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[2012] ZALCD 12
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SAMWU and Others v South African Local Bargaining Council and Others (D 491/10) [2012] ZALCD 12 (20 September 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
case no: D 491/10
In the matter between:
SAMWU
.............................................................................................................
First
Applicant
S.
B. MKHUNGO
..........................................................................................
Second
Applicant
R.
NTAKA
........................................................................................................
Third
Applicant
and
SOUTH
AFRICAN LOCAL BARGAINING COUNCIL
..................................
First
Respondent
N
DUBAZANE
.........................................................................................
Second
Respondent
ETHIKWINI
MUNICIPALITY
........................................................................
Third
Respondent
Heard
:
21 August 2012
Delivered
:
20September 2012
Summary: Review: Application to review arbitrators finding that
applicants guilty of misconduct and that dismissal appropriate
sanction
but that dismissal procedurally unfair. No cross review.
Award not reviewable. Application dismissed.
judgment
GUSH J
This is an application by the applicants to review and set aside the
award of the second respondent who found the third respondent’s
dismissal of the second and third applicants to have been
procedurally unfair but substantively fair. The second respondent
ordered the third respondent to pay to the second applicant
compensation in an amount of R6,289.20 and to the third applicant
R15,866.18. Coupled with this award was a cost order that the second
and third applicants pay wasted costs occasioned by postponement
of
the arbitration on 14 December 2009 and both the second, third
applicants and the third respondent to pay certain arbitration
fees
in equal proportions.
The first applicant is the trade unionof which the second and third
applicants are members. The applicants’ application
is to
review and set aside the second respondent’s award and
substitute it with a finding that the dismissal of the second
and
third applicants was substantively unfair and an order that they be
reinstated.
There is no cross-review by the third respondent.
The second and third applicants were employedby the third respondent
as a small plant operator and electrician respectively.
Both the
second and third applicants were duly appointed shop stewards and
had 20 and nine years service respectively.
On 15 July 2008, at the third respondent's South Western depot,
where the second and third applicants’ were stationed,
there
had beena disruption amongst the third respondent’s employees
and had resulted inthe gates to the depot had been
locked thereby
preventing anyone, including employees of the third respondent and
contractors employed by the third respondent
from entering or
leaving the premises and performing their duties.
The depot manager had summoned the second and third applicants to
his office where he had advised the applicants that it was
unacceptable that the gates had been locked and that they were to be
opened. The applicants had advised the manager that the
gates would
only be opened if he agreed to meet with the staff. The manager had
agreed and had proceeded to the venue where he
was to meet with the
staff. Despite this the applicants had not immediately opened the
gates, but had done so only after the
manger had once again asked
that the gatesbe opened after he had arrived at the venue for the
meeting. After the incident, involving
the disruption and thefailure
by the second and third applicantto open the gates after having been
told to do so , the second
and third applicants were both accused of
and charged with misconduct. The charges of misconduct levelled at
both second and
third applicants were:
‘
...
Illegally
locked the gate of South Western depot, preventing the electricity
staff and contractors from entering and leaving the
depot to perform
their duties, i.e. repairs to electrical infrastructure and
construction of electrical infrastructure. In so
doing, you
disrupted the operation of the employer, thereby contravening clause
1.2.11.
In view of the above you acted
against the organisational rights agreement clause 8.6.1 and 8.6.3
thereby contravening clause
1.1.
In having locked the gates to
the depot [you] were insolent, provocative and intimidatory toward
your manager, Mr Dalton, thereby
contravening clause 1.2.9.
Refused to open the gates when
Mr Dalton told you to open the gates showing gross insubordination,
thereby contravening clause
1.2.4.’
(Mr Dalton is the third respondent’s manager of its South
Western maintenance division and depot where the incident took
place.)
The references in the charge sheet to “clauses” are
references to clauses in an annexure to the Disciplinary Procedure
Collective Agreement: Conduct and Sanctions, which regulates the
disciplinary proceduresapplicable to the third respondent and
its
employees and is part of a collective agreementto which the first
applicant and the third respondent are parties.
The applicants included in the bundle of documents in this matter
the entire record of the disciplinary enquiry the enquiry
chairperson’s finding regarding the second and third
applicant’s guilt and the chairperson of the disciplinary
enquiry’s
finding as to sanction. The disciplinary enquiry
into the second and third applicants’ alleged misconduct was
conducted
over a number of days, commencing in August 2008 and was
eventually finalised in February 2009.
The enquiry chairperson’s finding in relation to the charges
isthorough and well reasoned. . The chairperson having examined
the
evidence in detail came to the conclusion, seemingly correctly, that
the second and third applicants were both guilty of
all four counts
of misconduct, and in a separate written finding, having heard
evidence in mitigation, dismissed both second
and third applicants.
It is this decision that the applicants referred to the first
respondent and which was the basis of the arbitration that followed.
In contrast with the finding of the chairperson of the disciplinary
enquiry the second respondent somewhat surprisingly, on essentially
the same evidence, came to the conclusion that the second and third
applicants were not guilty of the misconduct set out in charges
one
two and three, and specifically that they had not “illegally
locked the gate”.
In respect of charge 1,the second respondent in her award, recorded
that the third respondent had only led one witness,namely
the
security guard Ndlazi, whohad identified the second and third
applicants as the persons who had taken the keys from him and
had
locked the gate. The second respondent then referred to the fact
that the second and third applicants had simply denied this,
and
came to the astounding conclusion ‘it is the law that if there
are two conflicting versions, the party that has to
discharged the
onus must lose’.
On the strength of this conclusion regarding charge one, the second
respondentthen held that as charges two and three "talk
to
charge number 1" that the second and third applicants were
accordingly not guilty of the misconduct set out in these
two
charges
The second respondent persisted with this somewhat confused logic in
coming to the conclusion that the dismissal of the second
and third
applicants was procedurally unfair.
The reasoning behind the conclusion that the disciplinary enquiry
was procedurally unfair was simply that the collective agreement’s
disciplinary procedure provided that the presiding officer of a
disciplinary enquiry should be a senior employee or if this was
not
possible any other suitably qualified person and that the presiding
officer was not such an employee.
In the award, the second respondentnoted that: ‘with regard to
procedure, a person who chaired hearing was not council
employee’.The second respondent recordedin respect of the
issue of procedural fairness the following:
‘
No
evidence was led by the respondent to suggest that it was not
possible or desirable to employ a senior employee in its employee
which then necessitated appointment of another suitably qualified
person. In the absence of evidence to this effect, I am led to
conclude that the respondent committed an irregularity with regards
to procedure.’(sic)
1
Without any evidence regarding, or further consideration of, the
effect that this might have had on the fairness or otherwise
of the
disciplinary enquiry the second respondent simply concluded in the
award that:
‘
On the
balance of probabilities I find that the dismissal of the applicants
was procedurally unfair...’
2
The second respondent however in respect of charge four,concluded
that the second and third applicants were guilty of this charge
in
that the second and third applicants had"... refused to open
the gates when Mr Dalton told [them] to open the gates showing
gross
insubordination, thereby contravening clause 1.2.4". The second
found that the applicants’ were guilty not only
of “showing
gross insubordination” by refusing to open the gates when told
to by the third respondent’s manager
misconduct but that their
conduct was serious enough to justify thesanction of dismissal.
It is appropriate to record that the second respondent’s
conclusions as set out in the award, in finding of the second
and
third applicants guilty of misconduct and dismissing them, accord
largely with the disciplinary enquiry chairperson’s
comments
regarding charge four viz:
Charge 4: the two employees
[second and third applicants] were no doubt that Dalton was upset
about the gates being closed ... were
in no doubt that he wanted the
gates opened ... Instead of immediately opening the gates they ...
informed Dalton that the gates
would be opened if he agreed to hold a
meeting with the staff... Clearly their behaviour ... amounts to a
refusal to open the gates
and accordingly the two employees are
guilty of this charge as well’
The decision of the chairperson of the disciplinary enquirywas that
the applicants were guilty of all the charges of misconduct
but
however in respect of charge 4, the chair of the disciplinary
enquiry said the following:
‘
Their
duty [second and third applicants] is not to carry out orders from
the employees. Their duty is to obey the lawful and reasonable
instructions from their manager. Mr Dalton gave an eminently
reasonable and lawful instruction i.e. ‘it is unacceptable that
the gates are closed please open the gates.’ They refused to do
so unless the meeting was held. Gross insubordination has
always been
accepted by courts as an appropriate sanction for dismissal.’
3
In applying to review and have the award of the second respondent
set aside, the applicantsconfined their applicationsolely to
two
grounds of review:
Firstly that ‘given the second and third applicants years of
service and clean disciplinary record dismissal was not
warranted’:
4
and
Secondly that the second and third applicants were not guilty of
insubordination and in particular gross insubordination.
5
In the surprising absence of a cross-reviewin respect of the
findings of the second respondent regarding charges 1 2 and 3 and
that the dismissal was procedurally unfair,the court is confined to
considering the reviewability or otherwise of the award based
on
thetwo grounds of review raised by the applicants. Having elected
not to challenge the award of the second respondent, apparently
satisfied with the outcome of the arbitration, the third
respondentconfined itself in opposing the applicationto these
grounds
of review only.
In explanation of the grounds of review, the second and third
applicants in their supplementary affidavit state the following:
‘
Dalton’s
evidence was that he called the second and third applicants tomeeting
at his office to enquire about the closure
the gates, during which
meeting he "asked them to open the gates" and, after some
discussion, "it was eventually
agreed that if (Dalton) went and
had a meeting ... the gates would be open
Dalton attended the meeting, and
the gates were opened. The second respondent found that an
instruction had been given to the second
and third applicants to open
the gate.
What the second respondent
ignored is the fact that they discussion ensued after Dalton's
request
(not an unequivocal
instruction), after which discussion and agreement was reached on the
opening the gate -this does not amount
to a flat-out (sic
)
refusal to open the gate (which
could amount to insubordination).’
The applicants in additionaverred that evenif the second and third
applicantswere insubordinate, it was not gross insubordination
and
that the sanction of dismissal was not reasonable.
Faced with two conflicting versions of what transpired on the day in
question, the second respondent in making the award preferred
the
version offered by Dalton and the third respondent's witnesses, (set
out in more detail below)namely that Dalton had summoned
the second
and third applicants to his office where he had asked them to open
the gate. Dalton’s evidence was that in response
to his
instruction that the gates be opened he was advised by the second
and third applicants and the gates would only be opened
if he agreed
to meet with the staff, despite having agreed to meet with the staff
the gates had not been opened immediately.
The second and third applicants’ versions as to what
transpired appear from the record: Mkhungo gave evidence to the
effect that he had had a meeting with Dalton in his office after
Dalton had advised him that the gates were closed whilst he was
at
his motor vehicle in the depot yard. Later when referring to his
meeting with Dalton in his office he said the following:
‘
Mr
Mkhungo [second applicant]: Dalton mentioned that the gate was locked
... and he said it was unacceptable for the gate to be
locked. ...
When he said that the gate must be opened
...’
6
Ntaka on the other offered the following version:
‘
Mr
Ntaka [third applicant]:
we’ve
never closed the gate so therefore I don't see any reason why I
should refuse to open a gate that I have never closed
... I never
refused to open the gates and in fact I've never received an
instruction to open the gate’
7
In her award,the second respondent, in finding the applicants’
guilty of gross insubordination recorded:
The applicants breached rule referred to in charge 4;
Reject[ed] the second applicant's version that Dalton had
approached him whilst he was seated in his motor vehicle in the
yard;
Accept[ed] Dalton’s version of what transpired on the grounds
that it was more probable and corroborated; namely that
he (Dalton)
asked the applicants to open the gate and that he was told that the
gate would be opened only if he attended a
meeting with the staff
at the lecture room;
That both applicants admitted that Dalton had said that the gate
must be opened, that this was an instruction;
That there was no evidence to suggest that the instruction was
unreasonable and unlawful; and
That both applicants conceded that the locking of the gate was
illegal and unacceptable.
8
The relevant evidencewhich the second respondent took into account
and accepted, in reaching the decision in the award is Dalton’s
explanation of the exchange between himself and the second and third
applicants. Dalton had been advised that the gates to the
depot had
been locked by the second and third applicants preventing
contractors from entering or leaving the premises. He called
the
second and third applicants to his office in order to deal with this
issue. He enquired from the second and third applicants
what was the
reason for the gates to be locked and was advised by them that they
had been locked because the staff wanted to
meet with him. He
evidence was that he advised the second and third applicants that it
was unacceptable that the gates been locked.
He said that he asked
the second and third applicants to open the gates. In response
thereto he was told that the gates would
only be opened if he,
Dalton, had a meeting with the staff. He had agreed to meet and had
proceeded to the lecture room to attend
the meeting. On arrival,he
ascertained that the applicants’ had still not opened the
gates despite his agreement to meet
with the staff and he again
asked them to open the gates. The transcript of Daltons evidence
reflects:
‘
I was
told that the gates would only be opened if I had a meeting with the
staff, and after a short discussion with the shop stewards
agreed
that they would unlock the gates if I had a meeting with the
staff,...the discussion was about opening the gates and attending
the
meeting. Eventually it was agreed that if I went and had a meeting at
the gate would be opened.
The Labour and staff were
eventually assembled in the training room and I proceeded to the
training room with Denzel Greeves and
Dougie Miles.
We proceeded to the training
room and when I arrived there I spoke to the shop stewards and asked
them to unlock the gates before
I proceeded with the meeting. The two
shop stewards left the meeting area, the training room, and I asked
Dougie Miles just to
check and see whether the gates were open. He
informed me that the gates had been opened, and I proceeded with the
meeting once
two shops goods and return to the meeting area.’
Dalton went further to explain:
‘
... I
would have agreed to a meeting without any gates been locked or
anything like that, and when they said that the gates would
only be
opened once I held a meeting with them, I felt intimidated into
making a decision that I would have agreed toanyway without
any
threats being made to me or anything like that’
9
Based on this evidence, the second respondent in the award
reasonably concluded as follows:
‘
The
question then is did the applicants open or get the gate opened on
receiving the instructions? Evidence led is that this did
not take
place but Dalton was merely informed that the gate would only be
opened if he attended the meeting with staff at the lecture
room. It
was also evidence that the gate was opened after Daltonsaid again at
the lecture room that the gate must be opened before
he commences
meeting as he had then heeded staff call to the meeting.
His
instruction to the applicants was still not carried out when he
arrived at the lecture room.
Insubordination requires either
disobedience or challenge to authority which is deliberate and
serious.In this case I find that
the instruction was reasonable and
lawful. I also find that there was a challenge to authority which was
deliberate and serious.
I therefore in the circumstances conclude
that the respondent's version that the applicants committed gross
insubordination
is more probable than that of the applicants
that they did not.’
Having so concluded the second respondent continued to consider
"whether the dismissal [was] an appropriate sanction".
The
second respondent took into account the second and third applicants’
length of service their disciplinary record and
the circumstances of
the misconduct and concluded that dismissal was the appropriate
sanction.
The test on review was enunciated in
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
10
and
is succinctly summarised
in Edcon Ltd v Pillemer NO and Other
s
11
.
In this matter, Mlambo JA said the following:
‘
Reduced
to its bare essentials, the standard of review articulated by the
Constitutional Court is whether the award is one that
a reasonable
decision maker could arrive at considering the material placed before
him.’
12
Whilst this is the overarching consideration when determining the
reviewability or otherwise of an award of a Commissioner, it
is also
so that consideration isbe given to the provisions of section 145 of
the Labour Relations Act in order to determine whether
the process
adopted by a commissioner in reaching a decision constitutes “a
defect” in the arbitration proceedings.
13
When considering whether an award is “one that a reasonable
decision maker” could arrive at, considering the evidence
or
material placed before the decision maker, the process the
arbitrator applied in consideration of the evidence is relevant.
Thefailure by an arbitrator to consider evidence or properly apply
his or her mind thereto may well amount to a defect as envisaged
by
section 145 of the LRA.In such circumstances it cannot be said
thatthe arbitratorhas actedas a reasonable decision maker would.
14
The applicants during their argument sought to rely on not only the
“
Sidumo
” test but also what they referred to as
the so-called “process related” test. Their argument was
that the second
respondent had not applied her mind to nor taken
into account the material placed before her, in making her award and
that accordingly
her award feel to be reviewed.
While the applicants in their notice of motion apply to review the
entire award, it is clear from the pleadings and the argument
that
it is only that portion of the award in which the second respondent
found that the second and third applicants’ dismissal
was
substantively fair that forms the subject matter of the review. As a
result, the applicants sought only retrospective reinstatement
and
the issue of compensation for procedural fairness that is part of
the award is not the subject of this application. It is
accordingly
necessary to consider not only whether the award is one that ‘a
reasonable decision maker could arrive at considering
the material’
but also whether there was“a defect in the arbitration
proceedings”
15
in that the second respondent committed misconduct or a gross
irregularity.
In so doing however the Court is essentially confined on reviewto
the the applicant’s two grounds of review;
Firstly that “given the second and third applicants years of
service and clean disciplinary record dismissal was not
warranted”;
and
Secondly that the second and third applicants were not guilty of
insubordination and in particular gross insubordination but
if they
were guilty of insubordination it was not gross.
16
The first issue to be decided is whether the conclusion by the
second respondent that the applicants’ conduct justified
their
dismissal is reviewable.
The third respondent’s Disciplinary Procedure Collective
Agreement records under the heading "standard of conduct"
clause 1.2.4 the requirement that employees obey all lawful and
reasonable instructions given by a person having authority to
do so.
The agreement includes guidelines regarding appropriate sanctions
for misconduct and records that the sanction imposed
must be based
on the seriousness of the offence and must take into account the
employees disciplinary record, that discipline
is progressive and
that sanctions will be applied by issuing warnings except in cases
of misconduct constituting grounds for
immediate dismissal. Clause
2.7.7 describes gross insubordination as conduct warranting
immediate dismissal.
In
Sidumo and Another v Rustenburg Platinum Mines Ltd and
Others
,
17
the Constitutional Court set out the approach commissioners should
follow when determining the fairness of a sanction imposed.
'In approaching the dismissal
dispute impartially a commissioner will take into account the
totality of circumstances. He or she
will necessarily take into
account the importance of the rule that had been breached. The
commissioner must of course 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. There are other
factors that will require consideration. For example, the harm caused
by the employee's conduct,
whether additional training and
instruction may result in the employee not repeating the misconduct,
the effect of dismissal on
the employee and his or her long-service
record. This is not an exhaustive list.
To sum up. In terms of the LRA,
a commissioner has to determine whether a dismissal is fair or not. A
commissioner is not given
the power to consider afresh what he or she
would do, but simply to decide whether what the employer did was
fair. In arriving
at a decision a commissioner is not required to
defer to the decision of the employer. What is required is that he or
she must
consider all relevant circumstances.'
18
And
'What this means is that the
commissioner . . . does not start with a blank page and determine
afresh what the appropriate sanction
is. The commissioner's starting
point is the employer's decision to dismiss. The commissioner's task
is not to ask what the appropriate
sanction is but whether the
employer's decision to dismiss is fair.
19
In
Fidelity Cash Management Service v CCMA andOthers,
20
Zondo JP enumerated what had been held in
Sidumo
viz:
'In terms of the
Sidumo
judgment, the
commissioner must:
(a) “take into account the
totality of circumstances”...;
(b) “consider the
importance of the rule that had been breached”...;
(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”...;
(d) consider“the harm
caused by the employee's conduct”...;
(e) consider“whether
additional training and instruction may result in the employee not
repeating the misconduct';
(f) consider“the effect of
the dismissal on the employee”...; and
(g) consider the employee's
service record.
...
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.’
21
22
There can be no doubt from the reading of the award that the second
respondent took into account these factors in concluding
that
dismissal was the appropriate sanction and satisfied the principles
enunciated above.
The applicants raised a further factor in considering the
appropriateness of the sanction during argument by arguing that the
second respondent had regarded the fact that the second and third
applicants were shop stewards as an aggravating factor. Ms
Linscott,who appeared for the applicants, suggested in her
supplementary, heads that as ‘the conduct of the applicants
was related to their functions as shop stewards ... that their
communication to Dalton of the workers demands was both fair and
acceptable’.
Apart from the fact that this issue was not dealt with in the
pleadings it is clear not only that the applicants conduct was
not
related to their function as shop stewards but the applicants’
misinterpreted the second respondent's conclusion and
the nature of
the misconduct of which the second and third applicants were
accused.
The second respondent did take into account the fact that the
applicants were shop stewards and appropriately dealt with this
issue. The second respondent recorded the following:
‘
I have
also considered the fact that the applicants were shop stewards. A
shop steward is meant to lead by example and furthermore
he or she
remains an employee and the employer is entitled to expect conduct
appropriate of that relationship. It can never be
right therefore for
a shop steward to advance as an excuse the argument that what he or
she did was done whilst pursuing the interests
of its members’
23
.
It must be born in mind that the conduct complained of, the
misconduct of which the applicants were found guilty and for which
they were dismissed was their refusalto open the gates when Mr
Dalton told them to open the gates which the second respondent
found
to amount to “showing gross insubordination”.
As far as the applicants’ second ground of review is
concerned, viz that the second and third applicants were not guilty
of insubordination alternatively if they were it was not gross
insubordination, there is no substance to the applicants’
argument that the exchange between Dalton and the applicants was
merely‘a discussion [which] ensued after Dalton's
request
(not an unequivocal instruction), after which discussion and
agreement was reached on the opening the gate’.(their
emphasis)
I am not persuaded that the conclusion reached by the second
respondent that Dalton had issued a lawful and reasonable
instruction
and that the response by the applicants prosecuted a
‘challenge to authoritywhich was deliberate and serious’
can
be said to be a decision atwhich a reasonable decision maker
could not arrive, given the material placed before the second
respondent.
The second respondent, correctly in my view, concluded that Dalton
had issued an instruction that was both lawful and reasonable,
and
thatthe evidence clearly established that the second and third
applicants refused to comply with the instruction.
In any event, the test on review is not whether the second
respondent was correct but whether the decision is one at which a
reasonable decision could arrive.
It is important to emphasise, as
is exemplified from
Carephone
,
and in
Schwartz,
supra
, that the
ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to
be correct by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensurethat this
distinction, however difficult it is to always maintain,
is
respected.
24
In fact, the applicants’ argument is essentially that of an
appeal as opposed to a review, viz. that the second respondent
came
to the wrong conclusion. It is a clearly established principle that
this Court may not have regard to grounds of appeal
when considering
an application to review an award of a Commissioner.
25
I am satisfied that the averments made in regard to the nature of
the exchange between Dalton and the applicants,viz that it
was no
more than a discussion followed by an agreement, accord with what
was held by Davis JA in
Bestel v Astral Operations Ltd and
Others:
26
‘
This
speculationis insufficient to justify a conclusion that [the
arbitrator’s] findings on facts supported by the evidence
was
insufficiently reasonable to justify his decision or made in
ignorance of uncontradicted evidence. On the
Sidumo
test
for review as I have outlined it, there was no basis by which [the
commissioner’s] award should have been set aside
27
It is so that I have no doubt that had the third respondent applied
to review and set aside the second respondent’s finding
that
the second and third applicants were not guilty of the conduct
describing charges 1,2 and 3 and the finding on procedural
fairness
that such a review would have succeeded. This issue however is not a
matter before me and is therefore not an issue
which I have taken
into account nor has it influenced the reviewability or otherwise of
the second respondent’s award with
regard to the fairness of
the second and third applicants’ dismissal. To take into
account the evidence that clearly linked
the second and third
applicants to the misconduct described in charges 1 2 and 3, which
the second respondent did not accept
and in respect of which the
second respondent found the second and third applicants not guilty
would in effect be tantamount
to a review of that part of the award
which neither party seeks to review.
I am satisfied that it is clear from the evidence/material placed
before the second respondent that the finding by the second
respondent that the applicants were guilty of gross insubordination
by refusing to open the gate unless the second respondent’s
Dalton agreed to meet with the staff is “one that a reasonable
decision maker” could arrive at and is accordingly
not
reviewable.
The applicants sought only an order reviewing and setting aside the
award and substituting it with a finding that the dismissal
of the
second and third applicants was unfair.
Having decided that the award is not reviewable,it remains to
consider the question of costs. I am of the view that requirements
of law and fairness do not warrant an order for costs.
Accordingly, I make the following order:
The applicants’ application is dismissed;
There is no order as to costs.
______________________
D H Gush
Judge
APPEARANCES
FOR THE APPLICANT: Adv S J Linscott
Instructed by Tomlinson Mnguni James Inc
FOR THE THIRD RESPONDENT: Adv V Naidu
Instructed by Hughes-MadondoInc
1
Award
para 5.14 pleadings page 48.
2
Award
para 5.20 pleadings page 49.
3
Disciplinary
enquiry record volume 1 page 84.
4
Founding
affidavit para 35 page 16 of the pleadings.
5
Founding
affidavit para 36 page 16 of the pleadings and paras 11 and 12 page
64 of the pleadings.
6
Record
page 675.
7
Record
page 606.
8
Award
para 5.7 and 5.8 page 45 and 46 of the pleadings
9
Record
page 358.
10
(2007)
28 ILJ 2405 (CC).
11
(2009)
30 ILJ 2642 (SCA).
12
Edcon
at
para 15.
13
Section
145 of the Labour Relations Act 66 of 1995 (LRA).
14
MEC
for Education, Gauteng v Mgijima
[2011] 3 BLLR 253
(LC).
15
Section
145(1) LRA
16
Founding
affidavit para 36 page 16 of the pleadings and paras 11 and 12 page
64 of the pleadings.
17
(2007)
28 ILJ 2405 (CC).
18
Sidumo
at paras 78-79.
19
Sidumo
at para 178
20
(2008)
29 ILJ 964 (LAC).
21
Fidelity
Cash Management
at paras 94-95.
22
See
the second respondents award at pages 48 and 49 of the index to
pleadings paras 5.15 – 5.20
23
Second
respondent’s award pleadings page 49 para 5.18.
24
Bestel
v Astral Operations Ltd and Others
[2011] 2 BLLR 129
(LAC) at
page 362 para 18.
25
SA
Municipal Workers Union V SA Local Government Bargaining Council and
Others (2012) 33 ILJ 353 (LAC).
26
[2011]
2 BLLR 129
(LAC)
27
Bestel
at para 30.