishonesty, absence
without permission and putting the company’s name into
disrepute by
sleeping in a car.
The third respondent led evidence at arbitration to
show that the applicant had asked for weekend off to see his family.
However,
permission was denied because Group Five had asked for the
services of the crane that particular weekend. Mr Sizane, the
applicant’s
supervisor testified that he was the only person
who could authorise the applicant’s weekend off and not Mr
Robert Mchunu,
a Group Five foreman, as alleged by the applicant.
However, when approached Mr Mchunu denied having given the applicant
permission
to take weekend off.
The applicant was also charged with sleeping in his
car, despite having a comfortable accommodation paid for by the
third respondent
and thereby putting the company’s name into
disrepute. Mr Sizane testified that there were other employees who
were using
the facility and did not complain. However, the applicant
had told him that he wanted to be moved from the guest house to a
hostel
he had been accommodated in before and that he be paid the
difference in terms of costs. According to Sizane that offer was
rejected
because the applicant had complained about the said hostel
and hence he was relocated to the guest house.
In his defence, the applicant was adamant that Mr
Mchunu had given him the permission. On the issue of sleeping on
duty, the
applicant testified that his room had evil spirits and
spells. As a result, he could not sleep in that room and decided to
sleep
on his car.
The grounds for review and the award
The applicant contended that the arbitration award was
reviewable based on commissioner’s irregular conduct in that
he failed
to have regard to the evidence presented during the
arbitration proceedings, and in particular the mitigating
circumstances.
The legal principles and analysis
Even though this matter was unopposed it is incumbent
upon the Court to establish whether or not there is a
prima facie
case to interfere with the arbitration award on review.
Section 145 of the Labour relations Act 66 of 1995
[“the Act”] provides limited grounds for review and is
suffused
by the constitutional standard of reasonableness.
1
In essence, the applicant must show that the decision reached by the
CCMA commissioner is one which a reasonable decision maker
could not
reach.
2
The courts have clearly stated that the issue of
whether or not the commissioner committed a gross irregularity or
failed to apply
his or her mind demands a survey as to whether or
not the commissioner did afford the complainant a full and fair
hearing by
determining all the issues which were placed before the
arbitrator during the arbitration proceedings. The inquiry in this
respect
focuses on the method or conduct of the decision-maker and
does not concern itself with the correctness of the decision reached
by the arbitrator.
Application of the legal principles
The applicant submitted that he had been afforded full
and fair hearing by the commissioner. He contended further that he
had
no qualms with the conduct of the commissioner as he conducted
himself professionally.
However, he submitted that he subsequently managed to
obtain more evidence in his defence and would to like to present it
to court.
The applicant seemed to be more perturbed by the fact that
he had not received his pension payout. The applicant was
accordingly
advised that the court has no jurisdiction over the
issue of unpaid pension and was advised to seek assistance with
legal aid
institutions like ProBono.org.
It is my view, based on the arbitration award, that the
commissioner succinctly dealt with evidence before him and made a
rational
decision. It is clear from his analysis of evidence that
the applicant failed to call Mr Mchunu who could have vindicated him
on the charges of dishonesty and absence without permission. It is,
however, conspicuous in the applicant’s founding affidavit
that he no longer alleges that it was Mr Mchunu who had given him
permission to be absent but Mr Wurth, one of the third applicant’
senior managers. He failed to give an explanation for changing his
version when invited to do so in court.
The applicant conceded that he was the only crane
operator. While the third respondent led evidence to prove that the
applicant’s
conduct jeopardised its contract with Group Five.
On the charge of putting the third respondent’s
name in disrepute, the commissioner rejected the applicants’
evidence
that his room had bad spells because there were other
employees who used the same facility with no problems.
The applicant was clear in his submissions that he was
not challenging the conduct of the commissioner, and nor his reasons
for
the arbitration award. In essence, the applicant seeks to appeal
the arbitration award. In
Sidumo
the
Court stated, quoting from Professor Hoexter, that review for
reasonableness does tend to blur, in a limited sense, the
distinction between appeal and review as it entails scrutiny of the
merits of administrative decisions. Nonetheless, it was stated
further that “...the danger lies, not in careful scrutiny, but
in 'judicial overzealousness in setting aside administrative
decisions that do not coincide with the judge's own opinions.”
3
Accordingly, the task of this court is to ensure that
the decisions taken by CCMA commissioners fall within the bounds of
reasonableness
as required by the Constitution.
4
In the matter at hand, it is clear that the commissioner aptly
applied his mind to the evidence which was before him during the
arbitration hearing. The arbitration award accordingly constitutes a
reasonable finding and I find no reason to set it aside.
In the premises, the following order is made:
The application is dismissed.
There is no order as to costs.
_______________
Nkutha AJ
Date of hearing: 20 July 2011
Date of reasons for Judgment: 30 July
2011
Appearances
For the Applicant: Unrepresented
1
The grounds for review set out in section 145(2) are as follows:
“
(a) that the commissioner -
(i) committed misconduct in relation to the duties
of the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct
of the arbitration proceedings; or
(iii) exceeded the commissioner’s powers.”
2
See
Sidumo & Another v Rustenburg Platinum Mines Ltd &
Others
(2007) 28 ILJ 2405 (CC) at para108.
3
See
Sidumo
at
para 109.
4
See
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs & others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 45.
7