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[2014] ZALCJHB 146
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South African Revenue Service v Commission For Conciliation Mediation And Arbitration and Others (JR33/13) [2014] ZALCJHB 146 (5 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE
NO JR 33/13
In
the matter between:
SOUTH
AFRICAN REVENUE SERVICE
APPLICANT
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION 1
ST
RESPONDENT
COMMISSIONER
KD MATJI
NO
2
ND
RESPONDENT
RAVI
ANAND
RAJAH 3
RD
RESPONDENT
Date
heard: 24 April 2014
Judgment
delivered: 5 May 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application to review and set aside an arbitration award
made by the second respondent (the commissioner). In his
award, the
commissioner held that the third respondent (Rajah) had been unfairly
dismissed, and ordered his reinstatement into
the applicant’s
employ.
Material
facts
[2]
The material facts are not in dispute. They are recorded in the
commissioner’s award and in the papers before the court,
and I
do not intend to repeat them here. It is sufficient to note that
Rajah was employed in January 2008 as a senior specialist
in
information technology. He was dismissed on 28 October 2011 after
having been found to have committed two acts of gross negligence.
These related to events in August 2011, when the applicant alleged
that Rajah had failed to exercise due care in relation to a
scheduled
data migration resulting in a database being corrupted, and the
negligent use of an incorrect IP address which caused
a shut down.
After an unsuccessful appeal against his dismissal, Rajah referred a
dispute to the CCMA, which resulted in the award
under review.
The
award
[3]
The commissioner’s reasoning in relation to the two charges
brought against Rajah is reflected respectively in paragraphs
[52]
and [58] of his award. In regard to the first charge, the
commissioner took the view that the applicant had failed to establish
any causal nexus between Rajah’s omission to perform the data
storage migration at 14h00 and the outage. (The basis of the
charge
against Rajah was that he had performed the data migration at 14h00
and not at 17h00 as scheduled). The commissioner also
expressed the
view that Rajah had not acted alone in deciding to perform the data
storage migration earlier than the approved time,
and that other
parties to the decision had not been dismissed. In relation to
the second charge, the commissioner found that
the applicant had
failed to prove that Rajah had been negligent in using an incorrect
IP address. Here, the commissioner appears
to have found that a
reasonable specialist in Rajah’s position would have acted as
Rajah did where one of the IP addresses
furnished to him was not
working correctly.
Applicable
principles
[4]
The test to be applied in an application for review brought under
s145 of the LRA is now well established. That section does
not afford
an applicant any right of appeal and this court is not entitled to
set aside an award simply because it would have come
to a different
conclusion on the same facts. In other words, it is not the function
of this court to decide whether or not the
commissioner’s
decision was wrong. Commissioners are allowed to be wrong. The
applicable test is much narrower. This court
may set aside an
arbitration award if and only if it represents a decision that is so
unreasonable that no reasonable decision-maker
could come to.
Process-related conduct by an arbitrator (for example, failing to
attach sufficient weight to a particular evidence,
or ignoring
evidence that is relevant) is no longer in itself a basis for review
- an applicant must show that the arbitrator’s
conduct resulted
in an unreasonable decision.
[5]
In
Goldfields Mining South Africa (Pty) Ltd v
CCMA
(JA
2/2012, 4 November 2013) the Labour Appeal Court confirmed that the
applicable test does not admit what has been referred to
as a
“process-related review”, at least in the sense that it
is no longer open to a reviewing court to set aside an
arbitration
award only on account of a process- related irregularity on the part
of the arbitrator. This has the consequence that
the failure by an
arbitrator to mention a material fact in the award, or to deal with
any issue that has a bearing on the issue
in dispute, or any error in
regard to the evaluation of the facts presented at the arbitration
hearing, is of no consequence, unless
it renders the outcome
unreasonable. Provided that the arbitrator gave the parties a full
opportunity to state their respective
cases at the hearing,
identified the issue that he or she was required to arbitrate,
understood the nature of the dispute and dealt
with its substantive
merits, the function of the reviewing court is limited to a
determination whether the arbitrator’s decision
is one that
could not be reached by a reasonable decision-maker on the available
material. In short, conduct by an arbitrator is
not irrelevant, but
it must be scrutinised in the context of the outcome of the
proceedings under review. More particularly, the
court must determine
whether the conduct called into question had the result of an outcome
that falls outside the band of decisions
to which reasonable decision
makers could come on the available material.
Analysis
[6]
In the present instance, the applicant’s primary ground for
review is that in by concluding that the applicant had ‘dismally
failed’ to establish the element of causation necessary to
prove that Rajah had been negligent, the commissioner failed to
have
regard to the pre-arbitration minute and in particular, the parties’
agreement that causation was not an issue in dispute.
The
pre-arbitration minute concluded on 14 March 2012 records those facts
that have been agreed between the parties. Clause B17
of the minute
reads as follows:
’
17.
That the applicant performed [
inserted by hand
‘as part
of the value chain’] the change at 14:00 on the 26
th
August 2011 before the scheduled time which resulted in (own
emphasis) the ATP database DB2 being corrupted and the EDW
environment
couldn’t be brought back causing production outage’
[7]
The effect of this paragraph is to remove the issue of causation from
the equation. For the commissioner to decide, as he did,
on the basis
that the applicant ‘failed dismally’ to establish a
causal connection between Rajah’s actions and
the production
outage, was to find against the applicant on the basis of an issue
that was never in dispute. It was not incumbent
on the applicant to
establish causation in the arbitration hearing – causation had
been admitted, and the applicant relieved
of any burden to adduce
evidence to establish it. In these circumstances, on this basis
alone, the commissioner’s award
in respect of the first charge
of negligence had the result of an unreasonable outcome and stands to
be reviewed and set aside.
[8]
In relation to the second charge, the commissioner appears to have
based his finding on the absence of any negligence on Rajah’s
part. He finds specifically that “
It was not proven in what
respect was the applicant negligent for using an incorrect IP address
where one of the two IP addresses
given to him was not working
correctly’.
[9]
The pre-trial minute records the following:
’
20.
The applicant admitted that he used the incorrect IP addresses which
he assumed they were free.
21.
That his conduct caused duplication of the IP addresses on the
production network causing
e@syfile SQL cluster to shut down and not
being accessible to SARS clientele.’
[10]
This amounts to an admission by Rajah of the conduct alleged by the
applicant and of its consequences. In these circumstances,
it was
incumbent on Rajah to furnish an explanation as to why he should not
be found to have been negligent in making the assumption
he did. The
commissioner’s finding, in effect that a reasonable person
would have acted as Rajah did, is speculative and
has no basis in the
evidence adduced at the hearing. The commissioner’s conduct in
ignoring the terms of the pre-arbitration
minute had the result that
the conclusion to which he came was unreasonable.
[11]
In short, the commissioner predicated his conclusion on what he
considered to be a failure by the applicant to adduce sufficient
evidence to establish the existence of misconduct. The terms of the
pre-trial minute, to which the commissioner clearly did not
have
sufficient regard, and especially the agreed facts reflected in the
minute, relieved the applicant of the obligation to adduce
the
evidence concerned. Any failure by the applicant to adduce that
evidence cannot logically or otherwise be a basis for a finding
against it. In these circumstances, the commissioner’s
reasoning had the result of an outcome that falls outside of the band
of decisions to which reasonable decision makers could come on the
available material. It is not necessary for me in these circumstances
to consider the further grounds for review proffered by the
applicant. The commissioner’s award stands to be reviewed and
set aside for the reasons recorded above.
[12]
Little purpose would be served in remitting the matter to the CCMA
for rehearing. The record is complete, and the court is
in a position
to make an order of substitution. In my view, having regard to the
serious nature of Rajah’s conduct and its
consequences, as well
as his disciplinary record, the sanction of dismissal ought to have
been upheld.
[13]
In relation to costs, this court has a broad discretion but is
customarily reluctant to make orders for costs in matters where
individual employees assert or defend their rights in good faith.
This case falls into that category and I do not intend to make
any
order as to costs.
I
make the following order:
1. The
arbitration award issued by the second respondent under case number
GATW14788-11 on 19 December 2012 is
reviewed and set aside.
2. The
award is substituted by the following:
‘
The applicant’s
dismissal was substantively and procedurally fair.’
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Adv. Wilhelm P Bekker instructed by Gildenhuys Malatji
Inc.
For
the Respondent: Adv. H Bucksteg instructed by Carel J Schoeman
Attorneys
.