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[2015] ZALCCT 17
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Colpak a division of Columbit (Pty) Ltd v Adams and Others (C 790/2013) [2015] ZALCCT 17 (18 March 2015)
REPUBLIC
OF SOUTH AFRICA
The Labour Court
of South Africa, Cape Town
Judgment
Case
no: C 790/2013
DATE:
18 MARCH 2015
Not
Reportable
Of
interest to other judges
In
the matter between:
COLPAK,
a division of COLUMBIT (PTY)
LTD
..................................................................
Applicant
And
NEVILLE
ADAMS
.......................................................................................................
First
Respondent
COMMISSIONER
BELLA
GOLDMAN
...............................................................
Second
Respondent
THE
STATUTORY COUNCIL FOR THE PRINTING,
NEWSPAPER,
and packaging
industries
.................................................................
Third
Respondent
Heard: 12
March 2015
Delivered: 18
March 2015
Summary: Review
– gross irregularity – misconceiving the nature of the
inquiry.
Judgment
STEENKAMP
J
Introduction
[1]
The applicant (Colpak) dismissed the first
respondent (Adams) after he had been found sleeping on duty and he
had failed to record
that fact on his timesheet. He was given a
written warning for sleeping on duty and dismissed for “fraud –
falsifying
company documents”.
[2]
Adams referred an unfair dismissal dispute
to the Bargaining Council (the third respondent). Commissioner Bella
Goldman (the second
respondent) found that the dismissal was
substantively unfair and ordered Colpak to reinstate Adams
retrospectively. Colpak seeks
to have the award reviewed and set
aside.
[3]
Adams delivered his answering affidavit
more than three months late. He applied for condonation. Colpak
opposes it. I shall deal
with that aspect after having set out the
background facts.
Background
facts
[4]
Adams was a mounting operator. He was on
nightshift on 8 March 2013. During his “lunch break” at
01:00 he went to sleep
on some foam in the back area of the mounting
department. He was woken up by the machine minder and stand-in
foreman, Mr Nicky
Muller, at 02:30. That meant that he had slept for
an hour longer than his allocated break. He did not reflect that fact
on his
timesheet. He was paid for the full shift.
Condonation
[5]
I
will consider the late filing of the employee’s answering
affidavit with reference to the well-known principles set out
in
Melane
v Santam Insurance Co Ltd.
[1]
Extent
of delay
[6]
The answering affidavit was delivered more
than three months outside of the ten day period set out in rule 7A.
It is a substantial
delay.
Explanation
[7]
Adams says that he instructed his erstwhile
attorneys, Simons Van Staden, when he received the applicant’s
supplementary affidavit
in terms of rule 7A(8) on 5 February 2014.
They delivered a “notice of opposition” – but no
answering affidavit,
as required by rule 7A(9) – on 13
February. He was advised – presumably by those attorneys –
that he was required
to deliver his answering affidavit by 19
February. He did not.
[8]
He then says that he contacted Simons Van
Staden “numerous times” to inquire “if they had
opposed the review application”
– a surprising averment
in itself, as they could not have done so without him deposing to an
answering affidavit. But what
is more, he provides no details or
corroborating evidence of these alleged attempts. Be that as it may,
only two months later,
in April 2014, did Adams consult other
attorneys at Edward Nathan Sonnenbergs (ens). He could not afford
their fees and they would
not assist him
pro
bono.
And another month later, on 27
May 2014, he consulted with his current attorneys of record. Only
then did he terminate the mandate
of Simons Van Staden. His current
attorneys delivered the answering affidavit on 6 June 2014.
[9]
While
the court is reluctant to penalise litigants for the dilatoriness of
their representatives, there is a limit beyond which
they cannot hide
behind their attorneys’ negligence or gross ineptitude.
[2]
This is such a case. There is simply no proper explanation for the
inaction of Simon Van Staden from February to May 2014, nor
of the
alleged steps that Adams took to spur them into action.
Prospects
of success
[10]
The lengthy delay and the poor explanation
therefor need to be considered together with the prospects of
success. I do so hereunder.
Given my conclusion on the merits, the
employee’s prospects of success were poor.
Conclusion:
condonation
[11]
The application for condonation for the
late filing of the first respondent’s answering affidavit is
dismissed.
The
arbitration award: grounds of review
[12]
Mr
Bosch
,
for the applicant, abandoned the argument that the commissioner had
exceeded her powers. He argued that the commissioner committed
misconduct and a gross irregularity in the proceedings, as envisaged
by s 145(2)(a)(i) and (ii) of the LRA.
[3]
Evaluation
[13]
I shall consider each of the two grounds of
review.
Gross
irregularity
[14]
Mr
Bosch
submitted that the commissioner
committed a gros
s
irregularity
in that she misconceived the nature of the inquiry or undertook the
inquiry for the wrong reasons.
[15]
Before
I deal with the substance of that argument, it is useful to revisit
the origin of that formulation. It was used by the SCA
in
Herholdt
[4]
and the test for a gross irregularity was recently restated by the
Labour Appeal Court in
Mofokeng
[5]
:
“
[30]
The failure by an arbitrator to apply his or her mind to issues which
are material to the determination of a case will usually
be an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank Ltd
and this court in
Goldfields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome.
[31]
The determination of whether a decision is unreasonable in its result
is an exercise inherently dependant on variable considerations
and
circumstantial factors. A finding of unreasonableness usually implies
that some other ground is present, either latently or
comprising
manifest unlawfulness. Accordingly, the process of judicial review on
grounds of unreasonableness often entails examination
of
inter-related questions of rationality, lawfulness and
proportionality, pertaining to the purpose, basis, reasoning or
effect
of the decision, corresponding to the scrutiny envisioned in
the distinctive review grounds developed casuistically at common law,
now codified and mostly specified in section 6 of the Promotion of
Administrative Justice Act (“PAJA”); such
as
failing to apply the mind, taking into account irrelevant
considerations, ignoring relevant considerations, acting for an
ulterior
purpose, in bad faith, arbitrarily or capriciously etc. The
court must nonetheless still consider whether, apart from the flawed
reasons of or any irregularity by the arbitrator, the result could be
reasonably reached in light of the issues and the evidence.
Moreover, judges of the Labour Court should keep in mind that it is
not only the reasonableness of the outcome which is subject
to
scrutiny. As the SCA held in
Herholdt
, the arbitrator must not
misconceive the inquiry or undertake the inquiry in a misconceived
manner. There must be a fair trial
of the issues.
[32]
However, sight may not be lost of the intention of the legislature to
restrict the scope of review when it enacted section
145 of the LRA,
confining review to “defects” as defined in section
145(2) being misconduct, gross irregularity, exceeding
powers and
improperly obtaining the award. Review is not permissible on the same
grounds that apply under PAJA. Mere errors of
fact or law may not be
enough to vitiate the award. Something more is required. To repeat:
flaws in the reasoning of the arbitrator,
evidenced in the failure to
apply the mind, reliance on irrelevant considerations or the ignoring
of material factors etc. must
be assessed with the purpose of
establishing whether the arbitrator has undertaken the wrong enquiry,
undertaken the enquiry in
the wrong manner or arrived at an
unreasonable result. Lapses in lawfulness, latent or patent
irregularities and instances of dialectical
unreasonableness should
be of such an order (singularly or cumulatively) as to result in a
misconceived inquiry or a decision which
no reasonable decision-maker
could reach on all the material that was before him or her.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the
inquiry. In the final analysis, it will depend on the
materiality
of the error or irregularity and its relation to the
result. Whether the irregularity or error is material must be
assessed and
determined with reference to the distorting effect it
may or may not have had upon the arbitrator’s conception of the
inquiry,
the delimitation of the issues to be determined and the
ultimate outcome. If but for an error or irregularity a different
outcome
would have resulted, it will ex hypothesi be material to the
determination of the dispute. A material error of this order would
point to at least a prima facie unreasonable result. The reviewing
judge must then have regard to the general nature of the decision
in
issue; the range of relevant factors informing the decision; the
nature of the competing interests impacted upon by the decision;
and
then ask whether a reasonable equilibrium has been struck in
accordance with the objects of the LRA. Provided the right question
was asked and answered by the arbitrator, a wrong answer will not
necessarily be unreasonable. By the same token, an irregularity
or
error material to the determination of the dispute may constitute a
misconception of the nature of the enquiry so as to lead
to no fair
trial of the issues, with the result that the award may be set aside
on that ground alone. The arbitrator however must
be shown to have
diverted from the correct path in the conduct of the arbitration and
as a result failed to address the question
raised for determination.”
[16]
In the case that served before the
arbitrator – and now before this Court – the reason why
Colpak dismissed the employee
was because he was alleged to have
falsified documents. The reason was not because he was sleeping on
duty. For that misdemeanour
he was issued with a written warning. The
misconduct that led to his dismissal was viewed in a more serious
light by his employer
because it contained an element of dishonesty.
[17]
Despite this, and despite the fact that the
commissioner initially correctly recorded these facts, the
commissioner embarked on
a separate inquiry whether the employee had
in fact been sleeping on duty; and then she embarked on an inquiry
whether there was
a rule requiring employees to record their lunch
and tea breaks. Simply put, she asked the wrong question and embarked
on the wrong
inquiry.
[18]
It is common cause that the employee slept
on duty. For that he received a written warning. The alleged
misconduct of falsifying
documents arises from his failure to record
that fact in his timesheets. It was not the company’s case that
employees had
to record their lunch and tea breaks. Although the
employee started sleeping during his “lunch break”, he
continued
sleeping for another hour during working time until he was
discovered. He conceded that this was an “abnormal event”
and that abnormal events had to be recorded in their timesheets; yet
the commissioner chose to focus on the red herring of recording
lunch
and tea breaks. In doing so, she committed a reviewable irregularity.
Misconduct
[19]
The
commissioner went further and concluded that the company was in
breach of the Basic Conditions of Employment Act
[6]
.
She did so after making inquiries after the arbitration and without
giving the company an opportunity to lead evidence or to make
submissions. That deprived the company of a fair hearing on that
aspect.
Conclusion:
substitute or remit?
[20]
The award is reviewable. But this is not,
in my view, one where this Court should substitute its decision for
that of the arbitrator.
The irregularities complained of are
procedural in nature. Another arbitrator should address the dispute
afresh and give the parties
a fair trial, and if necessary, give them
the opportunity to address these issues:
20.1
The real reason for dismissal;
20.2
Whether there was a rule to record abnormal
events and whether the employee breached that rule;
20.3
If necessary and relevant, whether there
was a breach of the Basic Conditions of Employment Act.
Costs
[21]
The effect of this order will be that the
dispute has not been brought to finality. The Court cannot foreshadow
the decision of
another arbitrator. The employee was armed with an
arbitration award in his favour that he needed to defend. In law and
fairness,
I do not consider a costs award to be appropriate.
Order
[22]
In the light of the above, I make the
following order:
22.1
The application for condonation for the
late filing of the first respondent’s answering affidavit is
dismissed.
22.2
The arbitration award under case number
WECT 7814-13 dated 2 September 2013 is reviewed and set aside.
22.3
The dispute is remitted to the third
respondent (the Bargaining Council) for a fresh arbitration before a
panellist other than the
second respondent.
22.4
There is no order as to costs.
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Craig Bosch
Instructed by
Bob von Witt.
FIRST
RESPONDENT: Hermione Cronjé
Instructed by
Malcolm Lyons Brivik.
[1]
1962 (3) SA 531 (A).
[2]
Cf
Silplat
(Pty) Ltd v CCMA
(2011)
32
ILJ
1739 (LC) 1753 and cases there cited.
[3]
Labour Relations Act 66 of 1995
.
[4]
Herholdt
v Nedbank Ltd
(2013) 34
ILJ
2795 (SCA) 2801F-2803D; 2806 A-D.
[5]
Head
of the Dept of Education v Mofokeng
[2015] 1 BLLR 50
(LAC) paras 30 ff.
[6]
Act 75 of 1997.