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[2015] ZALCJHB 248
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Mathye v Commission for Conciliation Mediation And Arbitration and Others (JR25/2013) [2015] ZALCJHB 248 (7 August 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no. JR 25/2013
In
the matter between:
S
MATHYE
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
I NYATHELA
N.O.
Second Respondent
MEROPA
LEISURE AND ENTERTAINMENT WORLD
Third Respondent
Heard:
11
July 2014
Delivered:
7 August 2015
Summary:
Review Application – grounds of misconduct and gross
irregularities – allegations unfounded
on the evidence record
of arbitration proceedings –
test
on review considered and applied – review application
dismissed.
JUDGMENT
WOODHOUSE
AJ
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act, No 66 of 1995 (“the LRA”).
Background
[2]
The Third Respondent (“The employer) operates a Casino and
Entertainment Centre in Polokwane, Limpopo Province.
[3]
The Applicant (“Mathye”) was employed by the employer in
December 2004 as a Count Assistant.
[4]
Mathye was dismissed on grounds of medical incapacity on or about 17
November 2009.
[5]
Mathye was absent from work over the period 15 November 2007 to 17
November 2009.
[6]
According to the medical records tendered as evidence at the
arbitration proceedings, Mathye was effectively booked off for
health
reasons from 15 November 2007.
[7]
The employer kept extending Mathye’s sick leave to accommodate
her.
[8]
At a point, Mathye was placed on unpaid leave in April 2008. She had
exceeded all and any leave due to her.
[9]
Mathye was sent to the employer’s medical practitioner as well
as other Institutions for treatment over this period.
[10]
It was apparent from the medical information that Mathye’s ill
health had nothing to do with her working conditions.
[11]
On or about 30 March 2009, Mathye appeared to have attempted to
resign.
[12]
The employer attempted to obtain disability benefits for Mathye.
These attempts proved unsuccessful due to the nature of Mathye’s
medical condition.
[13]
On 1 September 2009, the employer commenced incapacity consultations
with Mathye. The First consultation took place at the
employer’s
premises. It was apparent at this consultation that Mathye was in
pain.
[14]
Light duty was suggested, but Mathye was not in a position to even
undertake light duty work.
[15]
On 16 September 2009, a further consultation took place with Mathye.
This meeting took place at Mathye’s home.
[16]
During this meeting, it was discussed with Mathye how the employer
would resubmit her claim to get disability to its insurers,
Metropolitan Life. An assessment was also done of whether she would
be able to work. She was requested to get a second opinion
regarding
her medical condition.
[17]
A third session was held on 16 October 2009 at Mathye’s
residence. At this meeting, a variety of issues were discussed
including Mathye going for the surgery suggested by the medical
practitioners and attempting to get disability benefits from
Metropolitan
Life. It was also clear that Mathye was not in a
position to work due to her condition.
[18]
Mathye’s situation did not improve. On 14 November 2009, she
was issued with a notification of a hearing.
[19]
The hearing was held on 17 November 2009.
[20]
At the conclusion of the hearing, the employer decided to terminate
Mathye’s services based on her medical incapacity.
[21]
Mathye, on her own version, had only been able to resume work at some
stage in 2012.
[22]
Mathye alleged that the employer’s doctor had abused her and
that she had become ill due to an alleged employment policy
that
prohibited her from drinking water and going to the toilet. This was
disputed. She never lodged any grievances regarding this
conduct.
[23]
The Second Respondent (“the Commissioner”) found that
Mathye’s dismissal was both procedurally and substantively
fair.
Mathye’s
version on review
[24]
Mathye has, in her review application, effectively recited her
version at the arbitration proceedings. She challenges the
Commissioner’s award on the basis that the Commissioner:
24.1
attempted to force her to settle;
24.2
refused her the opportunity to call her key witness,
namely her
mother;
24.3
precluded her from raising the issue of discrimination;
24.4
refused to deal with a payment issue on the basis that she lacked
jurisdiction to do so; and
24.5
allowed the Company’s witness who testified at the arbitration
to sit in the arbitration.
The
test on review
[25]
Arbitration awards issued by Commissioners of the CCMA are reviewable
in terms of,
inter alia
, section 145 of the LRA on any of the
specific grounds set out therein.
[26]
The test to be applied by this Court in deciding whether an
arbitration award is reviewable has been settled by the
Constitutional
Court.
[1]
The
test now on review is based on the constitutional standard of
reasonableness, which, as the Constitutional Court held in
Sidumo,
now suffuses the grounds of review set out in section 145 of the LRA.
[27]
Since
Sidumo
,
the jurisprudence emanating from not only the Labour Court but also
the Labour Appeal Court has developed quite substantially.
[2]
These jurisprudential developments have been pushing the boundaries
of the test on review and have culminated in two recent judgments,
one in the Supreme Court of Appeal (“SCA”) and one in the
Labour Appeal Court (“LAC”).
[3]
The current case, however, relates, in essence, to Mathye’s
challenge against the outcome arrived at by the Commissioner.
In
essence, it is a challenge on the basis of “
substantive
unreasonableness
”
as referred to by the LAC in
Herholdt
.
Substantive unreasonableness, it was said, relates to the finding in
Sidumo
namely “
Is
the decision reached by the Commissioner one that a reasonable
decision-maker could not reach?”
[4]
[28]
The SCA in
Herholdt
also stated that “
an
error of fact or law by the arbitrator would not justify the setting
aside of the award, unless it had the result that the arbitrator
was
diverted from the correct path in the conduct of the arbitration and
as a result failed to address the question raised for
determination
in the arbitration.”
[5]
[29]
The LAC, at paragraph 15 of its Judgment in
Gold Fields,
stated the following:
‘
What
is required is first to consider the gross irregularity that the
arbitrator is said to have committed and then to apply the
reasonable
test established by Sidumo. The gross irregularity is not a
self-standing ground insulated from or standing independent
of the
Sidumo test.’
In the
circumstances, the LAC seems to have found that although a failure to
consider certain material facts constitutes a gross
irregularity, an
applicant on review cannot solely rely on that, but must establish
that the arbitrator’s conduct in so doing
rendered the result
of the arbitration unreasonable.’
[30]
In light of the above, can it be said of the Commissioner’s
award in this matter that it is one that a reasonable decision-maker
could have made when considering the totality of the evidence before
her?
[31]
In the
Gold
Fields
case, the LAC was considering a review application in which the
Commissioner found the employee concerned guilty of poor performance
and not misconduct. The Commissioner found that dismissal was not the
appropriate sanction. The LAC then went on to find that the
Commissioner’s award was reviewable because the Commissioner
had “
misconceived
the nature of the enquiry, which was to determine the fairness of a
dismissal for misconduct.”
[6]
The
LAC stated further that the Commissioner had committed a gross
irregularity in the conduct of the proceedings by considering
the
dismissal of the employee concerned as one arising out of poor
performance as opposed to misconduct. Importantly, what the
LAC also
went on to state was that in these circumstances, “
the
question needs to be asked: had the categorisation of the case
against [the employee] been misconduct as opposed to poor work
performance, is the arbitrator’s award nonetheless one that
could be arrived at by a reasonable decision-maker? In my view
it is
clearly not.”
[7]
Findings
[32]
I have examined Mathye’s grounds of review in relation to the
evidence led at the arbitration. I find that:
32.1
there is no evidence to substantiate Mathye’s claims that –
32.1.1
she was precluded from calling her mother as a witness. In fact, in
an affidavit filed by the
Commissioner, she clarifies this issue.
Mathye called her uncle to testify. The Commissioner’s
explanation for why it was
not necessary for Mathye’s mother to
testify is completely plausible and rational;
32.1.2
the Commissioner refused to entertain the issue of discrimination. It
is clear from the transcript
of the arbitration proceedings that
Mathye agreed not to pursue the issue of discrimination;
[8]
32.1.3
the Commissioner’s finding that she lacked jurisdiction
regarding certain payment issues
was correct and is unassailable;
32.1.4
The Commissioner has explained the issue of settlement. There is no
evidence to substantiate
Mathye’s allegation that she was
forced by the Commissioner into settling the matter. The matter was
clearly not settled
as it proceeded to arbitration;
32.1.5
the allegation of an irregularity arising out of the employer’s
witness being allowed
to sit in on the arbitration proceedings after
he had testified is also ill-conceived. This is not irregular. He had
completed
his testimony and, thus, entitled to sit in on the
proceedings.
32.2
It is clear from the Commissioner’s reasoning that she properly
considered
the evidence that was led before her by both Mathye and
the employer.
32.3
Mathye has not made out a case whatsoever in terms of the applicable
principles
as espoused in the Judgments referred to above for the
Commissioner’s award to be reviewed and set aside.
[33]
In the circumstances, I make the following order:
33.1
the Application for the review and setting aside of the arbitration
award of
the second Respondent issued on 29 November 2015 under case
number LP6114-12 is dismissed; and
33.2
there is no order as to costs.
_____________________
David
Woodhouse AJ
Acting
Judge of the Labour Court
Appearances
:
For
the Applicant: In person
For
the Respondent: Adv. M.H. Marcus
Instructed
by Salijee du Plessis van der Merwe Inc.
[1]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) (
Sidumo
).
[2]
See:
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
[2009] 11 BLLR 1128
(LC) and
Herholdt
v Nedbank Ltd
[2012] 9 BLLR 857 (LAC).
[3]
See:
Herholdt
v Nedbank Limited
(2013) 34
ILJ
2795 (SCA) and
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others
[2014] 1 BLLR 20 (LAC).
[4]
At
para 110.
[5]
At
para 19.
[6]
At
para 22.
[7]
At
para 31.
[8]
Page
280 of the record.