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[2013] ZALCJHB 37
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South African Post Office v Jacobs and Others (JR1681/11) [2013] ZALCJHB 37 (20 February 2013)
15
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA
,
JOHANNESBURG
JUDGMENT
Not reportable
case
no: JR1681/11
In the matter between:
SOUTH
AFRICAN POST OFFICE
....................................................................
Applicant
and
JACOBS, T
...........................................................................................
First
Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION
.......................................................................
Second
Respondent
MPHAPHULI,
N.O.
..............................................................................
Third
Respondent
Heard
:
21 December 2012
Delivered: 20 February 2013
Summary: Review in terms of section 145 of the LRA, arbitration
award -
judgment
MALAN AJ
Introduction
This is an opposed application terms of which the applicant, South
African Post Office Limited (‘the Post Office’)
seeks to
have the arbitration award handed down by the third respondent (‘the
Commissioner’) under the auspices of
the second respondent
(‘the CCMA’) under case no. GAJB32682-10 and dated 18
April 2011 (‘the award’)
reviewed and set aside in terms
of s 145(1)(a) of the Labour Relations Act, 66 of 1995 (as amended)
(‘the LRA’) (‘the
review application’).
Condonation
At the commencement of the hearing of this matter, the Post Office
applied for condonation for the late filing of the review
application. Although the first respondent did not oppose the
application for condonation on the papers as they stand, Mr
Moshoana,
acting on behalf of the first respondent, still made
submissions to the Court concerning the applicant’s
application for
condonation.
Having considered that the review application was delivered 21 days
late and the Post Office’s explanation for this delay
as well
as its submissions concerning its prospects of success and the
absence of prejudice, condonation was granted and the
matter
proceeded accordingly.
Synopsis of relevant factual background
Before proceeding to outline the grounds upon which the Post Office
seeks to have the award reviewed and set aside and to consider
the
issues to which they give rise, it is necessary for me to first
summarise briefly the facts which form the background to
the dispute
between the parties.
Until the time of her dismissal, 29 November 2010, the first
respondent (‘Mrs Jacobs’) was employed as a branch
manageress at the Post Office’s Weltevreden Park branch. Mrs
Jacobs was
inter alia
responsible for ensuring the
safekeeping of monies collected at the Weltevreden Park branch as
well as its daily banking until
collected by G4 responsible for the
Cash-In-Transit (‘CIT’).
The Weltevreden Park branch has a walk-in safe with a lockable steel
door providing access to the safe. The inside of the safe
is
partitioned by mesh wire into two separate areas. The one area has a
further and separate lockable space with a mesh safe
door giving
access to such area (‘the lockable space’) where cash is
kept. Mrs Jacob’s was the only one that
had the keys to the
lockable space and consequently access. Inside the lockable space
there were shelves where items could be
placed. The other area has
lockers for Tellers but does not have a similar mesh safe door. All
the Tellers have access to this
area. It is common cause that during
trading hours, the main steel door to the walk-in safe was left open
in order to provide
the Tellers with access to the stock and their
respective lockers.
As branch manageress, Mrs Jacobs was entrusted with and responsible
for the keys to the walk-in safe including the lockable space.
Duplicate keys were kept at the area manager’s office in a
sealed envelope.
On 15 December 2009 at approximately 15h00, Mrs Jacobs along with
the checking officer, Ms Joubert, prepared to do the daily
banking.
In this regard they placed the cash in a stop loss bag, sealed it
and then put it inside the separate lockable space
on the shelves
after which Mrs Jacobs locked it.
T
he main
door to the walk-in safe remained open during trading hours. The
reason for this, Mr Jacobs contends, is because Tellers
moved in and
out of the safe during the day
in order to gain
access to the stock and their lockers.
When the security officers arrived at approximately 16h15 that same
day, Mrs Jacobs went to the walk-in safe, unlocked the separate
lockable space safe and took the stop loss bag to the table where
the CIT officer was waiting. At that stage, she discovered
that
there had been tampering with the stop loss bag and it had been
opened. In fact, she discovered that it was not even the
same stop
loss bag that she and Ms Joubert used to make up the banking earlier
that day and placed in the separate lockable space.
The stop loss
bag also no longer had her handwriting on. Upon opening the stop
loss bag, she discovered that the money inside
made been removed
from the bag and had been replaced with paper. The stop loss bag
that was initially used was never found. Despite
a search for the
initial stop loss bag, they could not find it.
Mrs Jacobs suspected that a co-employee was responsible for taking
the money. This co-employee resigned 24 hours after this incident.
In so far as the second charge is concerned, Mrs Jacobs contended
that she only forgot to hand over the cheques received that
day for
daily banking, as required in terms of the policy, because the
commotion around the missing stop loss bag that day.
On previous occasions when items such as credit cards and other
items went missing, she requested a standalone safe from the
area
manager. This request was not adhered to.
On 23 November 2010, the Post Office issued Mrs Jacobs with a notice
to attend a disciplinary enquiry. In terms of the said notice,
Mrs
Jacobs was charged with gross negligence in that she failed to
safeguard banking lodgement amounting to R42 250.00 which
resulted in the Post Office suffering a loss in this amount. Mrs
Jacobs was further charged with failing to hand over banking
amounting to R61 114.86 on the same day which she prepared it,
as was required in terms of the policy.
Pursuant to the disciplinary enquiry, Mrs Jacobs was found guilty of
both the charges levelled against her and accordingly dismissed.
Mrs
Jacobs appealed against the outcome of the disciplinary enquiry but
the findings and sanction of dismissal was upheld.
Aggrieved by the outcome, Mrs Jacobs referred a dispute to the CCMA
contending that her dismissal was substantively unfair. The
procedural fairness of her dismissal was not placed in dispute.
Conciliation failed and the matter proceeded to arbitration,
which
arbitration forms the subject matter of this review application.
Arbitration proceedings
Both parties were represented during the arbitration proceedings,
albeit not by legal practitioners. In addition to documentary
evidence, the Post Office presented the evidence of its area manager
Mr Lephuthing; the chairman of the disciplinary hearing,
Mr
Maphutha, who also happened to be an area manager and Mrs Swanepoel
who conducted an investigation into the incident. Mrs
Jacobs
testified herself and did not call any witnesses. An inspection
in
loco
was also conducted.
In terms of the arbitration award the Commissioner found the
dismissal to be substantively unfair and ordered the applicant to
reinstate Mrs Jacobs and pay her four months remuneration being the
equivalent of the period she would have been remunerated
had she not
been dismissed.
Grounds of review
I understand the grounds upon which the Post Office contends the
award falls to be reviewed and set aside to be the following:
The Commissioner’s finding concerning the inconsistent
application of discipline by the Post Office is based on a
misapprehension of the applicable legal principles.
The Commissioner’s finding that the Post Office’s
representative ‘…
was being over ambitious in even
suggesting that failure to safe guard [sic] was at issue in the
enquiry’
is not that of a reasonable decision-maker.
The Commissioner committed a reviewable irregularity by
disregarding material evidence when he arrived at the conclusion
that the parties were in agreement that Mrs Jacobs complied with
the operational procedure and standard to the letter.
The Commissioner’s findings that the Post Office’s case
was based on suspicion and not supported by the evidence
and that
it exploited its position of power by dismissing Mrs Jacobs are not
those of a reasonable decision-maker.
I deal with each one of these grounds of review hereunder.
Applicable legal framework
The review-test
The proper approach to be adopted by this Court in dealing with
arbitration reviews is trite. It has been clearly set out in
a
number of decided cases, chief amongst which is
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
.
1
In a nutshell, the test is whether a reasonable decision-maker could
reasonably arrive at the same conclusion that the decision-maker
whose decision is under review, has arrived at.
2
The
Sidumo
test has been confirmed in
Edcon Ltd v
Pillemer NO and Others
,
3
where it was further held that the focal point of the enquiry into
arbitration awards in review applications is the reasonableness
of
the award and that the Court should focus not only on the conclusion
arrived at, but also on the material before the Commissioner
when
making the award.
4
The operation of the
Sidumo
test was also addressed by the
Supreme Court of Appeal (‘
SCA’
) in
Samancor
Tubatse Ferrochrome v MEIBC & others
.
5
This judgment, in relation to the operation of the
Sidumo
test, demonstrates what has been stated by both the SCA and Labour
Appeal Court (‘
LAC’
) in the past about the
Sidumo
test
6
,
namely that:
the
Sidumo
test is a result-based test, which tests the
reasonableness of the result / outcome of the award;
in order to assail an award on the basis of the
Sidumo
test,
an applicant must thus assail not only the commissioner’s
reasons, but also the result of the award;
the reasonableness of the result of the award stands to be
determined on all the material that was before the commissioner
(with the result that the award can be sustained for reasons not
considered by the commissioner);
the focus is on whether the result of the award falls within a
range of reasonable outcomes, as opposed to whether it was correct
(this so as to maintain the distinction between a review and an
appeal); and
seen in the context of the above, the fact that a commissioner (as
occurred in
Samancor
) commits an error in the process of
his/her reasoning will not result in the
Sidumo
test being
met, unless the result of the award is incapable of justification
on all the material before the commissioner.
7
The SCA’s judgment reiterates the fact that the
Sidumo
test is a conservative one, and that an award will only fail the
test if it is truly incapable of (reasonable) justification.
This
was well expressed recently by Davis JA in
Bestel v Astral
Operations Ltd & others
8
,
in the context of commenting on the
Sidumo
test:
‘
It is important to
emphasise ... 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 ensure that this distinction, however
difficult it is to
always maintain, is respected’ (my emphasis).
9
The LAC, however, has recently stated as follows in
Andre
Heroldt v Nedbank Limited
10
:
‘
Where
a commissioner fails to have regard to material facts, this will
constitute a gross irregularity in the conduct of the arbitration
proceedings because the commissioner would have unreasonably failed
to perform his or her mandate and thereby prevented the aggrieved
party from having its case fully and fairly determined. Proper
consideration of all relevant and material facts and issues is
indispensable to a reasonable decision and if a decision-maker fails
to take account of a relevant factor which he or she is bound
to
consider, the resulting decision will not be reasonable in the
dialectical sense. Likewise, where a commissioner does not apply
his
or her mind to the issues in a case the decision will not be
reasonable.’
11
In
Southern Sun Hotel Interests (Pty) Ltd v CCMA and others
12
van Niekerk J held that a CCMA award is reviewable where it is shown
that the commissioner’s process related conduct is
found
wanting. Van Niekerk J further expressed the opinion that the
reasonableness requirement is relevant to both process and
outcome.
In other words an award will be reviewable if it suffers either from
dialectical unreasonableness or is substantively
unreasonable in its
outcome.
There is no requirement that the commissioner must have deprived the
aggrieved party of a fair trial by misconceiving the whole
nature of
enquiry. The threshold for interference is lower than that; it being
sufficient that the commissioner has failed to
apply his mind to
certain of the material facts or issues before him, with such having
potential for prejudice and the possibility
that the result may have
been different. This standard recognises that dialectical and
substantive reasonableness are intrinsically
inter-linked and that
latent process irregularities carry the inherent risk of causing an
unreasonable substantive outcome.
13
The LAC has recently also stated the follows in
Afrox
Healthcare Ltd v Commission for Conciliation, Mediation &
Arbitration & others
14
:
‘
The fact of the matter
is that the reasonable decision maker yardstick crafted in Sidumo,
viewed in proper context, is none other
than that in the absence of a
“rational objective basis” [the Carephone test] between
the decision arrived at and the
material placed before the decision
maker, the relevant decision is clearly not one which a reasonable
decision maker would have
arrived at.’
In dismissing the appeal, the LAC has also recently stated in
Gaga
v Anglo Platinum Ltd & others
15
the following:
‘
Where
a commissioner fails properly to apply his mind to material facts and
unduly narrows the inquiry by incorrectly construing
the scope of an
applicable rule, he will not fully and fairly determine the case
before him. The ensuing decision inevitably will
be tainted by
dialectical unreasonableness (process-related unreasonableness),
characteristically resulting in a lack of rational
connection between
the decision and the evidence and most likely an unreasonable outcome
(substantive unreasonableness). There
will often be an overlap
between the ground of review based on a failure to take into
consideration a relevant factor and one based
on the unreasonableness
of a decision. If a commissioner does not take into account a factor
that he is bound to take into account,
his or her decision invariably
will be unreasonable. The flaw in process alone will usually be
sufficient to set aside the award
on the grounds of it being a latent
gross irregularity, permitting a review in terms of section 145(1)
read with section 145(2)(a)(ii)
of the LRA’ (my emphasis).
16
It is against this background the Post Office’s grounds of
review and the arguments presented by the respective parties
in this
regard are considered.
Evaluation of grounds of review and arguments
The Commissioner’s finding concerning inconsistency
During the arbitration proceedings, Mrs Jacobs challenged the
consistent application of discipline by the Post Office. In this
regard she relied on two other instances where branch managers were
also charged with gross negligence. They only received final
written
warnings opposed to the sanction of dismissal as in the case of Mrs
Jacobs.
In this regard, the Commissioner finds that
‘
Both
Mr Lephuthing and Mr Maphutha could not point to out
what material differences existed in the merits of the cases that
led to
disciplinary action short of dismissal and the Employee’s
case that led to her dismissal.’
17
In arriving at this conclusion, the Commissioner,
in my judgment, disregards the evidence of Mr Lephuthing
18
as well as Mr Maphutha
19
in this regard. Mr Lephuthing explained that in
the one instance (concerning the loss of a credit card at the
Fontainebleau branch),
there was no strong room or walk-in safe. In
the second instance, the employee concerned pleaded guilty and
showed remorse. Mr
Maphutha also explained in detail that in the one
instance, the branch manager concerned incorrectly handed a credit
card to
a fraudster without first checking the six digits or six
zeros appearing on the credit card with the relevant bank. He
explained
that because different banks use either digits or zeros as
the first six numbers on the credit cards, there was some confusion
that existed that he appears to have accepted as mitigating factors
in that case.
In comparing these two instances with that of Mrs Jacobs, Mr
Maphutha was further of the view that aggravating factors that
weighed heavily against Mrs Jacobs were the fact that she had all
the facilities available to her to secure the safekeeping of
the
money, but still it went missing. Moreover, the fact that she showed
no remorse and persisted with her denial that she was
not
responsible was a distinguishing factor.
Whether or not the chairperson of these
respective disciplinary hearings exercised his discretion correctly
or not is not the
test. The LAC in
SACAWU
v Irwin & Johnson Limited,
dealing
with the consistent application of discipline,
20
held that:
‘…
If
the chairperson conscientiously and honestly, but incorrectly
exercised his or her discretion in a particular way, it would
not
mean that there was unfairness to other employees. It would mean no
more than his or her assessment of the gravity of the
disciplinary
offence was wrong.’
There was no evidence that the chairpersons of these disciplinary
hearings failed to conscientiously and honestly exercise their
discretion by issuing final written warnings.
The Commissioner failed to apply his mind to or misconstrued the
legal principles applicable to the consistent application of
discipline. In the premises, this ground of review must succeed.
The Commissioner’s finding that the Post Office’s
representatives ‘… was being over ambitious in even
suggesting
that failure to safe guard [sic] was at issue in the
enquiry.’
This finding by the Commissioner is nothing short of disquieting.
Mrs Jacobs’ failure to safeguard the stop loss bag containing
the money was the focal point of the charge of gross negligence and
the evidence presented in this regard.
In addition to the aforesaid, the Commissioner’s finding that
‘
The concept failure to safe guard [sic] is elastic, wide,
general and all embracing’
again completely disregards the
specific
facta probantia
presented by the Post office
specific to the missing stop loss bag.
A symptom of the Commissioner’s misdirection in this regard is
his analogy between Mrs Jacobs’ negligence and, somehow,
a
branch manager’s accountability for loss of valuables as a
result of ‘…
a fire, robbery or theft without having
any role in the eventual loss.’
The aforesaid comprise a
broad-spectrum of situations in the absence of analysing and
comparing the evidence
in casu
to each one of these
situations, in order to justify such equation. Naturally there is a
limit to which such safeguarding can
apply.
From the latter finding, it appears that the Commissioner concludes
that Mrs Jacobs did not play any role in the stop loss bag
and money
going missing. This is inconsistent with the evidence properly
before him.
In the circumstances, I find that the Commissioner’s finding
in this regard is not that of a reasonable decision-maker.
Consequently, this ground of review must also succeed.
The Commissioner’s finding that the parties were in
agreement that Mrs Jacobs complied with the operational procedure and
standard to the letter
This finding is, once again, in direct
contradiction to the evidence presented by the Post Office. What the
parties were in agreement
with was the fact that Mrs Jacobs failed
to keep the main door of the walk-in safe locked and that that she
allowed the Tellers
free access to their lockers in the safe. The
Commissioner clearly disregards the evidence by Mrs Swanepoel in
this regard as
well as the Post Office’s operating procedure
requiring of branch managers to
“
Ensure
that the banking consignments awaiting collection by the CIT Company
are safeguarded until they are collected.’
21
Consequently, this ground of review must also succeed.
The Commissioner’s findings that the Post Office’s
case was based on suspicion and not supported by the evidence and
that it exploited its position of power by dismissing Mrs Jacobs
It is common cause that in addition to the area manager, Mrs Jacobs
was the person the Post Office entrusted with the keys to
the
walk-in safe and she was responsible for the safekeeping of the keys
as well as to control access to the walk-in safe.
It is also common cause that
the main door
to the walk-in safe remained open during trading hours. The reason
for this, Mr Jacobs contends, is because the
Tellers moved in and
out of the safe during the day
in order to gain
access to the stock and their lockers, it was practical to keep the
main door open during trading hours.
Mrs Jacobs’ evidence was that after she and
Ms Joubert placed the money in question in the stop loss bag
and sealed it, she [Mrs Jacobs] proceeded to place the stop loss bag
on the shelf inside the lockable space and locked the mesh door. Mrs
Jacobs contend that it remained locked until such time as
the CIT
officer arrived and she discovered that there had been tampering
with the stop loss bag. The Post Office was unable to
successfully
challenge this part of her evidence.
To find an employee guilty of gross negligence, it presupposes that
the employee did something, not just negligently in the ordinary
sense of the word, but more severe or over and above the concept of
ordinary negligence. This begs the question: what did the
employee
do or not do that that takes his or her actions or omissions beyond
the boundaries of mere negligence to result in gross
negligence?
This of course, is the
onus
the Post Office had to discharge.
It does not follow automatically that in the
event of any contents in the walk-in safe going missing, Mrs Jacobs
will be guilty
of gross negligence merely the because Post Office
entrusted her with the keys and she was responsible for the
safekeeping of
the keys as well as to control access to the walk-in
safe.
The Post Office had to place sufficient evidence before
the Commissioner to prove what Mrs Jacobs did or did not do, was so
grossly
negligent that it resulted in the loss of the money in the
stop loss bag. Consequently, except for the fact that Mrs Jacobs
allowed
the main door of the walk-in safe to remain open for the
reasons already stated, the Post Office placed no other evidence
before
the Commissioner to support the charge of gross negligence.
Referring to the mesh door in the lockable space where the stop loss
bag was placed, Mr Lephuthing testified as follows:
‘…
through the
investigation it was established that there could be a possibility
the [Mrs Jacobs] left the door open. There is a possibility,
because
nothing explains to the fact [sic] that if she locked the door, [sic]
that is what she told us, she
locked the door and she put the money inside after they have counted
[sic]. But when she – when
the people came to collect the money
and then she was supposed to collect that money, that money was not
there. She could have
been – I mean she could have yes.’
22
The investigation referred to by
Mr
Lephuthing was conducted by
Mrs Swanepoel
.
She also testified during both the disciplinary hearing as well as
the arbitration proceedings. The Post Office did not introduce
Mrs
Swanepoel’s report into evidence during the arbitration
proceedings. No explanation was given for this.
Mrs Swanepoel’s evidence on whether or not the mesh door to
the lockable space was locked on the day in question is confusing
to
say the least. She was not present on the day in question and is
therefore unable to confirm whether or not the mesh door
was locked.
During her evidence she also seems to change her version on several
occasions concerning the question whether or
not the mesh door was
locked at the time when she visited the Weltevreden Park branch
during the conduct of her investigation.
I find her evidence to be
unreliable and of very little assistance, especially in the absence
of her report.
There was further no evidence that Mrs Jacobs left the keys laying
around.
The only remaining basis for the Post Office to support the
allegation of gross negligence, is to prove that Mrs Jacobs, by
failing
to keep the
main door to the
walk-in safe locked at all times, and thereby controlling access to
the safe, failed to
ensure that the banking
consignments awaiting collection by the CIT Company are safeguarded
until they are collected.’
23
Mrs Jacobs explained the practical reason for keeping the main door
unlocked. This was not seriously challenged by the witnesses
who
testified on behalf of the Post Office. In any event, the stop loss
bag was on the shelf in the lockable space behind the
locked mesh
door inside the walk-in safe.
It seems to me that the Post Office was unable to establish anything
more than the loss occurred on Mrs Jacobs’ “
watch”
,
so to speak, and consequently, she was grossly negligent. This
simply does not pass muster.
In the premises, I find that the Commissioner’s finding that
the Post Office failed to prove that Mrs Jacobs was guilty
of gross
negligence to be that which a reasonable decision-maker given the
lack of evidence before him. Consequently, this ground
of review
must fail.
Despite the aforesaid, the Commissioner’s finding that the
Post Office exploited its position of power by dismissing Mrs
Jacobs
is without any basis and unreasonable. There was simply no evidence
before the Commissioner to justify this conclusion.
In so far as the second charge is concerned, Mrs Jacobs explanation
that she only forgot to hand over the cheques received that
day for
daily banking, because the commotion around the missing stop loss
bag that day. This is not an unreasonable explanation
and does not
constitute gross negligence given the circumstances.
Conclusion
It is also important to consider the extensive lapse of time between
the time when the stop loss bag with the money went missing
and when
the Post Office eventually charged Mrs Jacobs. Although the incident
occurred on 15
th
of December 2009, Mrs Jacobs was only
charged on the 20
th
of November 2010, almost a year
later. Except for the explanation by Mrs Swanepoel that she was in
the process of completing
an investigation, the Post Office failed
to offer any reasonable explanation why the trust relationship had
broken down irretrievable,
despite the fact that they did not appear
to have any difficulty with allowing Mrs Jacobs to continue in her
capacity as branch
manager during such period without placing her on
suspension. The proverbial high-water mark for the Post Office in
this regard
is the evidence by Mr Maphutha. He explained that the
reason for the Post Office not suspending Mrs Jacobs was because she
first
had to be afforded an opportunity to state her case and at the
time, she had not yet been found guilty.
24
Having regard to the aforesaid, I am also not
convinced that
the Post Office placed sufficient evidence
before the Commissioner to prove that the trust relationship had
irretrievably broken
down.
25
Despite my findings in respect of the first three grounds of review,
in my judgment, this does not result in the award having
to be
reviewed and set aside. It is the last ground of review that goes to
the essence of the award. In this regard, the Post
Office has failed
for the reasons already stated.
Costs
I can find no reason why the costs should not follow the result in
this matter.
Order
In the premises, I make the following order:
The application is dismissed with costs.
_______________
Malan AJ
Acting Judge of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT: Adv A Snider, instructed by Cliffe Dekker Hofmeyr
FOR THE FIRST
FIRST RESPONDENT: Attorney G M Moshoana, instructed by Jerry Nkelly &
Associates Inc.
1
2008
(2) SA 24
(CC); also reported at (2007) 28 ILJ 2405 (CC) and also at
[2007] 12BLLR 1097 (CC)
2
Ehrke
v Standard Bank of SA & Another (2010) 31 ILJ 1397 (LC) at p
1404, par [19] B/C-D; See also Fidelity Cash Management
Service &
Others v CCMA & Others (2008) 29 ILJ 964 (LAC); also reported at
[2008] 3 BLLR 197
(LAC)
3
(2009)
30 ILJ 2642 (SCA)
4
Ehrke
v Standard Bank of SA & Another (2010) 31 ILJ 1397 (LC) at p
1404, par [19] F-H
5
National
Union of Mineworkers v Samancor Ltd (2011) 32 ILJ 1618 (SCA); Also
see Samancor Tubatse Ferrochrome v MEIBC & others
(2010) 31 ILJ
1838 (LAC)
6
See,
in particular, Edcon Ltd v Pillemer NO & others
[2010] 1 BLLR 1
(SCA); Fidelity Cash Management Service v CCMA & others
[2008] 3
BLLR 197
(LAC)
7
‘
Reviewing
the Review Test: Recent Judgments and Developments’
by Anton Myburgh SC (2011) 32 ILJ 1497
8
[2011]
2 BLLR 129
(LAC); Also see: Southern Sun Hotel Interests (Pty) Ltd v
CCMA & others
[2009] 11 BLLR 1128
(LC); SA Airways (Pty) Ltd v
Blackburn & others
[2010] 3 BLLR 305
(LC) at 313D-E; Lithotech
Manufacturing Cape, a division of Bidpaper Plus (Pty) Ltd v
Statutory Council Printing, Newspaper &
Packaging Industries &
others
[2010] 6 BLLR 652
(LC) at para 18; Pam Golding Properties
(Pty) Ltd v Erasmus & others (2010) 31 ILJ 1460 (LC) at para 8;
MEC for Education,
Gauteng v Mgijima
[2011] 3 BLLR 253
(LC) at par 4
9
At
par 18
10
(2012)
23 ILJ 1789 (LAC)
11
at
par 36
12
[2009]
11 BLLR 1128
(LC)
13
Andre
Heroldt v Nedbank Limited (2012) 23 ILJ 1789 (LAC) at par [39]; Also
see Afrox Healthcare Ltd v Commission for Conciliation,
Mediation &
Arbitration & others (2012) 33 ILJ 1381 (LAC);
[2012] 7 BLLR 649
(LAC); and Gaga v Anglo Platinum Ltd & others (2012) 33 ILJ 329
(LAC);
[2012] 3 BLLR 285
(LAC). In each case aforementioned, the LAC
either set aside or confirmed the setting aside of the award on
review predominantly
on the basis of process-related grounds of
review.
14
(2012)
33 ILJ 1381 (LAC);
[2012] 7 BLLR 649
(LAC) at par 16
15
(2012)
33 ILJ 329 (LAC);
[2012] 3 BLLR 285
(LAC); In each case
aforementioned, the LAC either set aside or confirmed the setting
aside of the award on review predominantly
on the basis of
process-related grounds of review.
16
at
par 44
17
Award:
p 20, para 5.13
18
Transcript:
p 35; pp 60 - 64
19
Transcript:
p 99 - 102
20
(1999)
20 ILJ 2302 (LAC)
21
Records:
p 181 (Operational Update)
22
Transcript:
p 43
23
Records:
p 181 (Operational Update)
24
Transcript:
p 113
25
Edcon
Ltd v Pillemer NO and Others, (2009) 30 ILJ 2642 (SCA) at paras [19]
– [21]