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[2015] ZALCJHB 226
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Tsiu v CCMA and Others (JR 895/10) [2015] ZALCJHB 226 (31 July 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 895/10
DATE: 31 JULY 2015
Not Reportable
In the matter between:
STEVEN
TSIU
...........................................................................................................................
Applicant
And
CCMA
............................................................................................................................
First
Respondent
COMMISSIONER T
TSHAYANA
.........................................................................
Second
Respondent
LEONARD DINGLER (PTY)
LTD
..........................................................................
Third
Respondent
Heard: 29 January 2015
Delivered: 31 July 2015
Summary:Review of arbitration award
JUDGMENT
WHITCHER J
Introduction
[1] This is an application in terms of
section 145 of the LRA to review and set aside the arbitration award
dated 1 March 2010 (“the
award”) issued by the second
respondent (“the commissioner”) in which award he
concluded that the dismissal of
the applicant was substantively and
procedurally fair. The third respondent (“the respondent”)
opposed the application.
[2] The essential test in deciding
whether an arbitration award should be reviewed and set aside is the
following: is the award
one that a reasonable decision-maker could
not reach. In respect of the result, both on guilt and sanction, it
is not sufficient
to list the arbitrator’s alleged
misdirections. The applicant must establish that the decision is
incapable of justification
on all the material before the
commissioner. The evidence before the arbitrator must be viewed in
its totality.
[3] In relation to process-related
issues, the unreasonableness of the actions flows from an
established, material failure or irregularity
on the commissioner’s
part and a demonstration that this conduct impacted on the outcome.
For instance where an applicant
argues that the arbitrator failed to
take into account certain evidence, the applicant must demonstrate,
not only that the alleged
facts are relevant, material and proven,
but that the failure to take the evidence into account turned the
case on its head.
[4] Commissioners enjoy a certain
latitude of discretion flowing from section 138 of the LRA to decide
how to conduct arbitrations.
Among others, it is a function of theirs
to attempt to ‘move things along’. A fair outcome must be
achieved speedily
and with the minimum of legal formalities. A
reviewing court must therefore allow certain essentially
discretionary powers and
functions of commissioners, especially as to
the conduct of the hearing, to be exercised and recognise that, in
some instances,
what might constitute a legal irregularity in a court
is but a legalistic quibble in the CCMA.
[5] As expressed in Sidumo, decisions
as to fairness are primarily in the domain of the commissioner. The
creation of this domain
is part of the legislative intent identified
in Sidumo, the use of which means that decisions by different
commissioners may lead
to different results without this court
necessarily being able to interfere.
[6] The applicant complained that Mr
Gumede, the respondent’s representative (the HR manager),
discussed another matter with
the commissioner after the arbitration
adjourned and while packing up. While such interaction is not ideal,
the applicant failed
to demonstrate how this conduct could give rise
to a reasonable suspicion of bias. The respondent pointed out that
subsequent to
this event the applicant applied for the recusal of the
commissioner but this event did not form the basis of the
application.
If the applicant was so aggrieved by this event, he
would have raised it in the recusal application so that the
commissioner could
have addressed this allegation of bias.
[7] The applicant criticised the
commissioner for allowing a company witness to produce a document
that was not in the bundle before
the commissioner. The respondent
demonstrated, with reference to the record, that this did not occur
in circumstances which deprived
the applicant of a fair hearing.
[8] The applicant’s
representative questioned the respondent’s witness, Mr Masiki,
who was the production supervisor,
about whether the applicant was
given an opportunity to appeal against his dismissal. When the
witness stated that the applicant
was given an opportunity to appeal,
the applicant’s representative demanded that Masiki prove this.
In response Masiki produced
a document that was not in the bundle
before the commissioner. The applicant’s representative asked
for and was given an
opportunity to peruse the document and to
question Masiki on the document.
[9] The applicant alleged that the
commissioner angrily disallowed the applicant’s representative
from cross-examining Masiki
on procedural fairness.
[10] The record however shows that the
representative did in fact cross examine Masiki on procedural
fairness and moreover that
his cross- examination of Masiki was
repetitive and primarily consisted of questions which Masiki was
obviously not in a position
to answer as he was not the chairperson
of the disciplinary hearing. When the commissioner pointed this out
to the applicant’s
representative, the commissioner acted as a
reasonable commissioner would have in the circumstances. As
indicated earlier on,
litigants are entitled to a fair hearing but
commissioners enjoy a certain latitude of discretion flowing from
section 138 of the
LRA to decide how to conduct arbitrations. Among
others, it is a function of theirs to attempt to ‘move things
along’.
A fair outcome must be achieved speedily and with the
minimum of legal formalities.
[11] The applicant complained that the
commissioner assisted certain witnesses but the record indicates that
the commissioner had
merely attempted to seek clarity from the
witnesses.
[12] The applicant criticised the
commissioner for permitting the respondent’s representative to
ask leading questions. The
applicant however failed to allege and
indicate that this was in relation to material facts in dispute and
that this impacted on
the totality of the evidence of these witnesses
and the other material evidence before the commissioner.
[13] In summary, the applicant failed
to demonstrate that it was not given a fair hearing on material and
relevant issues.
[14] The applicant submitted a list of
evidence and alleged the commissioner ignored such evidence. The
applicant failed to demonstrate,
with reference to the record, that
these factual allegations were proved, material and relevant and
affected the outcome.
[15] The respondent, on the other hand,
established that the material proven facts before the commissioner
were that the applicant
deliberately and repeatedly refused to obey a
lawful and reasonable instruction and prevented another employee from
performing
his job. The respondent further demonstrated, with
reference to the record, that there was no merit to the applicant’s
excuses
and explanations for this conduct and that it had tried to
resolve the matter with the applicant and had tried to accommodate
the
applicant’s complaints. All these factors informed the
final decision of the commissioner.
[16] The applicant alleges that other
employees had committed similar offences but were not dismissed and
accordingly the commissioner
ought to have found his dismissal unfair
on this ground. Other than allegations, I found no relevant evidence
on record from the
applicant which establish that there were no
material distinguishing factors in his case and the other cases in
question. In any
event, even if there were no material distinguishing
factors, an employer is not required in the name of consistency to
repeat
a previous decision made in error or one which is patently
wrong.
[17] The applicant contended that in
assessing whether the sanction of dismissal was fair, the
commissioner ignored the applicant’s
length of service. The
commissioner does not mention the applicant’s length of service
in his assessment of the fairness
of the sanction, so he gave it very
little or no weight at all. Even if the commissioner ignored the
applicant’s length of
service and his conduct constitutes an
error of fact, this ground of review is dismissable on the basis that
the applicant has
failed to demonstrate that this error had a
material effect on the outcome.
[18] Moreover, before the award can be
set aside on review the reviewing judge has to find that the
arbitrator’s assessment
that the employer did indeed act fairly
in imposing the sanction of dismissal is a finding to which no
reasonable arbitrator could
have arrived at on the material before
him or her. In my view a reasonable decision-maker could reasonably
have arrived at the
same conclusion that the commissioner arrived at
having regard to the following material on record: the deliberate
nature of the
offence, the fact that the respondent tried to resolve
the matter with the applicant and accommodate him, the reason for the
instruction,
the mendacious defence of the applicant and the absence
of any evidence of remorse or an inclination by the applicant to
concede
the reasonableness of the instruction at any stage.
[19] The applicant argued that the
commissioner should have found that the dismissal was procedurally
unfair. Their main issue appears
to concern an allegation that the
applicant was not given a proper appeal hearing. According to the
evidence on record, the applicant
was given an opportunity to
exercise this right.
[20] In summary, the applicant failed
to demonstrate that the conduct of the commissioner deprived him of a
fair hearing on material
and relevant issues. In respect of the
alleged errors of fact, the applicant failed to demonstrate that they
were errors of fact.
Even if they were errors of fact, the applicant
failed to demonstrate that they were material errors of fact which
impacted on
the outcome.
Order
[18] The application is dismissed with
no order as to costs.
Whitcher J
Judge of the Labour Court of South
Africa
APPEARANCES
FOR THE APPLICANT: Mr R K Mashego
FOR THE RESPONDENT: Samantha Coetzer
Instructed by: Bowman Gilfillan