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[2015] ZALCJHB 33
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Mtiyensanji v Commission for Conciliation, Mediation And Arbitration and Others (JR1452/2011) [2015] ZALCJHB 33 (29 January 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No:
JR1452/2011
DATE: 29 JANUARY
2015
Not Reportable
In
the matter between:
STEPHEN
EMMERSON
MTIYENSANJI
............................................
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
...........................................
First
Respondent
COMMISSIONER
NASIMA RAFFEE; N.O
..........................
Second
Respondent
CASHBUILD
SOUTH AFRICA (PTY) LTD
.............................
Third
Respondent
Heard: 01 July
2014
Delivered: 29
January 2015
Summary:
Application for review in terms of s 145 of the LRA; Review premised
on the Commissioner having
inter alia
failed or neglected to
apply her mind; failed to enquire into, consider or have regard to
certain issues; erred; incorrectly held
on certain matters and
misdirected herself; These allegations not sufficient to upset the
award; No gross irregularity in the conduct
of the arbitration
proceedings committed; Arbitration award falling within the realm of
what is reasonable; Application for review
dismissed with no order as
to costs.
JUDGMENT
VOYI, AJ
Introduction
[1]
This
is an application to review and set aside an arbitration award that
was issued by the Second Respondent (Commissioner Nasima
Raffee and
hereinafter “the Commissioner”) under case number
GAJB29898-10 and dated 19 May 2011. Although this is not
particularly
stated in the founding affidavit, it is clear that the application is
launched under s 145 of the Labour Relations
Act.
[1]
[2]
In her arbitration award, the Commissioner
concluded that the Applicant’s dismissal, by the Third
Respondent (hereinafter
“Cashbuild”), was substantively
fair. The Applicant now seeks to review and set aside the
Commissioner’s arbitration
award.
[3]
The application for review is opposed by
Cashbuild. The answering affidavit, in opposition to the review
application, was delivered
out of time. The Applicant objected to the
late delivery of the answering affidavit. This necessitated an
application for condonation,
which was duly launched by Cashbuild.
The condonation application is, in turn, opposed by the Applicant.
[4]
I am of the view that a proper case has
been made out for condonation of the late delivery of the answering
affidavit. The explanation
proffered for the late delivery of the
answering affidavit cannot be said to be unreasonable or
unconvincing. The ultimate decision
that I arrive at in this matter,
further, fortifies my view that the condonation application should
succeed. I am herein alluding
to the prospects of success in the
review application itself.
The arbitration
award under review
[5]
On 20 October 2010, Cashbuild dismissed the
Applicant following disciplinary proceedings pertaining to misconduct
allegations. Following
his dismissal, the Applicant lodged an alleged
unfair dismissal dispute with the First Respondent (hereinafter “the
CCMA”).
[6]
The dispute was ultimately arbitrated by
the Commissioner, who thereafter handed down the arbitration award
under review. At arbitration,
the only issue in dispute was the
substantive fairness of the Applicant’s dismissal. That the
dismissal was effected in accordance
with a fair procedure was
conceded by the Applicant and was, therefore, not in dispute.
[7]
In finding that the Applicant’s
dismissal was substantively fair, the Commissioner reasoned as
follows:
‘
4.1
It is common cause that the Applicant was dismissed after he was
found to be negligent, in that he did not comply with company
policies and procedures with respect to P.I.C. The Applicant denied
that he was negligent. He abdicated responsibility saying he
was the
trainee manager and that where losses exceeded a certain amount, he
as trainee manager had no authority to make the necessary
adjustments
on the system. The Applicant also argued that the sanction was
inappropriately harsh as the sanction for the first
offence or
negligence is a warning.
4.2 The evidence
indicates that the Applicant was employed with the Respondent since
1989 and held a position of assistant manager
for a considerable
period. The Applicant was trained, although he denied this, and
experienced in his position and ought to have
known the policies and
procedures of the Respondent. The Applicant failed dismally in this
regard, contributing to shrinkage in
excess of R180 000.00
because of his negligence. The Applicant was also on a final written
warning for having failed an audit.
The evidence indicates that the
Applicant was negligent as charged and that his negligence was of
serious consequence to the Respondent.
In view of the final written
warning on his record and of his acts of gross negligence the
sanction of dismissal is fair.’
[8]
The arbitration award was issued on 19 May
2011 and it was received by the Applicant on 26 May 2011.
The Applicant’s
grounds for review
[9]
In contending that the Commissioner’s
arbitration award is reviewable, the Applicant advances a few grounds
for review.
[10]
These grounds are expressed in the
Applicant’s founding affidavit and are also amplified in the
supplementary affidavit delivered
in terms of Rule 7A(8)(a) of the
Rules of the Labour Court. I briefly summarise the grounds for review
as follows:
10.1 The
Commissioner committed gross irregularity in conducting the
proceedings in that, she made a finding which cannot be justified
on
the evidence, alternatively that she gravely misunderstood the
evidence presented by the parties.
10.2 Evidence led at
the arbitration proceedings was cited and considered on a very
limited and selective basis.
10.3 The
Commissioner failed to enquire into, consider or have regard to the
fact that the Applicant was not authorised to make
adjustments over
R1,000.00 (one thousand rand). She equally failed to enquire into,
consider or have regard to the fact that the
Applicant reported the
shortages to Letsoalo and Letsoalo had actually failed to make the
adjustments.
10.4 The
Commissioner erred and acted irregularly, biased and ultra vires when
she came to the conclusion that the Applicant “contributed
to
shrinkage in excess of R180 000.00 because of his negligence.”
10.6 The
Commissioner failed to apply her mind (either properly or at all) to
issues that were apparent from the evidence presented
to her, as well
as ex facie the documentation placed before her, when she reached the
conclusion that “[i]n view of the final
written warning on his
record and his acts of gross negligence, the sanction of dismissal is
fair.”
10.7 The
Commissioner also failed and/or neglected to apply her mind to the
facts presented to her in that she failed and/or neglected
to take
into account item 7 of Schedule 8 of the Code of Good Practice:
Dismissal.
10.8 The
Commissioner incorrectly held that the Applicant had a final written
warning on his record when this actually pertained
to an audit report
and the warning had expired.
10.9 The
Commissioner did not apply her mind objectively [or at all] to all
the facts presented to her and as a result, reached
a decision which
a reasonable decision-maker in her position and faced with the same
set of facts would not have reached.
[11]
In his supplementary affidavit, the
Applicant amplified the above grounds for review and also added the
following further review
grounds, namely:
11.1 That the
Commissioner misdirected himself by accepting hearsay evidence; and.
11.2 She incorrectly
held that the Applicant had contributed to shrinkage in excess of
R18 000.00 as no evidence was led by
Cashbuild in that respect.
[12]
It is on the basis of these grounds that
the Applicant now seeks to review and set aside the Commissioner’s
arbitration award.
In the answering affidavit, it is denied that the
award is reviewable on the strength of the grounds advanced or at
all.
[13]
Each of these grounds is pertinently dealt
with by Cashbuild in its answering affidavit. The replying affidavit
filed by the Applicant
takes the matter no further.
Evaluation
[14]
The
Applicant seeks to review and set aside an arbitration award of the
CCMA. This is permissible under s 145 (2) of the LRA. Under
s 145 (2)
(a), in particular, three grounds for review are provided for.
[2]
[15]
The Commissioner’s arbitration award
is being challenged on the basis of only one of these three allowable
grounds for review
under s 145(2) (a), namely, that the Commissioner
committed a gross irregularity in the conduct of the arbitration
proceedings.
[16]
It is not the Applicant’s case that
the Commissioner committed ‘misconduct’ or ‘exceeded
her powers’.
[17]
The
common thread running through the Applicant’s founding and
supplementary affidavits is that the Commissioner failed or
neglected
to apply her mind; failed to enquire into, consider or have regard to
certain issues; erred; incorrectly held on certain
matters and also
misdirected herself. This, to me, is the vocabulary fitting for an
appeal. It warrants reiteration that no appeal
lies against a CCMA
arbitration award.
[3]
It is
trite law that arbitration awards of the CCMA are final and
binding.
[4]
[18]
In
dealing with applications for review, the standard test to be applied
was postulated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
[5]
That test basically asks the question: ‘Is the decision reached
by the commissioner one that a reasonable decision maker
could not
reach?’
[19]
In
rejecting the ‘process related review’ approach, the LAC
stated in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) CCMA and Others
[6]
that what is required in matters of the present nature is ‘…first
to consider the gross irregularity that the arbitrator
is said to
have committed and then to apply the reasonableness test established
by
Sidumo.’
[20]
In this matter, the starting point should
be whether the Commissioner committed a gross irregularity in the
conduct of the arbitration
proceedings as contemplated by s 145(2)
(a) (ii) of the LRA.
[21]
In
Herholdt
v Nedbank Ltd
(COSATU
as Amicus Curiae)
,
[7]
the Supreme Court of Appeal pointed out that:
‘
Material
errors of fact, as well as the weight and relevance to be attached to
the particular facts, are not in and of themselves
sufficient for an
award to be set aside, but are only of consequence if their effect is
to render the outcome unreasonable.’
[22]
I, accordingly, have no hesitation in
rejecting the Applicant’s complaint that the Commissioner
failed or neglected to apply
her mind; failed to enquire into,
consider or have regard to the issues identified in the founding
affidavit; erred; incorrectly
held on certain matters and also
misdirected herself. This is more so in the absence of the Applicant
demonstrating that such conduct,
on the part of the Commissioner, had
the effect of rendering the ultimate outcome unreasonable.
[23]
In
the present application, this court is called upon to ascertain
whether the Commissioner considered the principal issue before
her;
evaluated the facts presented at the hearing and came to a conclusion
which is reasonable to justify the decision she arrived
at. This
approach was stated in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) CCMA and Others
(supra).
[8]
In the latter decision, the Labour Appeal Court also stated thus:
‘
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute? (ii)
Did the
arbitrator identify the dispute he was required to arbitrate (this
may in certain cases only become clear after both parties
have led
their evidence)? (iii) Did the arbitrator understand the nature of
the dispute he or she was required to arbitrate? (iv)
Did he or she
deal with the substantial merits of the dispute? and (v) Is the
arbitrator’s decision one that another decision-maker
could
reasonably have arrived at based on the evidence?’
[9]
[24]
In the application for review before me,
the answers to all of the above-quoted questions are in the
affirmative. In this matter,
I am unable to find that the
Commissioner committed gross irregularity in the conduct of the
arbitration proceedings.
[25]
Except for the reasonableness of the
decision reached, there is not a single averment or submission by the
Applicant which suggests
that the Commissioner (i) did not give the
parties a full opportunity to have their say in respect of the
dispute, (ii) did not
identify the dispute she was required to
arbitrate, (iii) did not understand the nature of the dispute she was
required to arbitrate,
or (iv) did not deal with the substantial
merits of the dispute. All of the grounds for review, as captured
herein before, advance
no case towards that end.
[26]
The
reasonableness test espoused in
Sidumo
is not a stand-alone review ground.
[10]
It seems to me that such is a test by which the reviewability of
arbitration awards is to be ultimately measured.
[27]
It
has, in fact, been held that the
Sidumo
test has not extinguished the specific grounds for review permitted
under s 145 (2) (a) and (b) of the LRA.
[11]
Instead, those specific grounds are to be ‘suffused’ with
the constitutional standard of reasonableness.
[12]
[28]
On
this point, the Labour Appeal Court also had occasion to express
itself as follows:
‘
Nothing
said in
Sidumo
means that the grounds of review in s 145 of the Act are obliterated.
The Constitutional Court said that they are suffused by
reasonableness...’
[13]
[29]
The present application for review
manifests nothing more except a case of an Applicant that is simply
aggrieved by an arbitration
outcome. Out of the grounds for review
advanced, there is no averment which demonstrates that a reviewable
irregularity was committed
by the Commissioner in the conduct of the
arbitration proceedings.
[30]
By way of demonstration, I briefly delve
into the grounds for review as advanced by the application.
[31]
In the first place, the Applicant complains
that the Commissioner made a finding which cannot be justified on the
evidence, alternatively,
that she gravely misunderstood the evidence
as presented by the parties. Neither the finding made nor the
evidence misunderstood
is identified. Secondly, it is contended that
the Commissioner cited and considered the evidence led by the
Applicant at arbitration
on a very limited and selective basis.
Equally, this evidence is not identified.
[32]
Thirdly, the Applicant complains that the
Commissioner failed to enquire into, consider or have regard to (i)
the fact that the
Applicant was not authorised to make adjustments
over R1,000.00, and (ii) the fact that the Applicant reported the
shortages to
his manager and that the manager had actually failed to
make the adjustments.
[33]
At the arbitration proceedings, the
Applicant could not point out the policy that limited his
authorisation on making adjustments
to no more than R1,000. 00. On
the contrary, there was evidence led which demonstrated that the
Applicant had made adjustments
in the past. The reporting of the
shortages did not mean that the Applicant needed to do no more. He
was a manager after all, be
it a trainee or an assistant manager. He
had a responsibility to act in respect of the shortages when it
became clear that the
manager to whom these were allegedly reported
to had not taken any steps.
[34]
It was common cause, at the arbitration
proceedings, that the shortages were picked up after no less than
three days. Considering
the fact that these shortages had to be
adjusted on a daily basis, such was a long time for the Applicant not
to take any pro-active
steps in addressing the matter. To have simply
reported the shortages to the manager was not enough.
[35]
Fourthly, it follows without controversy
that the Applicant’s conduct had an impact on the overall
shrinkage quantification.
There is, therefore, nothing erroneous or
irregular with the Commissioner’s finding to the effect that
the Applicant contributed
to shrinkage in excess of R180 000.00.
[36]
Fifthly, the Applicant did not have a clean
disciplinary record. He was previously issued with a final written
warning. The Commissioner
simply referred to a final written warning
that was part of the Applicant’s disciplinary record. She was,
to me, alive to
the fact that the said final written warning may have
lapsed. The fact that the duration of a written warning has lapsed
does not
result in same being extinguished from the disciplinary
history of an employee.
[37]
Lastly, and most importantly, it is my
judgment that the Commissioner’s alleged failure or neglect to
apply her mind is not
sufficient to upset her arbitration award.
Something more is required in order for the arbitration award to be
set aside.
[38]
It is by now trite in reviews that f
ailure
to have regard to material facts must
actually
defeat the constitutional imperative that the award must be rational
and reasonable.
It,
therefore, seems to me that an arbitrator’s failure to apply
his or her mind must be of such nature as to render the outcome
unreasonable.
[39]
All things considered, it is my considered
view that the outcome decision reached by the Commissioner is one
that falls within the
realm of what is reasonable. The application
for review can, therefore, not succeed. It stands to be dismissed.
[40]
As for costs, I am of the view that each
party should bear their respective costs. This is a matter that lies
entirely within my
discretion. The application for review was
launched at a time when the threshold for interference with
arbitration awards was set
lower by this court. The status
quo
at the time may have motivated the Applicant to launch what is now
clearly an application for review that is simply destitute of
any
merit.
Order
[41]
I, accordingly, make the following order:
(i)
The late delivery of the answering
affidavit in the application for review is condoned.
(ii)
The application to review and set aside the
arbitration award issued by Commissioner Nasima Raffee on 19 May 2011
under case number
GAJB29898-10 is hereby dismissed.
(iii)
There is no order as to costs.
Voyi,
AJ
APPEARANCES:
Acting Judge of
the Labour Court of South Africa
For the
Applicant: Advocate WP Bekker
Instructed by:
Gildenhuys Malatji Inc.
For
the Respondent: Mr Hardus Lee (Attorney) of Snyman Attorneys
[1]
Act
No.
66 of 1995 (“the LRA”)
[2]
The
first is that the commissioner committed misconduct in relation to
the duties of the commissioner as an arbitrator. The second
is that
he committed a gross irregularity in the conduct of the arbitration
proceedings. The third is that he exceeded the commissioner’s
powers.
[3]
Shoprite
Checkers (Pty) Ltd v CCMA and Others
(2009) 30
ILJ
829 (SCA) at para 26;
National
Union of Mineworkers and Another v Samancor Ltd (Tubatse
Ferrochrome) and Others
(2011)
32
ILJ
1618 (SCA) at para 5.
[4]
Under
s 143 (1) of the LRA, it is particularly stipulated that an ‘…
award
issued by a commissioner is final and binding
...’
[5]
(2007)
28
ILJ
2405 (CC) at para 110.
[6]
(2014)
35
ILJ
943 (LAC) at para 15.
[7]
(2013)
34
ILJ
2795 (SCA)
at
para 25.
[8]
Gold
Fields Mining SA
at para 16.
[9]
Ibid
at
para 20.
[10]
See
Health
And Other Services Personnel Trade Union of South Africa
('HOSPERSA') and Another v CCMA and Others
(D498/13)
[2014] ZALCD 37 (12 August 2014)
.
[11]
Herholdt
v Nedbank Ltd (COSATU as Amicus Curiae)
(
supra
)
at para 14.
[12]
Ibid
[13]
Fidelity
Cash Management Service v CCMA and Others
(2008)
29
ILJ
964 (LAC) at para 101