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[2014] ZALCPE 13
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Ngindana v Commission for Conciliation, Mediation and Arbitration and Others (P120/11) [2014] ZALCPE 13 (10 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
NOT
REPORTABLE
CASE
NO: P120/11
In
the matter between:
LUYOLO
NGINDANA Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION First
Respondent
COMMISSIONER MZOXOLO
MDLALANA Second
Respondent
SMALL ENTERPRISE
FOUNDATION Third
Respondent
Heard: 21 May
2013
Delivered:
10 June 2014
Summary:
Not every dissatisfaction the applicant has about an arbitration
award constitutes grounds for review.
An award which falls within
bounds of reasonableness is not reviewable.
Review in terms of
section 145 of the LRA – Dismissal for misconduct.
JUDGMENT
LALLIE,
J
Introduction
[1]
This is the application in terms of
section 145
of the
Labour
Relations Act 66 of 1995
to review and set aside an arbitration award
of the second respondent (the commissioner). It is opposed by the
third respondent.
Factual background
[2]
The applicant was employed by the third respondent in October 2008.
On 1 May 2009, he was appointed to the position of development
facilitator, a position he held until his dismissal. He was
responsible for loans which were taken by groups from the third
respondent.
The applicant was suspected of having committed acts of
misconduct when Ms Mushwana (Mushwana), the Butterworth Zonal Manager
noticed
inconsistencies during a spot check in the applicant’s
area of responsibility. The applicant was charged with writing false
information in the repayment schedule of the Sisonke Centre and
failure to prepare loan applications on time for clients and for
changing the procedure by conducting centre meetings weekly instead
of fortnightly. He was found guilty of the charges based on
his plea
and dismissed. His appeal was dismissed. He referred an unfair
dismissal dispute to the first respondent where the commissioner
issued an award in which he found the termination for his contract of
employment fair. In this application, he seeks an order setting
aside
the award.
The award
[3]
The commissioner considered that as a micro loan lending undertaking
the third respondent relied on development facilitators
to secure
clients who applied for loans, assisting the clients in applying for
the loans and conducting centre meetings as he met
the groups of
client in centres. He compiled information in respect of loan
utilisation and repayment. The third respondent had
a pattern of
giving loan. Clients started with R1000.00 loans, progressed to
R1600.00, thereafter they would qualify for a R2800.00
loan. Keeping
of correct records assisted the third respondent monitor the
activities of its client with the view of retaining
them by offering
the necessary assistance in the event of being in danger of losing
them. The commissioner accepted the third respondent’s
evidence
that the applicant deliberately supplied false information or
falsified documents to reflect that clients who had dropped
out of
the loan programme were still existing clients. One of the
consequences for providing false information is that the third
respondent was denied of the opportunity of intervening timeously and
retain clients. The commissioner rejected the applicant’s
explanation that it was common practice to replace clients who have
exited the programme on the basis that the replacements did
not
reflect the true state of affairs. The applicant recorded
replacements, not as new clients but as old clients who were in the
second loan cycle. The commissioner rejected the applicant’s
explanation for his fraudulent travel claims as he could not
give
reasons for claiming for going to destinations that he did not claim
for while he was reporting to Ms Malahla. He concluded
that the
applicant was aware of his wrongful conduct which amounted to
dishonestly and found the sanction of dismissal appropriate.
Grounds for review
[4]
In his grounds for review the applicant narated reasons for his
dissatisfaction with the award. He complained that the award
does not
give a true reflection of the arbitration. The information was
distorted. The commissioner found that two charges which
the third
respondent had dropped constituted dismissible acts of misconduct.
The information in the award did not correspond with
the evidence
tendered at the arbitration. The third respondent held him
responsible for misconduct committed by his predecessor.
The
commissioner found him guilty of recording that all the members of
Masakhane group were in existence and for misconduct related
to
travel claims, in the absence of a policy precluding him from
claiming travelling costs when working in a centre near his
residence.
[5]
The thrust of the third respondent’s opposition was that the
grounds the applicant sought to rely on fall outside the
realm of
section 145
of the LRA. The test for review is whether the
commissioner reached a decision a reasonable decision maker could not
reach on the
evidence before the commissioner.
[1]
[6]
I have given the applicant’s papers a generous interpretation
because he drafted them without assistance by a legal practitioner.
Mr Van Der Walt who assisted the applicant pro bono came into the
picture very late after all the papers had been drafted. Most
of his
arguments were not fore-shadowed in his pleadings.
[7]
In determining whether the applicant has proved the existence of
grounds on which the award can be review and set aside, I have
to
consider the grounds for review and the totality of the evidence
which served before the arbitrator. Mr Van Der Walt sought
to rely on
the first ground for review by attacking the quality of the record.
He however did not, in his argument, show how the
award and not the
record failed to give a true reflection of the arbitration. The
distortion in terms of the first ground for review
is not in the
record but in the award. I have perused the record. It has its
weakness I, however, am not convinced that the record
does not
reflect what happened during the arbitration proceedings especially
when it is read with the grounds for review. In the
first ground for
review, the applicant did not disclose the nature of the distortion
and failure to give a true reflection of the
arbitration.
[9]
The applicant sought to rely on the commissioner’s error of
considering the charge of fraudulent travel claims which the
third
respondent had dropped. The charge is excluded from the list of
charges which led from the applicant’s dismissal. It
is true
that the commissioner erred in considering the charge. In
NUM
and Another v Samancor Ltd (Tubatse Ferrochrome) and Others,
[2]
the court expressed the following view in respect of an error by a
commissioner:
‘…
.
in those circumstances, I cannot see that the error that he made was
material to the outcome. His reasoning shows that he
would have
reached the same conclusion, however, the dismissal was categorised.
Least of all does it follow from his error that
the award was so
unreasonable that it fell to be set aside.’
[10]
In
Herholdt
v Nedbank Ltd (
Congress
of South African Trade Unions as Amicus Curiae)
[3]
the
Court
confirmed
that when the error does not render the outcome unreasonable it does
not constitute grounds for review. A consideration
of the totality of
the evidence in this matter also reflects that the error did not
influence the outcome the commissioner reached.
[9] A consideration of
all the evidence which served before the commissioner reveals that he
dealt with the main dispute before
him, evaluated evidence and
reached a reasonable decision. There are, therefore, no grounds to
interfere with his decision as it
falls within bounds of
reasonableness.
[10] In the premises, the
following order is made:
10.1
The application is dismissed.
______________
Lallie J
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant:
Mr Van
Der Walt of Van Der Walt Attorneys
For
the Third Respondent: Mr Jacobsz of Jacobsz
Attorneys
[1]
See
Sidumo
and Others v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) at para 110.
[2]
[2011] BLLR 1041
(SCA) at para 12.
[3]
[2013] 11 BLLR 1074
(SCA) at para 25.