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[2015] ZALCJHB 124
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Fipaza v Tsatsimpe (NO) and Others (JR243/13) [2015] ZALCJHB 124 (15 April 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa,
in
Johannesburg
Case
no: JR 243/13
DATE:
15 APRIL 2015
Not
Reportable
In
the matter between:
NOKWANDA
FIPAZA
....................................................................................................
First
Applicant
And
MAPELO
TSATSIMPE
(N.O.)
...................................................................................
First
Respondent
CCMA
........................................................................................................................
Second
Respondent
ESKOM
HOLDINGS
LTD
........................................................................................
Third
Respondent
Heard:
13 March 2014
Delivered:
15 April 2015
Summary:(Review
–)
Judgment
LAGRANGE,
J
Introduction
[1]
This matter has a long and somewhat
convoluted history, which is summarised in paragraphs 3.1 to 3.4 of
the arbitrator’s award.
In essence, the applicant was dismissed
twice on two separate occasions by the third respondent. Her first
dismissal in 2006 was
referred late and had to be condoned, but the
condonation ruling in her favour was rescinded and she was
unsuccessful in seeking
to have it set aside on review. Shortly after
being employed again by Eskom in 2008, the applicant was dismissed
again. On this
occasion, the reason for the dismissal was her failure
to disclose her previous dismissal to Eskom, even though it was Eskom
that
had dismissed her two years prior.
[2]
The matter came on review before myself and
I found that the applicant’s dismissal was unfair. On appeal,
the LAC confirmed
the unfairness of the applicant’s dismissal
and that the CCMA should determine the appropriate relief. It is the
relief awarded
by the arbitrator which is the subject of these review
proceedings. At the commencement of proceedings, I did raise with the
parties
whether they had any difficulties with me dealing with the
matter and given my prior involvement in the previous review
proceedings,
but neither party was of the view that the application
should be heard by another judge and were content for me to deal with
it.
The
arbitrator’s award
[3]
After hearing additional evidence, the
arbitrator decided that the applicant should receive 12 months’
remuneration by way
of compensation, but declined to order her
reinstatement. The arbitrator’s reasons are set out in
paragraph 5 of her award
and I do not intend to repeat them verbatim
here. By way of summary, the central features of her reasoning are as
follows:
3.1
She correctly identified her role as simply
to determine an appropriate remedy and not to consider the fairness
of the applicant’s
dismissal which had already been determined
by this Court and confirmed by the Labour Appeal Court.
3.2
Nonetheless, having heard evidence about
Eskom's view of the applicant’s lack of trustworthiness
relating to her nondisclosure
of her prior dismissal, the arbitrator
concluded that she ought to have disclosed this and her failure to do
so was in bad faith
and the employer had a valid reason not to trust
her.
3.3
In addition, the arbitrator also considered
evidence about the applicant’s conduct in the course of the
condonation application
arising from her first dismissal in 2006,
which the employer had argued was also relevant to determining the
appropriate relief
even though it concerned conduct committed by her
after her second dismissal in 2008. The arbitrator noted that the
applicant’s
trustworthiness was impugned both by the findings
of the CCMA arbitrator and the Labour Court in those proceedings.
3.4
In conclusion, despite saying that she
found himself bound by the decision of the courts in relation to the
finding that her dismissal
in 2008 was substantively unfair, she
nonetheless found that the applicant did have a duty to disclose her
previous dismissal by
Eskom and added that at least she should have
shown remorse when it was pointed out to her that she should have
done so.
3.5
The arbitrator found that she could
understand why the respondent could not trust the applicant and
decided that reinstatement was
not practicable.
Grounds
of Review
[4]
Firstly, the applicant claims that the
arbitrator essentially contradicted her earlier statements that she
was bound by the decisions
of the Labour Courts by concluding
that her failure to disclose her previous dismissal was in bad faith
and the employer
was entitled not to trust her.
[5]
Secondly, she alleges that the arbitrator
failed to consider section 193(2)(a) of the LRA in terms of which,
apart from other factors,
an arbitrator is compelled to order the
reinstatement or re-employment of an employee unless they do not wish
to be reinstated
or re-employed. In a directly related submission the
applicant also says that the arbitrator failed to consider the
requirements
of section 193(2)(b) of the LRA which required her to
determine if it would be intolerable to reinstate her. In this
regard, the
applicant further contends that the arbitrator found that
her failure to disclose her prior dismissal amounted to a
misrepresentation,
contrary to what the Labour Appeal Court decided.
[6]
Further, she contends that the arbitrator
was not entitled to consider circum-stances arising after her first
dismissal in 2006
as they did not relate to her second dismissal. The
applicant says the arbitrator was grossly unreasonable in taking
account evidence
that she was not remorseful for her failure to
disclose her previous dismissal, as this entailed an assumption that
she ought to
have been remorseful about a misrepresentation which the
Court found she did not make.
[7]
Lastly, the applicant submits that there
was no evidence provided by the employer other than her allegedly
fraudulent conduct in
her job interview as evidence of the
impossibility of restoring the employment relationship, which was a
matter which the Labour
Court and LAC had already made a contrary
ruling on.
[8]
For
good measure, the applicant also argues that the arbitrator failed to
consider if there was any evidence that, it is not reasonably
practicable for the employer to reinstate or re-employ the applicant.
The applicant contends in this regard that the arbitrator
misconstrued the LAC decision in
Maepe
v CCMA
[1]
.
Argument
[9]
Mr. Bhoda reluctantly conceded that there
were some difficulties with the arbitrator’s reasoning in
relation to her finding
that the applicant had acted in bad faith in
not disclosing her previous dismissal to the respondent.
Nevertheless, he submitted
that it was not beyond the arbitrator’s
remit for her to have considered factors canvassed and determined in
the Labour Courts
when considering an appropriate sanction.
[10]
Much of the argument focused rather on the
other leg of the arbitrator’s reasoning. This concerned her
observations about
the post dismissal conduct of the applicant in the
course of the litigation over her first dismissal in 2006 which was
only referred
to the CCMA after her second dismissal.
[11]
The applicant’s referral of her first
dismissal to the CCMA was exceptionally late and was only done after
she had been dismissed
on the second occasion in 2008. The lateness
necessitated the applicant obtaining condonation for the late
referral. The applicant
was granted condonation on a default basis
and Eskom applied to rescind that ruling. In the arbitration
proceedings to determine
the appropriate relief for her second
dismissal, Eskom had relied in particular on certain remarks made by
the Commissioner who
upheld the rescission application and
observations by her Ladyship, Pillay J, who heard the review
application of the rescission
ruling. The employer took those to be
evidence of the applicant’s trustworthiness and it appears that
the arbitrator agreed
with this. Mr Van Graan argued that none of the
observations were warranted and consequently there was no basis for
the arbitrator
taking them into account in determining appropriate
relief in particular under section 193(1)(b) of the LRA.
[12]
It was also argued that if the Court was
minded to set aside the award and order reinstatement, that the Court
should have regard
to the time which had lapsed.
Evaluation
[13]
There is little doubt that the arbitrator
only paid lip service to the findings of the Labour Appeal Court and
of this Court that
the applicant had no obligation to disclose her
previous dismissal by Eskom to it. Despite expressly acknowledging
the Courts’
finding in this regard the arbitrator nonetheless
concluded that:
“
The
applicant’s view was that she had no duty to disclose, implied
or expressed. It is trite that nothing in the Labour Relations
Act
and slashed? the other acts of the employment relationship required a
jobseeker to disclose why s/he left the way of previous
employer/s
.
It is my view though that common law requires such a jobseeker to
disclose material information
. Being dismissed by the respondent
is in my view material and although no statute required the applicant
to disclose, failure to
disclose was in my view acting in bad faith.”
(emphasis
added)
In
arriving at this conclusion, the arbitrator implicitly suggested that
neither the Labour Court nor the Labour Appeal Court had
considered
whether there was a separate common law obligation on the applicant
to disclose her prior dismissal quite apart from
the absence of any
such obligation being imposed by the LRA. This conclusion is directly
at odds with that of the LAC, when it
found:
“
[59]
I am satisfied, accordingly, that the contemplated ground(s) of
I dismissal or withdrawal of the offer, as stipulated
in the contract
and the recruitment form, pertained either to any false or inaccurate
information which Fipaza would have wilfully
provided to the
appellant by way of a positive act on her part or a failure on her
part to provide true and accurate information
as reasonably required
of her in terms of the contract or the law, thus constituting a
material non-disclosure justifying
the appellant to resile from the
contract. However, in my view,
on
the facts of this case, there was no legal or contractual duty on
Fipaza to have disclosed the circumstances under which she
left the
employ of the appellant in 2006, either in her CV, in the recruitment
form or during her interview
.”
[2]
(emphasis
added)
This
unqualified finding of the LAC leaves no doubt in the circumstances
of the case that no legal duty required the applicant to
disclose her
prior dismissal to Eskom. It was therefore disingenuous of the
arbitrator to suggest that the LAC had based its decision
on duties
imposed by statute as a way of avoiding the implications of the
judgement which the arbitrator could not stomach. It
would seem that
the arbitrator was unduly swayed by the evidence of Mr Stein, Eskom’s
Management and Verification Manager,
who was equally reluctant to
accept some of the courts’ findings
[14]
However, even though she did disclose her
prior employment by Eskom, the evidence concerning the applicant’s
failure to disclose
the reasons for her termination, was not the only
evidence led at the arbitration to persuade the arbitrator that her
reinstatement
would be intolerable. As mentioned, the respondent also
placed considerable reliance on the applicant’s conduct
following
her original dismissal in 2006. This had not featured as a
factor in the previous review proceedings in which the focus had been
on the fact of her nondisclosure of her previous dismissal by Eskom.
[15]
The applicant’s original dismissal in
2006 had occurred when she had failed to report for work by a certain
date after she
had been released from duty to undertake postgraduate
studies in the United Kingdom. Originally, she had been due to return
to
work on 5 July 2006. When she did not do so the deadline for
returning to work was extended to 5 September 2006. The letter
extending
the deadline was accompanied by a warning that if she did
not report for work on that day it could result in disciplinary
action
taken against her that could lead to the termination of her
employment. Following her failure to report on 5 September 2006 a
disciplinary
enquiry was convened on 29 September 2006, which
proceeded in her absence. On the date of the enquiry, Eskom had
received a letter
from the applicant acknowledging receipt of the
notice of the enquiry.
[16]
Subsequently,
the applicant was dismissed. Her internal appeal was unsuccessful. In
the letter conveying the outcome of the appeal,
the applicant was
nonetheless advised that she could apply for vacancies in the
future.
[3]
It appears to have
been common cause that at the time the disciplinary enquiry was
convened the applicant was still residing in
the United Kingdom. She
had claimed to have been unable to comply with the deadline to return
to work because of financial constraints.
[4]
Had there been no further interaction between the applicant since
receipt of that letter and her ill-fated appointment and the
dismissal in 2008, Eskom might have had little reason to have qualms
about re-employing her.
[17]
However, the applicant did not accept her
dismissal in 2006 but challenged it as unfair, though she only did so
more than two years
later when she referred a dispute to the CCMA on
30 October 2008. Because the applicant’s referral was
approximately two
years late, she was obliged to apply for
condonation, which was granted by default on 1 December 2008. Eskom
successfully applied
for the rescission of this ruling, and the
applicant’s condonation ruling was reconsidered and dismissed.
The applicant took
the Commissioner’s ruling on review, but was
unsuccessful.
[18]
In the course of considering the rescission
application, the Commissioner noted that in her condonation
application the applicant
had made no mention of the fact that she
had taken up alternative employment with the Department of Minerals
and Energy from September
2007 until she was briefly employed again
by Eskom on 1 June 2008. He also found that the applicant had been
disingenuous in stating
in her founding affidavit that her second
dismissal on 4 June 2008 was “
due
to the existence
of the (first)
dismissal of 29 September 06” (emphasis added), when she was
well aware that she had been dismissed on that
occasion for failing
to disclose to Eskom that she had previously been dismissed by it and
that the CCMA Commissioner presiding
in that matter had already found
her guilty of a fraudulent non-disclosure of that fact. The
Commissioner considering the rescission
application specifically
disregarded that finding, which is the one subsequently set aside in
the later review and appeal proceedings
in the Labour Courts. He
stated:
“
As
indicated earlier, I am not concerned with the merits of the
Commissioner’s ruling in that dispute expressed no opinion
thereon. What concerns me for present purposes
is the false and
misleading averment by respondent in her condonation application that
her dismissal on 4 June 2008 was “due
to the existence of the
(first) dismissal of 29 September 06” and the false averment
following hereon claiming that “therefore
I need closure
on this first dismissal” when, as Respondent well knew, the one
dismissal had nothing to do with the
other, save in the sense alluded
to
.
These facts, which respondent must have known what highly
pertinent ones to be disclosed in the determination of her
application
for condonation
,
are conspicuous by their absence
from any mention in respondent’s affidavit
filed in support
of the condonation application; an ommission which, together with
other material omissions from her application
such as the failure to
disclose the fact that she had in the meantime taken up alternative
employment with the Department of Minerals
and Energy… would
have led me to strongly consider issuing an adverse costs awarded
against the respondent had I have the
jurisdiction to do so,…”
(emphasis
added)
[19]
In the course of considering the merits of
the condonation application, the arbitrator also found that the
referral of the first
dismissal dispute had been actuated by her
second dismissal on 4 June 2008. As mentioned, the applicant was
unsuccessful in reviewing
the arbitrator’s rescission ruling.
[20]
In the judgement of Justice Pillay J
concerning the review of the rescission ruling the learned judge
considered the merits of the
original unfair dismissal dispute and
found that because the applicant had, at the time of her dismissal,
failed to elaborate in
any detail about what she vaguely referred to
as her ‘pecuniary restrictions’ and her ‘British
obligation’,
which she had cited as the reasons for being
unable to return to work, there would have been no merit in allowing
her to ventilate
her dispute at arbitration. Turning to an
application by Eskom for a punitive cost order against the applicant,
the learned judge
made the following observations:
“
The
court has considered this application, but declines to grant it
because the applicant is already penalised by lodging these
frivolous
proceedings which are now a matter of public record. From the record
she emerges as an employee who has not made material
disclosure in
litigating against her former employer about her unavailability to
return to work. Furthermore, as an employee who
has been employed in
management, and who is probably well known in financial circles where
trust is a high priority, anyone seeking
to employ her, anyone
looking into her past record, may discover the information in this
file; that could count against it. The
fact that she had returned to
South Africa, found employment somewhere else, but nevertheless
persisted in applying for employment
with this employer for the
second time also suggests that her employment situation is not
stable.”
[21]
Plainly, the learned judge was of the view
that the applicant’s conduct in the proceedings arising from
her original dismissal
would count against her if she applied for
appointments in the future and that this was sufficient penalty for
launching the ill-considered
review application. In particular, what
appears to have attracted the court’s attention was the
applicant’s lack of
candour in explaining fully the
circumstances which prevented her from returning to work in 2006.
[22]
Under cross-examination in the arbitration
proceedings under review in this application, the applicant was
reluctant to accept the
Commissioner’s conclusion that she had
not been honest in her condonation application when she said that her
second dismissal
was due to the ‘existence’ of the first
dismissal. She pointed out that in the pre-arbitration minute signed
between
herself and Eskom, the parties had agreed that her second
dismissal “relates to circumstances surrounding the previous
termination
of employment.” This demonstrated that it was
understood that there was a link between the two dismissals, which
was not
merely about the fact that she had previously been dismissed.
In relation to the observations of Pillay J, the applicant said that
the learned judge had not been aware of the fact that there was a
contract which said that Eskom would pay for her flight tickets
back
from the United Kingdom. She conceded that her own contract with
Eskom, which would have been before the judge, did not provide
for
this, and that the contract of her husband which she was relying on
had not been placed before the arbitrator.
[23]
Obviously, the arbitrator could not revisit
the findings which had already been made by the Labour Courts on
whether or not the
applicant had acted in breach of her duties
towards Eskom by not disclosing that the reason for her services
being terminated was
that it had dismissed her, in circumstances
where she had disclosed her previous employment with it. It is also
true that the LAC
concluded the following:
“
[54]…
As Fipaza correctly stated in her representations
, the reason for
her dismissal in 2006 had absolutely nothing to do with dishonest or
immoral behaviour on her part
. In Sidumo, the Constitutional
Court observed the significance of dishonesty or lack thereof in
a misconduct charge, when
it stated, amongst others, that 'the
commissioner cannot be faulted for considering the absence of
dishonesty a relevant factor
in relation to the misconduct simply
because '[t]he absence of dishonesty is a significant factor in
favour of the application
of progressive discipline rather than
dismissal'. Clearly, the commissioner did not bother to consider this
aspect of the matter
and in doing so he failed to apply his mind to
the evidence presented before him.
[55]
Indeed,
the fact that Fipaza was dismissed for 'misconduct' did
not justify a carte blanche conclusion that her integrity level was
not
up to standard
. It is clear that the circumstances
surrounding her failure to report for duty timeously were somewhat
unique, although these did
not serve to exonerate her from blame,
hence she was charged for misconduct and convicted accordingly.
However, without more ado,
the fact that the misconduct did not
involve dishonesty was a significant factor which, in my view, would
tend to militate against
the finding of an irreconcilable breakdown
in the trust relationship.
[56]
In any event
, it was clear that the integrity assessment was
conducted before the offer of employment was made to her
, despite
Mr Boda having initially argued that such situation could not have
been the case. …
[57]
In other words, Fipaza was offered employment after the appellant
was satisfied with her integrity assessment report.
It is seriously
doubtful that the appellant would have proceeded to offer her the
position if the appellant was not so satisfied.
Therefore, it appears
to me that the condition in the contract in relation to the integrity
assessment was adequately met to the
satisfaction of the appellant.
[58]
Be that as it may, the fact that in the letter of dismissal the
appellant invited Fipaza to apply for any suitable vacancy
in the
future was, in my view, a further clear demonstration that, despite
her 2006 dismissal, the appellant still regarded her
as a person of
integrity.
Nothing
was alleged or suggested — let alone proved — to
have tarnished Fipaza's integrity during the period since
she left
the appellant in 2006 up to when she applied for the new position in
2008.
Besides her failure to report back to work by the extended deadline,
she was still of the same character and integrity as she was
when she
left in 2006, save that she was then possessed of better academic
qualifications, experience and skills. These were characteristics
and
qualities in her favour, but which would benefit the appellant in its
business operations.”
[5]
(emphasis
added)
[24]
Despite
this, the LAC did not find that was dispositive of the determination
of appropriate relief.
It held that “…
the
issue of the appropriate remedy was not properly canvassed during the
arbitration proceedings. There is not enough information
on the
record to assist in the determination of this important aspect of the
case. Both parties ought to be accorded the opportunity
to present
submissions thereon. The court a quo was therefore not wrong, in
exercising its discretion, to remit the matter
to the CCMA for the
determination of this issue.”
[6]
[25]
Evidence which was led in the arbitration
then did raise additional factors which had not been raised in the
previous Court proceedings.
The first concerned the representations
made by the applicant in the course of the condonation proceedings
following the late referral
of her first dismissal dispute. That took
place after she had already been dismissed on the second occasion in
2008 and after the
integrity assessment referred to by the LAC. The
second concerned the comments of Pillay J in the review proceedings
relating to
the condonation application. Thirdly, there was the
evidence of Mr Stein about the level of trust expected in positions
the applicant
believed she should be placed implications if she were
reinstated, in particular, to the position of Senior Adviser
Measurement
and the Verification: Corporate Services Division to
which she was briefly appointed for her dismissal in 2008. There was
also
some evidence given by the applicant that she was invited by
Eskom to attend interviews for various positions and that the reason
she had not returned from the UK timeously was that she had not been
provided with air tickets in terms of her husband’s
contract
with Eskom.
[26]
As
mentioned previously, the arbitrator’s conclusions cannot be
sustained on the basis of her impermissible reasoning that
led her to
conclude that the applicant did have a duty to disclose the fact that
her previous employment with Eskom had ended on
account of her
dismissal. The question which must be answered is whether her
decision not to reinstate the applicant is one that
no reasonable
arbitrator could have reached on the evidence before her,
notwithstanding this flaw in her own reasoning. For the
sake of
completeness, the approach to reviewing an arbitration award on the
grounds of reasonableness has been expressed in the
following way in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[7]
:
“…
the award was one
that a reasonable decision maker could not reach.
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be
reached on the
evidence and other material properly before the arbitrator. On this
approach the reasoning of the arbitrator assumes
less importance than
it does on the SCA test, where a flaw in the reasons results in the
award being set aside
.
The reasons are still considered in order to see how the arbitrator
reached the result.
That
assists the court to determine whether that result can reasonably be
reached by that route. If not, however, the court must
still consider
whether, apart from those reasons, the result is one a reasonable
decision maker could reach in the light of the
issues and the
evidence
.”
[8]
[27]
The comments by Pillay J were obviously
intended as a critical observation about the applicant’s
failure to provide a full
explanation of her inability to return to
South Africa at a time when she could, and should, have done so. The
learned judge clearly
found the vague references to the applicant’s
“pecuniary obligations” and her “British
obligation”
were unnecessarily obscure in the circumstances and
were a poor reflection on the applicant’s degree of candour.
The findings
of the Commissioner in the condonation application were
somewhat more serious. Effectively, he found that the applicant had
been
deceptive in cryptically referring to her second dismissal as
being due to the ‘existence’ of the first dismissal, when
it was plainly due to her nondisclosure of the fact of her previous
dismissal, whether that dismissal was fair or not. The arbitrator
also found that she should have disclosed her employment in the
interim since her original dismissal. Obviously, these issues would
have been very pertinent to determining the
bona
fide
nature of her condonation
application for the very belated pursuit of that dismissal
claim. Quite apart from the fact that
the applicant did not have an
obligation to disclose to Eskom her previous dismissal in
circumstances where the fact of her prior
employment was already
disclosed to it, the observations of Pillay J and in particular those
of the Commissioner concern other
situations in which the applicant
could be expected to have been more candid and transparent in her
explanations.
[28]
In so far as she offered only the vaguest
references to obligations as being the reason for not being able to
return to work or
to attend the disciplinary enquiry, her coyness in
expanding on those references led to Pillay J deciding that there
would have
been no merit in affording her a later opportunity to
defend herself in arbitration proceedings. The principal victim of
her lack
of candour on that occasion was the applicant herself.
However, in the case of her misrepresentation about the relationship
between
the two dismissals, that representation was clearly intended
to persuade an arbitrator that her challenge to the original
dismissal
had become necessary by reason of its connection to her
second dismissal, as part of the motivation why it had not been
brought
earlier. The applicant’s own attempt to explain this
away in her evidence under cross-examination does not inspire much
confidence
that in future she would not see any difficulty, if it
served her interests, in using the broadest language to conceal
important
issues which she ought to bring to light.
[29]
The evidence of Stein was that the position
the applicant had applied for would involve her working with contract
management and
the allocation of work as well as the approval of
finances. There was no dispute that the position is a senior one and
it is obvious
that Eskom ought not to have to appoint someone to that
post about whom it has legitimate concerns about their openness and
integrity.
[30]
The applicant also argued that it was
impermissible for the arbitrator to consider evidence relating to
events after her dismissal,
and in particular what transpired in the
course of her belated attempt to launch an unfair dismissal dispute
about her original
dismissal in 2006. However, in
First
National Bank – A division of First Bank Ltd v Language &
others
(2013) 34 ILJ 3103 (LAC)
the LAC made it unambiguously clear that:
“
An
employee’s misconduct following dismissal is relevant to
determining whether the employee though shown to be unfairly
dismissed, should be reinstated. See
Zilwa
Cleaning & Gardening Services CC v CCMA & others.”
Obviously,
evidence concerning a former employee’s lack of candour in
circumstances where there is a duty not to conceal material
information, is plainly relevant to the appropriate remedy.
Accordingly, the applicant’s carefully worded condonation
affidavit,
which was designed to obscure the relationship between the
first and second dismissals and which omitted the fact that the
applicant
had been employed in the interim, was relevant to whether
Eskom could say it had significant concerns about her
trustworthiness.
[31]
Consequently, notwithstanding the flawed
reasoning of the arbitrator, her ultimate finding that it would be
inappropriate to reinstate
the applicant is not one that no
reasonable arbitrator could reach. Accordingly, I do not believe that
grounds have been established
for reviewing and setting aside the
award.
Order
[32]
The review application is dismissed.
[33]
No order is made as to costs.
R
LAGRANGE, J
Judge
of the Labour Court
APPEARANCE
For
the Applicant: E.Van Graan SC and P.Kirstein
Instructed
by: Van Der Merwe Du Toit Inc
For
the Second Respondent: F. Boda
Instructed
by: Norton Rose South Africa
[1]
(2008) 29
ILJ
2189
(LAC)
[2]
Fipaza
(LAC) at 565-6. The arbitrator’s finding was also at odds with
the finding of the Labour Court in the original review application,
viz
Fipaza
v Eskom Holdings Ltd
(2010)
31
ILJ
2903 (LC)
at
2915, para [54].
[3]
See
Fipaza
(LAC)
at 553-4, paras [4] – [7]
[4]
Eskom Holdings (Pty) Ltd v N Fipaza,GATW 11414-09 dated 18/05/09
(unreported rescission ruling by Commissioner MH Marcus) at
2.
[5]
At 565-6
[6]
At 568, para [69]
[7]
(2013)
34
ILJ
2795
(SCA) at 2801, para [11]
[8]
At 2802, para [12].(emphasis added)