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[2015] ZALCJHB 295
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NUM obo Malapane and Others v CCMA and Others (JR1169/14) [2015] ZALCJHB 295 (10 September 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
C
ase
no: JR 1169/14
In the matter
between:
NUM obo PHILIP
MALAPANE & 2
OTHERS
APPLICANT
and
CCMA
FIRST
RESPONDENT
L SIKWANE
N.O.
SECOND RESPONDENT
WANLI
STONE BELFAST (PTY)
LTD
THIRD RESPONDENT
Heard
:
8 September 2015
Delivered
:
10 September 2015
JUDGMENT
VAN
NIEKERK J
[1]
This is an unopposed application to review
and set aside an arbitration award made by the second respondent, to
whom I shall refer
as the commissioner. In her award, issued on 15
April 2014, the commissioner found that the individual employees on
whose behalf
the applicant union acts were fairly dismissed by the
third respondent.
[2] The applicant seeks to review and set aside the award on the
basis of what it avers to be misconduct on the part of the
commissioner
in relation to her duties as arbitrator. One of the
primary grounds for review is that the commissioner mistakenly made
reference
to that part of the statutory code of practice which
regulates dismissals for poor work performance. There is a more
general averment
to the effect that the commissioner failed to apply
mind to the evidence before her when she concluded, as she did, that
the employees
had committed the misconduct with which they were
charged.
[3] The employees were dismissed after having been found guilty in a
disciplinary hearing of threatening and intimidating colleagues.
The
relevant facts are recorded in the award and I do not intend to
repeat them here. It is sufficient to say for present purposes
that
the employees were dismissed for act of misconduct committed during
the course of a strike in September 2013. The version
put up by the
employees at the arbitration hearing was one of a pure denial –
they disputed that they had engaged in any
act of misconduct and
averred that they had dispersed peacefully after a briefing given by
the shop steward.
[4] The legal principles to be applied are well-established. This
court is entitled to intervene if and only if the decision to
which
the commissioner came was so unreasonable that no reasonable
decision-maker could come to that decision. To the extent that
the
applicant appears to have based its case solely on what it contends
to constitute a gross irregularity in the commissioner’s
conduct of the arbitration proceedings, this is not in itself a basis
for review. The relevant authorities have made clear that
a mistake
of law, the failure to have regard to relevant evidence or having
regard to evidence that is irrelevant, or failing properly
to assess
the probabilities of competing versions are not in themselves a basis
for review. It seemed to me during the course of
argument that the
applicant failed to appreciate the hurdle that confronted it or that
it must necessarily be established that
the outcome of the
proceedings, represented by the commissioner’s award, fails to
meet the reasonableness threshold in the
sense described above.
[5]
This is not the case which is sought to be made out in the papers
before me and for that reason alone, the present application
stands
to be dismissed. Even if I were to afford the founding and
supplementary affidavits a generous reading and regard the case
made
as one that irregularities on the part of the commissioner had the
consequence of a decision that no reasonable decision-maker
could
reach on the available material, I am not persuaded that this is so.
Regardless of any reviewable irregularities that may
have been
committed by the commissioner, the evidence that served before her
clearly establishes, on a balance of probability that
the employees
were guilty of the misconduct with which they were charged. Of some
significance in this regard is the fact that
the employees’
version, as the commissioner found, amounted to a bare denial and
that there was no reason why the witnesses
who testified as to the
employees’ conduct shoud have implicated them falsely. It is
also clear, as the commissioner found,
that the third respondent’s
witnesses gave evidence that was consistent. There was no internal
consistency on the evidence
proffered by the employees, but for the
bare denial to which I have referred. In short, the evidence
disclosed during the course
of the proceedings under review sustains
the reasonableness of the ruling made by the commissioner, i.e. that
the employees’
committed the misconduct with which they were
charged, and that dismissal was an appropriate sanction.
For the above reasons, I make the following order:
1.
The
application is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Mr. L Tshingana, Mothobi Attorneys