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[2015] ZALCJHB 58
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Efficient Engineering (Pty) Ltd v Metal And Engineering Industries and Others (JR1019/14) [2015] ZALCJHB 58 (3 February 2015)
iAfrica
Transcriptions (Pty) Ltd
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO
: JR1019/14
DATE:
03 FEBRUARY 2015
In
the matter between
EFFICIENT
ENGINEERING (PTY)
LTD
.............................................................................
Applicant
And
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
..........................................................................................
First
Respondent
COMMISSIONER
N.P.
MBEKWA
........................................................................
Second
Respondent
UCIMESHAWU
Obo JOHANNES
MOICHELA
...................................................
Third
Respondent
J
U D G M E N T
STEENKAMP
J
:
This
is an application
to have an
arbitration award by the second respondent, Commissioner Pearl
Mbekwa, reviewed and set aside. The Commissioner found
the dismissal
of the employee, Mr Johannes Moichela, to be unfair and ordered the
applicant to reinstate him.
Ms
Dreyer,
for the applicant, submitted that another commissioner could have
come to a different conclusion from that reached by Commissioner
Mbekwa. I agree, but that is not the test. The test is
that set out in
Sidumo
[1]
and in
Herholdt
v Nedbank Ltd
[2]
,
that is whether the conclusion reached by this Commissioner is so
unreasonable that no other commissioner could have come to the
same
conclusion.
Even
if the Commissioner is wrong, that is not a ground for review.
I
debated with Ms
Dreyer
the four grounds of review set out in Section 145 of the Labour
Relations Act, that is that the Commissioner committed misconduct;
a gross irregularity; exceeded her powers; or that the award was
improperly obtained.
Ms
Dreyer
conceded that not one of those criteria had been met in this case.
She
raises two grounds of complaint. The first is that the Commissioner
was wrong in finding that the employer was inconsistent
by
disciplining the employee in this case, Mr Moichela, and not his
colleague, Mr Ronnie Booysen.
It
may be that the circumstances in which the forklift was damaged,
relating to those two employees, were not exactly the same.
Even if that is so, that does not make the award open to review
unless the conclusion was so unreasonable that no other commissioner
could have come to the same conclusion.
The
applicant also submits in its founding affidavit that the arbitrator
"erred" in not taking cognisance of various bits
of
evidence. Once again that is not the test on review as opposed
to appeal.
The
second main ground of review raised by Ms
Dreyer
in her oral argument is a procedural irregularity in that the
arbitrator misconstrued the nature of the misconduct when compared
to
the employer's disciplinary code.
She
submitted that the employee had a previous final written warning for
what is termed an "attitudinal offence". There
are two
answers to this. The first is that, as the arbitrator pointed out,
the code is a guideline. The arbitrator then finds that
there was no
fair reason for the employer in this case to overlook its code, and
that under the heading for the offence "damage
to equipment or
materials" various sanctions are listed, ranging from a written
warning progressively to dismissal.
Secondly,
the arbitrator took into account that the employee in this case had
service of 33 years and she found that the misconduct
for which he
had a final written warning could not be categorised as the same as
the one for which he was dismissed.
I
may differ with that reasoning; so may another arbitrator.
Another arbitrator could have found differently. However, I cannot
find that the conclusion reached by the arbitrator on the evidence
before her does not fall within a range of reasonable outcomes.
For
that reason the award is not open to review, as opposed to appeal.
The
application for review is dismissed.
STEENKAMP
J
APPEARANCES
APPLICANT:
Ms E Dreyer
Instructed
by: Corien Potgieter.
[1]
Sidumo
v Rustenburg Platinum Mines Ltd
(2008)
2 BCLR 158 (CC).
[2]
2013 (6) SA 224
(SCA).