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[2015] ZALCJHB 186
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Noosi v Exxaromatla and Others (JR291/2011) [2015] ZALCJHB 186 (25 June 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: JR 291/2011
In the matter between:
TSEPANG PASCALIS
NOOSI
Applicant
and
EXXAROMATLA
COAL
First Respondent
COMMISSION FOR CONCILAITION
MEDIATION AND
ARBITRATION
Second Respondent
JOSEPH NGOBENI
Third Respondent
Heard:
11 March 2015
Delivered:
25 June 2015
Summary: Review
application. Condonation for the late filing of the review
application. Insubordination-the test
is not whether the instruction
falls within the job description but whether, the instruction is it
reasonable and lawful. Employee
refusing to obey instruction on the
basis that it does not fall within his job description. Employee
refusing to obey instruction
because the manager of the unit not his
immediate supervisor.
JUDGMENT
MOLAHLEHI J
Introduction
[1]
This
is an application to review and set aside the arbitration award made
by the third respondent (“the Commissioner”)
under case
number MP 4769-10 in terms of which the dismissal of the applicant
was found to have been for a fair reason and, accordingly,
his unfair
dismissal claim was dismissed.
[2]
The
applicant has also applied for condonation for the late filing of the
review application. The application is 8 weeks and 4 days
late. The
applicant blames the union for the delay. The application is opposed
by the first respondent.
The background facts
[3]
The
applicant who at the time of his dismissal was employed as an
electrician was charged and dismissed for the following misconduct:
‘
Contravening
code 11 (Gross Negligence) – occurred on 27
th
January 2010 when he failed to install an emergency stop wire between
the last emergency stop and the feeder breaker on the section
belt in
section 22 and allow the conveyor belt to be operated in
contravention of the Mine Health and Safety Act.
And
Contravening
code 5 (Gross insubordination)- occurred on 27
th
January
2010 when he was instructed by the senior foreman (Head of
Maintance), to stop the section belt in section 22, where the
specified belt was operated without an emergency stop wire between
the last emergency stop and the feeder breaker.’
[4]
In
contending that the dismissal of the applicant was for fair reason,
the first respondent presented the testimony of Mr Schoeman
who
testified that on the day in question, he together with shaft manager
and the mine inspector visited section 22 of the mine.
He further
testified that as they approach the feeder break, they were informed
by the applicant that the section wire was still
not extended from
the last stop switch and was still busy with that task. He then
instructed him to lock it out and to continue
with his other task.
[5]
According
to Mr Schoeman, after giving the instructions, the applicant climbed
on the bridge, walked few meters next to the belt
and turned back
towards them. When asked as to why he did not comply with the
instructions, the applicant engaged in an argument
according to Mr
Schoeman. The mine inspector, who as indicated was with Mr Schoeman,
then instructed that the section be immediately
stopped and an
investigation be conducted.
[6]
The
case of the applicant during the arbitration hearing was that he did
not refuse to obey the instructions given by Mr Schoeman.
His case
seems to also be that Mr Schoeman was not entitled to give him
instructions because he was not his immediate supervisor.
His other
case was also that Mr Schoeman never gave him instructions.
The grounds of review
[7]
The
applicant contends that the Commissioner committed misconduct and
gross irregularity in the approach he adopted in dealing with
the
matter which was properly placed before him. He further contends that
the Commissioner failed to:
a.
investigate
and understand the fact that he was on leave.
b.
determine
whether or not it was his duty to stop the belt and lock it out.
c.
investigate
why Mr Schoeman did not himself stop the belt as he was standing next
to it.
d.
understand
his defence.
e.
caution
the applicant and his representative of the need to put their case to
the respondent’s witnesses.
f.
take
into account that no one was injured in the damage was caused.
The finding that the applicant had
given contradictory evidence is criticised for not being supported by
the evidence on the record.
The arbitration award
[8]
The
Commissioner found that despite the delay in instituting the
disciplinary hearing, which was in contravention of the disciplinary
code was procedurally fair. In terms of the disciplinary code, the
first respondent was supposed to have instituted the disciplinary
hearing within three days of becoming aware of the offence.
[9]
The
Commissioner accepted the justification for the delay in instituting
the disciplinary hearing on two grounds. The first being
that the
applicant was on leave when the need to institute disciplinary
proceedings arose and also because his union had requested
that the
other charges against him be finalised first.
[10]
As
concerning substantive fairness, the Commissioner accepted the
version of the first respondent that the applicant was given
instructions which he failed to carry out. The version was accepted
on the basis that the evidence of Mr Schoeman was never challenged
and that the evidence of the applicant was contradictory.
The condonation application
[11]
As
stated above, the review application was 8 weeks and 4 days out of
the time period prescribed by s 145 of the Labour Relations
Act (“the
LRA”).
[1]
[12]
The
reason for the delay in filing the review application according to
the applicant is because of the confusion that prevailed
between the
union officials who handled his matter. The other reason relates to
the alleged “computer crush,” at the
head office of the
union which resulted in the head office of the union not receiving
the arbitration award.
[13]
The
two people who according to the applicant in the union dealt with his
case was Mr Malahlela of the regional office and Mr Rakau
of the head
office. According to the applicant, he was informed by Mr Malahlela
that after studying the arbitration award, he faxed
it to the email
address of Mr Rakau for an opinion as to whether there were prospects
of reviewing it.
[14]
The
applicant further says that he was advised by Mr Mahlangu that Mr
Rakau informed him that his case was already referred to the
Labour
Court. However, when he enquired later on 7 February 2011 from Mr
Mahlangu about progress, he was told that Mr Rakau had
indicated that
he had no knowledge of the applicant’s case. It was only when
he was reminded about the discussion during
December 2010 that he
recalled the matter. In this respect, the applicant states the
following in his founding affidavit:
‘
27.
Mahlangu referred him (Rakau) to the December 2010 conversation and
Rakau said that he was talking
to a different Mahlangu, and that the
report he gave Mahlangu, to the effect that the case had been lodged
with the Labour Court,
relates a different case, and not mine.
28.
On investigation, it became clear that Mahlalela had indeed sent the
Award for Rakau, had
but Rakau had not received it, due what he
called a computer crush in the NUM’s offices.’
[15]
The
investigation conducted thereafter, according to the applicant,
revealed that the arbitration award was indeed sent to Mr Rakau
but
did not receive it due to the reason stated above. Thereafter, with
the engagement of the technicians, the faxed arbitration
award was
retrieved from Mr Rakau’s computer.
[16]
After
the retrieval of the arbitration award, the applicant consulted with
both Mr Rakau and Mr Mahlalela who advised him that there
were no
prospects of success in reviewing the arbitration award. It was as a
result of this that the applicant instructed the attorneys
to
institute these proceedings.
[17]
The
applicant further states, in the founding affidavit, that both Mr
Mahlalela and Mr Rakau initially refused to provide him with
confirmatory affidavits about what they had told him. They, however,
more than two years later provided the confirmatory affidavits.
The principles governing condonation
[18]
The
test to apply when considering an application for condonation is set
out in
Grootboom
v National Prosecuting Authority and Another,
[2]
in
the
following terms:
‘
50
... the test for determining whether condonation should be granted or
refused is the interests
of justice. If it is in the interests of
justice that condonation be granted, it will be granted. If it is not
in the interests
of justice to do so, it will not be granted….
51
The
interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably
be
left out of consideration in certain circumstances. For example,
where the delay is unacceptably excessive and there is no explanation
for the delay, there may be no need to consider the prospects of
success. If the period of delay is short and there is an
unsatisfactory
explanation but there are reasonable prospects of
success, condonation should be granted. However, despite the presence
of reasonable
prospects of success, condonation may be refused where
the delay is excessive, the explanation is non-existent and granting
condonation
would prejudice the other party. As a general proposition
the various factors are not individually decisive but should all be
taken
into account to arrive at a conclusion as to what is in the
interests of justice.’
[19]
The
factors to take into account in weighing whether the interest of
justice favours the granting of condonation are: (a) the degree
of
lateness or the extend of non-compliance with the prescribed time
frame, (b) the explanation for the lateness or the failure
to comply
with time frames, (c) prospects of success or
bona
fide
defence in the main case; (d) the importance of the case, (e) the
respondent’s interest in the finality of the judgement,
(f) the
convenience of the court; and (g) avoidance of unnecessary delay in
the administration of justice.
[3]
[20]
In
order to succeed in an application for condonation the applicant must
convince the court that he or she deserves an indulgence
that will
allow for the extension of the time frame. In cases involving an
individual dismissal, it is trite that a compelling
case for
condonation need to be made before the court can grant the
indulgence. Put in another way, the Court will not readily
grant
condonation in individual dismissal cases unless the case of the
applicant is compelling.
[4]
In
dealing with the approach to an application for condonation for
individual dismissals, Ndlovu AJ in
Shaik
v South African Post Office Limited and Others
,
[5]
had
the following to say:
‘
[25]
On the basis of the aforementioned considerations, there needs, in my
view, to be a differentiation
in approach between condonation
applications under labour law (the LRA), on the one hand, and under
civil law, on the other, in
that it should generally be more
difficult to obtain the indulgence of condonation under the former,
especially in disputes involving
individual dismissals (not excluding
mass dismissals in appropriate cases), than under the latter. In
other words, condonation
applications under the LRA need to be
subjected to a strict judicial scrutiny test. Of course, every case
will be determined on
its own facts. As stated earlier, I reiterate,
an application for condonation must not be a mere formality or
something for the
taking. In appropriate instances, such as the
present, where there has been a considerably long and egregious delay
in non-compliance
with the rules, condonation should not be granted
lightly. Therefore, whilst the Court has the discretionary power in
relation
to a condonation application, in such matters, the
discretion should, in my view, be exercised less generously.’
[21]
The
approach to adopt when dealing with an application for condonation is
well established in our jurisprudence. The approach to
adopt is set
out in
Melane
v Santam Insurance Co Ltd
,
[6]
in
the following terms:
‘
In
deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefore, the
prospects of success, and the importance of the case. Ordinarily
these facts are interrelated: they are not individually decisive, for
that would be a piecemeal approach incompatible with a true
discretion, save of course that if there are no prospects of success
there would be no point in granting condonation. Any attempt
to
formulate a rule of thumb would only serve to harden the arteries of
what should be a flexible discretion. What is needed is
an objective
conspectus
of all the facts. Thus a slight delay and a good explanation may help
to compensate for prospects of success which are not strong.
Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent's interest
in
finality must not be overlooked.’
Evaluation
[22]
In
the context of a review application, the delay of 8 weeks and 4 days
is excessive and thus required a detailed and full explanation
as to
how it came about.
[7]
The
applicant was in this regard required to indicate in his founding
affidavit the reason given to him by the two union officials
as to
why they refused to provide the confirmatory affidavit and only to do
so two and half years later. It was indicated during
argument that
the reason was because there was a disagreement between him and the
two officials as to the prospects success of
his case.
[23]
In
the circumstances, it seems to me that the supporting affidavits were
obtained as an afterthought after the first respondent
had in its
answering affidavit raised the issue of lack of support of the
allegations made by the applicant in his founding affidavit.
There is
also no explanation as what made the two union officials change their
stand of initially refusing to provide the confirmatory
affidavit.
[24]
If
the submission from the bar by the applicant’s legal
representative was to be accepted, that the two union officials
refused
to provide the supporting affidavit, the question is why no
complaint was raised with the union regarding the same. The applicant
was represented by attorneys who if this was to be true, would
undoubtedly have addressed a letter to the union indicating the
alleged conduct of the two officials.
[25]
The
alleged “crushing of the computers,” is a significant
factor in the explanation of the delay in instituting the
review
proceedings. However, the applicant has not attached any affidavit
from the technicians who had fixed the computers and
assisted in
retrieving the arbitration award. Of further significance is the fact
that the applicant has not provided any date
as to when the “crushing
of the computers” occurred and how long it took the technicians
to fix them.
[26]
It
was further submitted in argument that the Courts do not shift the
blame of failure to comply with the timeframes by the union
on to the
employees and, therefore, the employee in the present matter should
not be blamed for the eight weeks delay in instituting
the present
proceedings.
[27]
The
general principle of our law is that the Court will not readily shift
the blame for failure to comply with the time frames by
a union to an
employee. There are, however, circumstances where the shifting of the
blame to the union will not serve to absolve
an employee who sit idle
and hope to escape his or her responsibility by blaming the union. In
a case of the delay in prosecuting
a claim where the employee
attributes the blame for the delay to the union, he or she has to
make out a case that he or she is
blameless. In the present case, the
applicant has not taken the Court in his confidence in that the
information he has provided
regarding the delay is insufficient to
weigh his role in the eight weeks delay.
[8]
[28]
In
my view, the facts and the circumstances of this case are such that
the employee cannot be absolved from the negligence of the
union. The
proper analysis of the explanation proffered by the applicant raises
the question of whether indeed the union is to
blame for the delay,
in light of the failure to indicate as to what date he was advised
that he had no prospects of success.
[29]
The
other problem with the applicant’s explanation is that no date
has been provided as to when the attorneys were instructed
to take
over the matter from the union. It may well be that the delay was
occasioned by the attorneys also. It may also be as indicated
above
that the two union officials may have told applicant in time that he
did not have a case but he delayed in instructing his
attorneys to
institute the review application.
[30]
In
conclusion, I find that the delay of 8 weeks and 4 days by the
applicant is in light of the poor explanation, excessive
and
therefore the condonation application stands to fail. In my view, the
explanation is so poor that in its proper analysis it
amounts to no
explanation. It is for this reason that I am of the view that the
condonation application stands to fail without
even having to
consider the prospects of success and other related factors.
[31]
In
the event I am incorrect in finding that the condonation application
stands to fail, I am of the view that the application still
stands to
fail even when the merits of the application are considered.
The review test
[32]
It
is trite that an arbitration award can be reviewed on the grounds
envisaged in s 145 of the LRA which are suffused into the
Constitutional standard of reasonableness. The test to apply in
considering the review application is well known and needs no repeat
in this judgment save to state that it requires an investigation into
whether the conclusion reached by the Commissioner is one
that could
not be reached by a reasonable decision maker.
[9]
[33]
I
now turn to consider the merits of the review application.
[34]
In
as far as procedural fairness is concerned, the applicant contended
that the Commissioner failed to take into account the delay
in
instituting the disciplinary proceedings against him.
[35]
It
is apparent from the reading of the arbitration award that the
Commissioner did consider the issue of the delay in instituting
disciplinary proceedings against the applicant. He accepted that the
reason for the delay was because, at the time when the disciplinary
inquiry was to be conducted, the applicant was on leave and also that
it was agreed between the first respondent and the union
that the
other pending cases against the applicant be finalised first before
instituting the disciplinary hearing relevant to this
proceedings.
[36]
It
has not been disputed that before the institution of the disciplinary
proceedings in this matter, the applicant was still faced
with other
disciplinary actions against him. The version of the first respondent
that an agreement was reached with the union that
the institution of
the disciplinary proceedings against the applicant should be delayed
pending the finalisation of other pending
disciplinary action was not
challenged by the applicant. For this reason alone, the criticism of
the finding of the Commissioner
cannot be sustained. Furthermore it
cannot be sustained when regard is had to the relevant parts of
the disciplinary code
which amongst other things provides as follows:
‘
4.24
Provision is made for a more flexible time period in order to protect
the Company in any instances where
the initiation process is slowed
down or beyond the direct control of the Company. A complaint, which
has been verified, should
be initiated within a period of 3 working
days after management have reasonably become aware of such an alleged
offense or complaint.
The Company reserves the right to initiate
disciplinary proceedings outside of the period of 3 working days in
circumstances which
are out of its direct control and the Company
hereby undertakes not to unreasonably delay the initiation of
proceedings;
4.25
The purpose hereof is to ensure that the individual complaint then is
considered by management and
resolved as close as possible to the
point of origin and as expeditiously as practically possible. The
Company and the employees
lodging the complaint made by mutual
agreement extend or reduce the time limit of such procedure.’
[37]
I
am also of the view that there is no basis to challenge the
conclusion reached by the Commissioner in relation to the substantive
fairness of the dismissal. The conclusion reached by the Commissioner
that the dismissal of the applicant was for a fair reason
cannot be
criticised for unreasonableness when regard is had to the evidence
and the material that served before arbitration proceedings.
[38]
Although,
the applicant’s defence is that he was never given instruction
to stop the section belt and install an emergency
stop wire between
the last stop switch and the feeder breaker, he never challenged Mr
Schoeman’s version during his testimony
that that instruction
was given to him.
[39]
The
applicant suggests that the reason for not putting a version to the
first respondent’s witness, concerning whether the
instruction
was given to him, is because of lack of knowledge and skills. It is
for this reason that he contends that the Commissioner
had the duty
to caution him about the consequence of such a failure.
[40]
In
my view, this ground of review has no merit when regard is had to the
fact that the applicant was represented by a union official.
There is
no evidence on the record that the union representative was a lay
person who did not understand the consequence of failure
to put a
version to a witness. The applicant failed to account during cross
examination as to why his representative did not put
the version to
Mr Schoeman.
[41]
The
contention that Mr Schoeman did not have the authority to give
instructions to the applicant is also not sustainable. It is
to be
noted in this regard that the applicant did not dispute that Mr
Schoeman was head of the department in which the applicant
was
employed in, and thus had the authority to give him instructions. The
applicant did not produce any documentary evidence in
the form of a
policy or employment contract to support his version that Mr Schoeman
did not have the authority to give the instructions.
[42]
The
contention of the applicant that he was an electrician and,
therefore, it was not his duty to perform the instructions given
to
him is also unsustainable. This contention is not supported by the
evidentiary material presented during the arbitration hearing.
The
documents presented by the first respondent during the arbitration
proceedings support the testimony of Mr Schoeman that the
instructions given fell within the responsibility of the applicant.
The test is not whether the instructions fall within the job
description of the employee but whether it was reasonable and lawful.
In this regard, I align myself with what is stated in
Exxaro
Coal Mpumalanga Ltd v CCMA and Others
–(unreported case number; JR 269/11 where the Courtheld that:
‘…
Should
it be shown that the instruction was unlawful, it would be the end of
the inquiry. If it is found that the instruction was
lawful, the
expectation is that the employee to whom such instruction was issued
should have complied. It will have little, if
any, to do with whether
the instruction related to the employee’s job description
because it will never be a justification
for an employee to refuse
lawful instructions merely because the instructions are not he’s
or head direct functions.’
[43]
In
any event, the documentary evidence presented by the first respondent
during the arbitration hearing which was also not challenged
indicate
that the applicant, as an electrician, was also responsible for the
task he was required to perform by Mr Schoeman.
[44]
As
concerning the allegation that the Commissioner failed to take into
account the inconsistent application discipline, it is not
clear
whether the two electricians which the applicant refers to are
alleged to have committed the same offence as that for which
he was
charged with. It is trite in our law that where the employee relies
on inconsistent application of discipline in contending
that the
dismissal was unfair, he or she has the evidentiary duty to show that
discipline in relation to which he or
she dismissed for
had not been consistently applied by the employer. It has also been
accepted that inconsistency is not a rule
but rather a factor to take
into account when considering the fairness of a dismissal.
[45]
In
the present case, the Commissioner cannot be accused of having
committed a reviewable conduct in this regard because, in my view,
the applicant has failed to establish a
prima
facie
case of inconsistency. In any case, the testimony of Mr Schoeman
revealed that other electricians had previously been disciplined
for
similar misconduct and that was also not challenged by the applicant.
[46]
Turning
to the issue of no loss or damage suffered by the first respondent as
result of the conduct of the applicant that in my
view does not
automatically lead to the conclusion that the dismissal was unfair.
It is of course a factor to take into account
in the assessment of
whether the sanction of dismissal is fair or otherwise. It has to be
weighed against all other factors and
the circumstances of the case
including the seriousness of the misconduct. The misconduct in the
present instance was very serious
when regard is had to the
circumstances in which it was committed.
[47]
As
concerning the issue of the appropriateness of the sanction of
dismissal, it is apparent from the reading of the record that
the
conclusion reached by the Commissioner is one, having regard to the
seriousness of the offence, which any reasonable Commissioner
could
have reached. In the circumstances of this case, I am of the view
that the misconduct committed by the applicant was serious
enough to
breakdown the trust relationship between the parties in particular
when regard is had to the fact that the instruction
related to
safety.
[48]
In
the circumstances, I find that the applicant has failed to make out a
case justifying interference with Commissioner’s
award. I do
not, however, believe that it would be fair to allow costs to follow
the results.
Order
[49]
In
the premises, the applicant’s application to review the
arbitration award made third respondent under case number MP 4769-10,
is dismissed with no order as to costs.
______________
Molahlehi
Judge of the Labour
Court, Johannesburg
Appearances:
For the Applicant:
Mr E.S. Makinta of Makinta Attorneys
For the First Respondent: S Lyden
Shepstone and Wylie Attorneys
[1]
Act
no 66 of 1995. Section 145 of the LRA reads as follows:
(1)
Any party to a
dispute
who alleges a defect in any arbitration proceedings under the
auspices of the Commission may apply to the Labour Court for an
order setting aside the arbitration award -
(a)
within six weeks of the date that the award was served on the
applicant,
unless the alleged defect involves the commission of an
offence referred to in Part 1 to 4 or section
17, 20
or
21
(in
so far as it relates to the aforementioned offences) of Chapter
2
of
the
Prevention and Combating of Corrupt Activities Act, 2004
; or
(b)
if the alleged defect involves an offence referred to in paragraph
(a), within six
weeks of the date that the applicant discovers the
corruption such offence
(1A)
The Labour Court may on good cause shown condone the late filing of
an application in terms
of subsection (1).
[2]
(2014)
35
ILJ
121 (CC) at paras 50-51.
[3]
See
Foster
v Stewart Scott Inc
(1997)
18 ILJ 367 (LAC) at 369C-D.
[4]
See
Queenstown Fuel
Distributors CC v Labuschgne NO and Others
[2000] 1 BLLR 45
(LAC) at para 25.
[5]
(DA
4/09)
[2013] ZALAC 18
(19 July 2013).
[6]
1962 (4) SA 531
(A) at 532C-E.
[7]
See
Uitenhage Transitional
Local Council v South African Revenue Services
1983 (4) SA 212
(SCA) at para 6 and
Shaik
v South African Post Office Limited and Others
(
supra
)
at para 20.
[8]
The
principle that shifting of blame to a representative does not always
absolve a litigant from the responsibility of non-compliance
with
the time frame is set out in
in
Saloojee
and Another v Minister of Community Development
1965
(2) SA 135
(A
)
at
140H-141H
in
the following terms:
‘
This
Court has on a number of occasions demonstrated its reluctance to
penalise a litigant on account of the conduct of his attorney.…
I should point out, however, that it has not at any time been held
that condonation will not in any circumstances be withheld
if the
blame lies with the attorney. There is a limit beyond which a
litigant cannot escape the results of his attorney's lack
of
diligence or the insufficiency of the explanation tendered. To hold
otherwise might have a disastrous effect upon the observance
of the
Rules of this Court. Considerations
ad
misericordiam
should not be allowed to become an invitation to laxity. In fact
this Court has lately been burdened with an undue and increasing
number of applications for condonation in which the failure to
comply with the Rules of this Court was due to neglect on the
part
of the attorney. The attorney, after all, is the representative whom
the litigant has chosen for himself, and there is little
reason why,
in regard to condonation of a failure to comply with a Rule of
Court, the litigant should be absolved from the normal
consequences
of such a relationship, no matter what the circumstances of the
failure are. (Cf.
Hepworths
Ltd v Thornloe and Clarkson Ltd.
,
1922 T.P.D. 336
;
Kingsborough
Town Council v Thirlwell and Another
,
1957
(4) SA 533
(N)
).
A
litigant, moreover, who knows, as the applicants did, that the
prescribed period has elapsed and that an application for
condonation
is necessary, is not entitled to hand over the matter to
his attorney and then wash his hands of it. If, as here, the stage
is
reached where it must become obvious also to a layman that there
is a protracted delay, he cannot sit passively by, without so
much
as directing any reminder or enquiry to his attorney (cf.
Regal
v African Superslate (Pty.) Ltd., supra
at p. 23
i.f.)
and expect to be exonerated of all blame; and if, as here, the
explanation offered to this Court is patently insufficient, he
cannot be heard to claim that the insufficiency should be overlooked
merely because he has left the matter entirely in the hands
of his
attorney. If he relies upon the ineptitude or remissness of his own
attorney, he should at least explain that none of
it is to be
imputed to himself.’
[9]
The reasonable decision maker test in labour matters was first
confirmed in
Sidumo
and Another v Rustenburg Platinum Mines and Others
[2007] 12
BLLR 1097
(CC) and was later explained several other judgements of
the courts including
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae),
(2013)
34
ILJ
2795
(SCA) at 2801 where the court held:
‘
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.
’