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[2015] ZALCJHB 219
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SATAWU obo Mashinini v National Bargaining Council for the Road Freight Industry and Others (JR696/11) [2015] ZALCJHB 219 (27 July 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR696/11
DATE: 27 JULY
2015
Not Reportable
SATAWU obo PETROS
MCINIZELI
MASHININI
............................................................
Applicants
And
NATIONAL
BARGAINING COUNCIL
FOR THE ROAD
FREIGHT
INDUSTRY
.................................................................
First
Respondent
MOHINI SOMAN
N.O
............................................................................................
Second
Respondent
GRINDROD
LOGISTICS
.........................................................................................
Third
Respondent
Heard: 22
May 2014
Delivered:27 July
2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
In this application, the applicants seek an
order to review and set aside the arbitration award dated 7 February
2011, issued under
case number RFBC 13194 by the second respondent
(the Arbitrator). In her award, the Arbitrator found that the
dismissal of the
employee (Mashinini) was for a fair reason and in
accordance with a fair procedure. She accordingly dismissed the
application.
[2]
The third respondent filed its opposing
affidavit to the review application out of time, and condonation is
sought in that regard.
The applicants oppose this application.
Application for
condonation:
[3]
For
the sake of convenience, the parties’ citation in respect of
both applications shall remain the same. The legal principles
applicable to applications for condonation are fairly well
established. The approach that the courts have adopted over the years
in exercising a discretion to grant condonation, is based upon a
consideration of a compendium of interrelated factors which
include
[1]
:
a.
The degree of non-compliance with time
frames, the explanation therefor, the importance of the case and the
prospects of success
on the merits of the main claim. The Courts
ordinarily look objectively at all these facts in exercising its
discretion. Thus in
circumstances where there is a negligible delay
accompanied by a reasonable and acceptable explanation, this may
compensate for
prospects of success which may not necessarily be
strong. In some instances, where there is a reasonable and
satisfactory explanation,
it may not be necessary to look at the
prospects of success.
b.
Where
however the period of delay is excessive and the appellant’s
(respondent’s herein) purported explanation for the
delay is no
explanation at all, the courts will not readily grant an
indulgence
[2]
. Furthermore, the
importance of the main matter and strong prospects of success may
tend to compensate for a long delay. It is
further important that an
application for condonation must be brought as soon as the party
which applies for it becomes aware of
the need to do so
[3]
.
c.
One
of the factors to determine whether or not the condonation
application should be granted is whether it in the interests of
justice to do so. This point was made by the Constitutional Court in
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[4]
where Jacoob J stated that:
‘
It
is appropriate that an application for condonation be considered on
the same basis and that such an application should be granted
if that
is in the interests of justice and refused if it is not. The
interests of justice must be determined by reference to all
relevant
factors including the nature of the relief sought, the extent and
cause of the delay, the nature and cause of any other
defect in
respect of which condonation is sought, the effect on the
administration of justice, prejudice and the reasonableness
of the
applicant’s explanation for the delay or defect.’
[5]
The extent of the
delay:
[4]
The Notice of Motion together with the founding affidavit to the
review application was filed and served on 1 April 2011. The
Notice
of Opposition was filed on 30 May 2011. The notice in terms of Rule
7A (8) was served on the third respondent’s attorneys
on 19
December 2012. The opposing affidavit was filed and served on 8 April
2013 instead of on or before 7 January 2013, and is
accordingly three
months out of time.
[5]
The applicants confirmed that the delay is indeed about three months,
which it was contended is excessive. I am in agreement
with the
applicants that the delay is indeed excessive,
albeit
not in
the extreme
.
The explanation
for the delay:
[6]
In explaining the delay, the third respondent’s attorney of
record, Mr Glen Kirby-Hirst deposed to an affidavit in which
he
averred that upon receipt of the notice in terms of Rule 7A (8) on 19
December 2012, his office had checked the client’s
file and
ascertained that they had not been forwarded a notice in terms of
Rule 7A (6) with the Commissioner’s notes. Correspondence
was
then addressed to the applicants’ attorneys on 21 December 2012
setting out this fact and advising that the third respondent
would
not be in a position to prepare any opposing affidavit until the
Arbitrator’s notes were received.
[7]
A further complication according to Kirby-Hirst was that in the
supplementary affidavit, the applicants had not utilised the
arbitrator’s notes but theirs. A letter was received from the
applicants’ attorneys advising that an undertaking was
made by
the third respondent’s then correspondent attorneys (Eversheds)
that opposing papers would be filed by 28 January
2013. The
applicant’s attorneys’ response was to send
correspondence to the applicants’ attorneys referring to
the
letter of 21 December 2012 regarding the non-receipt of the Rule 7A
(6) notice. On 12 February 2013, the third respondent’s
attorneys were copied in correspondence indicating that the Rule 7A
(6) notice was indeed served on Eversheds on 29 November 2012.
[8]
The third respondent’s attorneys however believed that as at 21
December 2012 no notice in terms of Rule 7A (6) had been
received and
this was simply a genuine error on their part. It was only thereafter
that the opposing affidavit was prepared.
[9]
Further problems in preparing the opposing affidavit were encountered
with the initial individual who had instructed the third
respondent’s
attorneys on the matter having left the company’s employ. The
National Manager: Human Resources, Mr Lubbe
had to consider the
matter from inception before the opposing affidavit could be
finalised, but he was further constrained as he
was not readily
available due to having to attend to other arbitration matters
nationally.
[10]
Kirby-Hirst further averred that there was no attempt by the third
respondent to delay the matter and that there was a genuine
error
with regards to the receipt of the Rule 7A (6) notice, which was
further compounded by separate correspondence between the
third
respondent’s correspondent attorneys and the applicants’
attorneys, which had also led to confusion.
[11]
In opposing the application for condonation, the applicants in an
affidavit deposed to by its Gauteng Provincial Secretary,
Mr
Christopher Nkosi averred that on 19 December 2012, the applicants’
attorneys of record had delivered its notice in terms
of Rule 7A (8)
together with a supplementary affidavit. On 21 December 2012, the
third respondent’s attorneys had requested
the Arbitrator’
notes at the time when the applicants’ attorneys had already
delivered the Arbitrator’ notes
to the third respondent’s
correspondent attorneys.
[12]
It was denied that the applicants only used their own notes when
finalising the supplementary affidavit, and it was further
contended
that the third respondent failed to deliver an answering affidavit to
the review application within 10 days of receipt
of the applicants’
notice in terms of Rule 7A (8) and the supplementary affidavit.
[13]
It was further submitted that the third respondent’s attorneys
had delivered an application for condonation for the late
delivery of
the answering affidavit to the review application on 8 April 2013,
some three months late. The third respondent had
also not tendered an
explanation as why the matter was only investigated after 7 February
2013 when the records had been delivered
in November 2012.
[14]
The application was further opposed on the basis that it took the
third respondent two months to check with the correspondent
attorneys
if and when the records had been served; that it was improbable that
someone who had no knowledge of the facts of the
matter like Lubbe
would have been of any assistance in finalizing the opposing
affidavit, and further that even after the third
respondent’s
attorneys had become aware of when the records were filed, it still
took two months to deliver the answering
affidavit. It was denied
that the delay was caused by any confusion, and if indeed there was
such confusion, it could have been
clarified with the correspondent
attorneys.
[15]
It was acknowledged by the applicants that the delay in the
prosecution of this matter was occasioned by a lack of a proper
record of proceedings, necessitating that such a record be
reconstructed. Be that as it may, I am of the view that the
explanation
given for the delay in filing the opposing affidavit is
less than satisfactory.
[16]
The third respondent was as correctly pointed out on behalf of the
applicants, aware from December 2012 that its answering
affidavit was
late and had not brought this application immediately it became aware
of the need to do so. Furthermore, there is
no explanation in regards
to periods between December 2012 when the Notice in terms of Rule 7A
(8) was served and 8 February when
correspondence was addressed to
the applicants’ attorneys in response to the latter’s
correspondence of the previous
day. At that stage, it should have
been clear to the third respondent that the Rule 7A (6) had been
served on its correspondent
attorneys. It is not stated as to when
the third respondent had allegedly began to investigate the matter,
or when the true circumstances
of events were ascertained, or even
when the attorneys had started to prepare the opposing affidavit.
[17]
The excuse surrounding the work commitments of Lubbe cannot be
accepted as reasonable or acceptable in the light of the third
respondent’s clear appreciation as in December 2012 that there
was indeed a need to file the application. Ultimately, the
third
respondent has not explained every period of the delay in detail as
correctly pointed out on behalf of the applicants.
Prospects of
success and other considerations:
[18]
The prospects of success or
bona
fide
defence mean that all that needs to be determined is the likelihood
or chance of success when the main case is heard
[6]
.
In determining whether the delay in bringing the proceedings is
unreasonable the court is obliged to exercise a judicial discretion
taking into account all the other relevant circumstances.
[19]
In line with the
dictum
in
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[7]
,
the
interests of justice must be determined by reference to all relevant
factors. Thus where the prospects of success are so good
as to
compensate for egregious and unexplained delays, the interests of
justice will dictate that condonation should be granted.
This primary
consideration is premised on the fact that it would not be in the
interest of justice to deny a party the right to
defend an
application in circumstances where it has more than good prospects of
success on the merits in respect of the main claim.
[20]
In this case, a further consideration is the prejudice caused to the
applicants by having the merits aired after such a lengthy
delay. It
was conceded on behalf of the applicants that the delay was caused by
the non-availability of a proper record of proceedings.
The award was
issued on 7 February 2011 and the applicants were only able to file
the Rule 7A (6) Notice in June 2012, whilst the
supplementary
affidavit was only filed on 19 December 2012. Inasmuch as the delay
by the third respondent in filing the opposing
affidavit was three
months, there was already a delay of about 19 months related to the
unavailability of the record. The applicants
in this regard have not
stated what steps were taken to secure the record timeously other
than to concede that there were delays
in that regard. To this end,
any prejudice to be suffered as a result of the merits of the main
application being aired after a
lengthy delay is not purely due to
the conduct of the third respondent.
[21]
In conclusion, having had regard to all the relevant factors
pertinent to such applications, and further having had regard
to the
interests of justice, I am satisfied that the inadequate explanation
for the delay is compensated by the third respondent’s
strong prospects of success on the merits as shall be illustrated
below. To this end, it is concluded that the application should
be
granted.
The review
application:
(i)
Background:
[22]
Mashinini was employed with effect from 31 January 2007 as a Code 14
Driver. His services were terminated on 6 July 2010. The
dismissal
followed upon a disciplinary enquiry into allegations of misconduct
pertaining to failure to adhere and execute work
in accordance with
accepted rules and regulations of the company including being
negligent in that he had exceeded the speed limit.
Mashinini disputed
the procedural and substantive fairness of his dismissal and had
referred a dispute to the NBCRFI. The dispute
came before the
arbitrator resulting in the award which is the subject of this review
application.
(ii)
The arbitration proceedings and the
award:
[23]
At the arbitration proceedings, the third respondent in this case had
relied upon the evidence of its Operations Supervisor
(Dlamini), and
a copy of speed violation report (C-Track). Mashinini reported
directly to Dlamini. The evidence before the arbitrator
was that on
23 June 2010, Mashinini had in the course of driving a company truck,
exceeded the speed limit of 90km. Furthermore,
between 15h30 and
15h50, he had driven the vehicle at speeds ranging between 96kh and
103km. At some point, Mashinini drove in
excess of the speed limit
for over thirty minutes.
[24]
Further evidence led was that Mashinini was issued with a final
written warning on 8 October 2009 for a similar offence. According
to
Dlamini, Mashinini was also counselled and disciplined for aggressive
behaviour towards other employees. Dlamini further denied
having
instructed Mashinini at any stage to drive over the speed limit.
[25]
The driving habits of Mashinini on 23 June 2010 were observed from
the C-Track System. Dlamini further testified that when
he was
monitoring the truck and observed Mashinini exceed the speed limit,
he had called him and the latter’s response was
that the
trailer was pushing the truck.
[26]
Mashinini’s response to the allegations was that he had
experienced problems with Dlamini who had treated him differently
from other drivers by allocating to him lesser trips, which meant
that he gained less monetary incentives (from his trips). He
had
lodged a grievance against Dlamini. He had also confirmed a telephone
call from Dlamini on 23 June 2010 at 15h30, who had instructed
him to
attend to a client before 16h00. He denied that Dlamini spoke to him
about exceeding the speed limit and further testified
that other
drivers had not been disciplined for exceeding the speed limit in the
past.
[27]
Mashinini further denied having been counselled or receiving any
warnings. He confirmed receiving a letter from the employer
informing
drivers to keep to the speed limit of 90km/h. He nevertheless did not
understand the contents of that letter, and believed
that the letter
allowed drivers to speed. His further view was that the speed limit
for trucks is 120km/h, and since he had not
received any speeding
fines he had not broken any law. Mashinini’s further evidence
at the arbitration proceedings was that
the employer forced drivers
to travel at 90km/h even when the speed limit was 80km/h. He had
conceded having exceeded the speed
limit on 23 June 2010, but only
due to the instruction he had received from Dlamini to rush to
another client before 16h00.
[28]
The arbitrator in regards to whether the dismissal was substantively
fair made the following findings:
28.1
It was common cause that the required speed limit for truck drivers
at the company was 90km/h. Mashinini
had conceded that he had
received a letter informing drivers of the required speed limit.
28.2
The C-Track report for 23 June 2010 was not placed in dispute, and it
should be accepted that Mashinini was
indeed driving over the
required speed limit between 15h30 and 15h50. The employer reserved
the right to discipline drivers who
did not adhere to the required
speed limit as evidenced from its letter of 16 October 2007.
28.3
It was highly improbable that Mashinini could have been instructed by
Dlamini to knowingly break company
rules. Mashinini was aware of the
rule and the consequences should he break the rules.
28.4
Despite Mashinini’s denials, the arbitrator was satisfied that
he had been previously issued with warnings
for failing to adhere to
prescribed speed limits.
28.5
Mashinini was not a credible witness as he had initially testified
that he understood the speed limit to
be 120km/h and had later
conceded that it was 90km/h as per the employer’s letter.
Furthermore, despite Mashinini’s
denials that he had not
received any traffic fines for road violations, he had also conceded
that he had received a fine for driving
over the limit in a 80km/h
zone. The arbitrator rejected Mashinini’s version that he had
not been called by Dlamini about
speeding on 23 June 2010.
28.6
The employer had presented a probable version that Mashinini was
guilty of the charge against him, and had
further shown that he was a
habitual offender, and that the dismissal was the appropriate
sanction for the offence.
28.7
In regards to procedural fairness, the arbitrator concluded that
Mashinini was given sufficient time to prepare
for the hearing; that
he was represented by a shop steward; and had sufficient opportunity
to ask for clarity on the charges prior
to the hearing. Mashinini had
not objected to the hearing proceedings and there was nothing to show
that he was unable to respond
to the charges against him. The
employer had therefore shown that a fair procedure was followed.
(iii)
The grounds of review:
[29]
In the founding affidavit, the applicants attacked the arbitrator’s
award on the basis that she has concluded that Mashinini
was a
habitual offender without having regard to whether previous warnings
were issued, and if so whether they were valid and whether
they had
expired or not. It was also submitted that the arbitrator
failed to take into account the bad relationship between
Mashinini
and Dlamini, and that there was a motive to dismiss him. Furthermore,
it was contended that the arbitrator failed to
consider whether the
third respondent had applied the rule consistently, thus committing
gross irregularity.
[30]
The supplementary affidavit deals with the same grounds of review
other than to add that the arbitrator committed misconduct
and/or
gross irregularity in the conduct of proceedings by excluding
material evidence that Mashinini had continuously been subjected
to
inconsistent treatment during the duration of his employment. This
was in relation to previous warnings in circumstances where
such
warnings were not warranted and where other drivers were not
disciplined for similar transgressions. It was further added
that the
arbitrator made errors of law in ignoring the inconsistent treatment
where it was not justified; that she had failed to
acknowledge that
Mashinini had corrected his behaviour subsequent to the warning
issued on 8 October 2009; that Mashinini had exceeded
the speed limit
due to the instruction issued by Dlamini to rush to a client in
circumstances where Mashinini had limited time
to reach that client.
[31]
The issue of inconsistency was amplified in the written heads of
arguments and in these proceedings, wherein the applicants
alleged
that the arbitrator had committed a gross irregularity in the
proceedings. This according to the applicants was in the
light of
uncontested evidence that other truck drivers had exceeded the speed
limit but were not charged or dismissed.
(iv) The legal
framework in respect of review applications:
[32]
The basis upon which a reviewing court can interfere with an award is
where the court is satisfied that the decision reached
by the
arbitrator is one that a reasonable decision-maker could not reach on
the material placed before him or her
[8]
.
Central to this enquiry is for the reviewing court to ask the
questions posed in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[9]
being;
“…
.(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”
(v)
Evaluation:
[33]
The applicants did not, in the review application, take issue with
the arbitrator’s findings on procedural fairness.
The third
respondent had correctly summarised the applicants’ grounds of
review under four main issues,
viz
, the defence that Mashinini
was told to rush to a client; the arbitrator’s conclusions that
Mashinini was a habitual offender;
the bad relationship between
Mashinini and Dlamini which the arbitrator allegedly failed to
address, and lastly, the alleged inconsistent
application of
discipline.
[34]
In line with the questions to be posed and answered as per the
dictum
in
Goldfields
, I did not understand the applicant’s case
to be that the process that the arbitrator employed in the
arbitration proceedings
did not afford the parties a full opportunity
to have their say in respect of the dispute. The attack is primarily
against the
conclusions reached.
[35]
As evident from the arbitrator’s award, the issue in dispute
before her was whether Mashinini was dismissed for a fair
reason and
in accordance with a fair procedure. The arbitrator therefore
properly identified the dispute she was required to arbitrate.
Similarly, I did not understand the applicants’ case to be that
the arbitrator misconstrued the nature of the dispute she
was
required to arbitrate.
[36]
It is acknowledged that in terms of her duty to deal with the matter
with the minimum of legal formalities as implored by the
provisions
of section 138 (1) of the Labour Relations Act, the arbitrator was
also expected to deal with the substantial merits
of the dispute.
Section 138 (7) (a) of the LRA further requires the arbitrator to
issue an arbitration award with
brief
reasons
.
Brief reasons in my view implies that the award should contain a
brief summary of the evidence presented including facts that
are
common cause, those in dispute, a brief analysis of the issues and
material presented in arbitration proceedings, and conclusions
based
on that evidence. Central however to the brief reasons given is that
they should not be “
entirely
disconnected with the evidence
”
or “
unsupported
by any evidence”
or “
involve
speculation
by the arbitrator”
[10]
.
Furthermore, a failure to deal with any particular fact will not
constitute a reviewable irregularity, unless this failure may
lead to
an unreasonable result.
[37]
In this case, having had regard to the record
albeit
in its reconstructed form, and further having had regard to the
contents of the award, and the submissions made on behalf of the
parties, I am satisfied that the arbitrator dealt with the
substantial merits of the dispute before
her,
and arrived at a decision that falls in a band of decisions to which
a reasonable decision maker could come on the available
material.
This conclusion is based on the following;
37.1
There is no merit in the applicants’ contention that the
arbitrator’s conclusions in rejecting Mashinini’s
explanation for breaking the speed limit amounted to gross
irregularity. It was common cause that Mashinini had exceeded the
speed
limit, and that despite his initial denials, he was aware of
the company rule in regards to speed limits. Mashinini’s
explanation
that he may have received the letter in regards to the
speed limit, or that he did not understand its contents, or that he
understood
it to imply that drivers could exceed the speed limit
clearly led to doubts as to the probabilities of his version.
37.2
Mashinini’s version that he was instructed by Dlamini to exceed
the speed limit was so inherently improbable and devoid
of any truth
that it was properly rejected by the arbitrator. It is apparent that
Mashinini had clearly misconstrued an instruction
to go to a client
before a certain time as a license to exceed the speed limits.
Mashinini’s alternative version that he
was speeding because
the trailer was pushing the truck is not worth attending to due to
its lack of logic
.
37.3
In making a finding that Mashinini was a habitual offender, before
the arbitrator was a bundle containing a written warning
issued on 27
October 2009 related to exceeding the speed limit valid for 12
months; a further written warning issued on 15 May
2009 and another
verbal warning issued on 18 March 2009. The fact that these warnings
had expired or that Mashinini had refused
to accept or acknowledge
them is immaterial, as it is the cumulative effect of these warnings
that informed the arbitrator that
Mashinini was indeed a habitual
offender. This point was made by the Labour Appeal Court in
National
Union of Mineworkers obo Selemela v Northam Platinum Ltd
[11]
where Ndlovu JA held that;
“
Indeed,
an employee’s written warnings, even after they have lapsed,
may be taken into account, in determining the fairness
of his or her
dismissal where the employee concerned is found to have a propensity
to commit acts of misconduct at convenient intervals
falling outside
the period of applicability of the written warnings. In Gcwensha v
CCMA and Others ([2006]
3 BLLR 234
(LAC)) this Court stated as
follows:
‘
An
employer is always entitled to take into account the cumulative
effect of these acts of negligence, inefficiency and/or misconduct.
To hold otherwise would be to open an employer to the duty to
continue employing a worker who regularly commits a series of
transgressions
at suitable intervals, falling outside the periods of
applicability of final written warnings. An employee’s duties
include
the careful execution of his work. An employee who
continuously and repeatedly breaches such a duty is not carrying out
his obligations
in terms of his employment contract and can be
dismissed in appropriate circumstances.
’
[12]
And
“
In
other words, even if it were to be accepted that Selemela’s
previous written warning, final or not, had lapsed that fact
should
not have relieved the commissioner from taking the written warning
into account in determining whether or not the dismissal
was
fair…”
[13]
37.4
The complaint that the arbitrator ignored the bad relationship
between Dlamini and Mashinini, and that this had led to a motive
to
dismiss him is mere red herring, and there was no point in the
arbitrator paying any attention to this issue. The fact of the
matter
is that there were allegations that Mashinini had committed
misconduct by exceeding the speed limit, and he had conceded
that
this was the case. Whether there was a bad relationship between him
and Dlamini was irrelevant to the determination of the
fairness of
the dismissal in the light of the inherent improbabilities in
Mashinini’s version.
37.5
The contention that the arbitrator failed to take into account that
the third respondent had inconsistently applied the rules
is equally
without merit. In
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & others
[14]
,
Van Niekerk J, having alluded to the fact that Courts had over the
years recognized a distinction between ‘
historical’
and ‘
contemporaneous’
inconsistency, held that inconsistency claims more particularly
within the context of similarity of circumstances will fail, where
the employer is able to differentiate between employees who committed
similar transgressions on the basis of,
inter
alia
,
differences in personal circumstances, the severity of the misconduct
or on the basis of other material factors
[15]
.
37.6
As correctly pointed out on behalf of the third respondent, a mere
allegation of inconsistency at some stage during the course
of
proceedings is not sufficient to sustain the issue. Where the
employer is alleged to have acted inconsistently either in the
application of the company rules or applicable sanctions in cases of
breach, the employee needs to show in what material respects
inconsistency is claimed. If any inconsistent is shown to exist, it
is thereafter for the employer to justify the differentiation
in the
treatment of the employees. In the absence of evidence to demonstrate
that the employer had acted capriciously or was motivated
by some
irrelevant or unfair considerations in instituting disciplinary
measures or handing out sanction between the two employees,
it would
be concluded that the employer’s decision to differentiate
between employees was fair.
37.7
In
SATAWU
& Others v Ikhwezi Bus Service (Pty) Ltd
[16]
,
the court further made the point that an employer is indeed entitled
to impose different penalties on different employees who
had
committed the same misconduct, provided there was a fair and
objective basis for doing so.
37.8
In this case, the Arbitrator may have not addressed the issue of
inconsistency in the award, but as stated by the SCA in
Herholdt
;
“…
.Material
errors of fact, as well as the weight and relevance to be attached to
particular facts, are not in and of themselves sufficient
for an
award to be set aside, but are only of any consequence if their
effect is to render the outcome unreasonable.”
[17]
37.9
Despite the omission by the Arbitrator, this on its own cannot render
the award reviewable in the light of the totality of
the material
facts before her. The applicants have not laid the basis upon which a
claim of inconsistency can be sustainable. The
issues raised by the
applicants in this regard further pertained to previous warnings
issued to Mashinini for similar transgressions
in the past in
circumstances where such warnings were not warranted. In my view,
this cannot be a basis of inconsistency where
those warnings were
issued, were nevertheless not accepted by Mashinini and most
importantly, were not challenged at any point
prior to the dismissal.
To this end, there is no basis for a conclusion to be reached that
the arbitrator’s failure to have
regard to the issue of
inconsistency rendered her award reviewable.
[38]
In the light of the above conclusions, I am satisfied that the
decision of the Arbitrator is one that another decision-maker
could
reasonably have arrived at based on the evidence before her.
Accordingly, the application to review her award should fail.
I have
further had regard to considerations of law and fairness, and I am of
the view that a cost order is not merited in this
case
.
Order:
i.
The late filing of the third respondent’s
answering affidavit to the review application is condoned.
ii.
The application to review and set aside the
award issued by the second respondent dated 7 February 2011 under
case number RFBC13194
is dismissed.
iii.
There is no order as to costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants: Mr DM Majare of Mabaso Attorneys
On
behalf of the Third Respondent: Mr GM Kirby-Hirst of Macgregor
Erasmus Attorneys
[1]
See
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A);
NUM
v Council for Mineral Technology
(1999) 3 BLLR 209 (LAC);
[2]
See
Moila
v Shai NO and Others
(JA 26/04)
[2007] ZALAC 1
(10 January 2007) at para [34]
[3]
See
Seatlolo
and Others v Entertainment Logistics Service (A Division of Gallo
Africa Ltd)
(2011) 32 ILJ 2206 (LC) at para [10]
[4]
2000
(5) BCLR 465 (CC).
[5]
At
para [3]
[6]
See
Chetty
v Law Society
1985
(2) SA at 765A-C.
[7]
ibid
[8]
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2007]
12 BLLR 1097
(CC)at par [110]:
[9]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para
[20]
. See also
Herholdt
v Nedbank Ltd
2013 (6) SA 224
(SCA) at para [25] where the SCA held that:
“
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in
the
proceedings falls within one of the grounds in s 145(2) (a) of the
LRA. For a defect in the conduct of the proceedings to
amount to a
gross irregularity as contemplated by s 145(2) (a) (ii), the
Commissioner must have misconceived the nature of the
inquiry or
arrived at an unreasonable result. A result will only be
unreasonable if it is one that a reasonable Commissioner
could not
reach on all the material that was before the Commissioner. Material
errors of fact, as well as the weight and relevance
to be attached
to particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only of any
consequence if their
effect is to render the outcome unreasonable”.
[10]
Herholdt
At
para [13]
[11]
(2013)
34 ILJ 3118 (LAC)
[12]
At
para [38]
[13]
At
para [39]
[14]
[2009]
11 BLLR 1128 (LC)
[15]
At
para 10. In reference to
Early
Bird Farms (Pty) Ltd v Mlambo
[1997] 5 BLLR 541
(LAC), where the Labour Appeal Court held that at
545 H-I
[16]
(2009)
30 ILJ 205 (LC)
[17]
At
para [25]