About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2011
>>
[2011] ZALCD 37
|
|
Pillay v Commission for Conciliation Mediation and Arbitration and Others (D302/08) [2011] ZALCD 37 (6 October 2011)
3
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT DURBAN
CASE NO D302/08
In
the matter between:
PRUSHOTHMAN
SUBRAMONEY PILLAY
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
DR
HILDA GROBLER N.O
Second Respondent
UNIVERSITY
OF KWAZULU-NATAL
Third Respondent
RULING: APPLICATION
FOR LEAVE TO APPEAL
___________________________________________________________________
VAN
NIEKERK J
[1] This is an
application for leave to appeal against part of a judgment by this
court handed down on 1 September 2011, and in
particular those parts
of the judgment in which the court determined, on review, the
applicant’s challenges to the finding
of the second respondent
(‘the commissioner’) on substantive fairness.
[2] In its order, the
court reviewed the commissioner’s award to the extent that the
she failed to determine whether the
applicant’s dismissal was
procedurally fair. For the sake of convenience, the terms of the
order are the following:
1. The arbitration
award issued by the second respondent under case no KNDB 11631-07 is
reviewed, to the extent that it is declared
that the second
respondent committed a reviewable irregularity by failing to
determine whether the applicant’s dismissal
was procedurally
fair.
2. The matter is
remitted to the second respondent. The second respondent is directed
to determine whether the applicant’s
dismissal was procedurally
fair.
3. In the event that
the second respondent determines that the applicant’s dismissal
was procedurally unfair, the second respondent
is directed to make an
appropriate order for compensation.
The determinations
referred to in paragraphs 2 and 3 of this order must be made within
30 days of the date of this order.
The third respondent
is to pay 50% of the costs of these proceedings, such costs to
include the engagement of two counsel.
[3] In essence, the
grounds for the present application are that the court erred failing
to set aside the commissioner’s decision
that the relationship
of trust between the applicant and the third respondent had broken
down to an extent that given the nature
of his admitted misconduct,
dismissal was an appropriate sanction.
[4] The applicable test
was referred to in the judgment – the LRA makes provision for
the setting aside on review of arbitration
awards for both
result-based defects, as well as for process-related irregularities
(see Ellerine
Holdings Ltd v CCMA & others
1
and
Maepe v
CCMA & others
2
).
In
Ellerine
Holdings
,
Davis JA said the following (at 2903F):
"…When all
of the evidence is taken into account, when there is no irregularity
of a material kind in that evidence
was ignored, or improperly
rejected or where there was not a full opportunity for an examination
of all aspects of the case, then
there is no gross irregularity…”
[5] The court observed
that the commissioner had correctly approached the issue of any
breakdown in trust as a factual question
– “
It is a
simple question of fact: Either an employer trusts an employee, or it
doesn’t.
” Further, the commissioner the commissioner
took into account the relevant facts, and came to a decision. In so
far as the
attack on the commissioner’s finding is result
based, the fact that the commissioner’s decision is not correct
is irrelevant
– what matters is whether the decisions falls
within a band of decisions to which reasonable people could come on
the available
material. In so far as the applicant’s attack is
process-based, a review court similarly deals with a test of
reasonableness.
It is only where a commissioner makes a finding that
is based on speculation, or is not supported by evidence that is
sufficiently
reasonable to justify the decision, or that is made in
ignorance of evidence that was not contradicted, that the
commissioner arrives
at a decision to which no reasonable decision
maker could reach.
[6] In the present
matter, the facts before the commissioner were that the applicant had
intentionally and on a number of occasions
told an elaborate lie
under oath fully appreciating that if believed; his lie could harm
the third respondent, undermine the findings
of a commission of
enquiry and lead to adverse credibility findings against persons who
held senior positions. Further, the applicant
held a senior position
of trust. Finally, the independent chair of the disciplinary enquiry
recommended his dismissal, a recommendation
that was unanimously
upheld by the third respondent’s council. In so far as the
third respondent’s evaluation of the
evidence is concerned,
there was only the evidence of a Mr Young to the effect that he would
continue to trust a person in the
applicant’s position. This
view was modified in cross examination, and is hardly the basis for a
finding that the unanimous
decision by council was unfair. The
commissioner’s finding also resonates with recent decisions by
the Labour Appeal Court
to the effect that minor acts of dishonesty
generally justify dismissal (see, for example,
Miyambo v
Commission for Conciliation Mediation and Arbitration
, (2010) 31
ILJ
2031 (LAC), in which the Labour Appeal Court (per Patel
JA) emphasised the importance of trust between employer and employee.
I
am not persuaded that that court might reasonably come to a the
conclusion that it was unreasonable of the commissioner to uphold
a
finding by council that the applicant should be dismissed for
deliberately intending to mislead a tribunal headed by a retired
judge given the potential consequences that existed.
I accordingly make the
following order:
Leave to appeal is
refused, with costs.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR
COURT
6 October 2011
1
(2008) 29
ILJ
2899 (LAC)
2
[2008] ZALAC 2
;
[2008] 8 BLLR 723
(LAC)