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[2015] ZALCPE 17
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Xhotyeni v South African Local Government Bargaining Council and Others (P 667/10) [2015] ZALCPE 17 (24 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
CASE
NO: P 667/10
DATE:
24 FEBRUARY 2015
Not
Reportable
In
the matter between:
FIKILE
DAVID
XHOTYENI
..................................................................................................
Applicant
And
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
..........................................................................................
First
Respondent
NTOMBEKHAYA
SESANI
N.O
.............................................................................
Second
Respondent
BUFFALO
CITY
MUNICIPALITY
..........................................................................
Third
Respondent
Heard:
20 February 2014
Delivered:
24 February 2015
Summary:
Errors made by arbitrators do not necessarily render their awards
susceptible to review when they have no effect on the
reasonableness
of those awards.
JUDGMENT
LALLIE J
Introduction
[1]
In this application the applicant seeks an order reviewing and
setting aside the arbitration award of the second respondent
(“the
arbitrator”) in which she found the applicant’s dismissal
both reasonable and fair and upheld the third
respondent’s
decision to dismiss him. The review application and the answering
affidavit were filed late and condonation
for the delay was sought.
Both parties indicated that they were not opposing each other’s
condonation applications. I however,
considered both applications and
I am satisfied that in both, good cause has been shown and granted
them. The applicant withdrew
the point in
limine
which he
initially raised challenging the
locus standi
of the deponent
to the third respondent’s opposing affidavit.
Factual
background
[2]
The applicant was employed by the third respondent as transport
coordinator. He was spotted by members of the Buffalo City
Municipality (“BCM”) leaving the Cambridge solid waste
area in a van on which five 25 litre containers filled with diesel
which had been dispensed from the fuel tank on site were loaded. He
was travelling with a fellow employee. He drove to his house
where
his fellow employee off loaded the diesel. The members of BCM who
followed him found diesel in three 25 litre containers
in his garage.
When he could not give a reasonable explanation for being in
possession of the diesel which was the property of
the third
respondent, he was arrested. He was subsequently subjected to a
disciplinary enquiry for theft of 125 litres of the third
respondent’s diesel. Having been found guilty of the
misconduct, he was dismissed. He referred an unfair dismissal dispute
to the fifth respondent where the arbitrator took the decision which
is the subject matter of this application.
The arbitration
award
[3]
The Commissioner found it common cause that 125 litres of diesel
which was the property of the third respondent was found in
the
applicant’s house. She accepted the unchallenged evidence of Mr
Mtshengu (“Mtshengu”) who was with the applicant
when the
diesel was discovered that he dispensed and off loaded it on the
instructions of the applicant. She consequently accepted
that the
third respondent was justified in not taking disciplinary action
against Mtshengu for his role in the matter. She also
rejected the
applicant’s submission that Mtshengu was part of a conspiracy
to dismiss him as the conspiracy theory was not
put to Mtshengu. The
applicant did not have the requisition document to be in possession
of the diesel. She accepted the third
respondent’s vision that
the applicant said that he was going to write out the requisition.
She rejected the applicant’s
testimony that the requisition was
with Mr Gqizana (“Gqizana”) as Gqizana could not have
left with the requisition
which he was not going to use after
requesting the applicant to make arrangements for him to get fuel.
She added that had the applicant’s
version been true, he would
have told the BCM police that Gqizana had the requisition which
justified his possession of the diesel.
The Commissioner found the
applicant’s dismissal procedurally fair as she was satisfied
that the consultation the applicant
sought to rely on had nothing to
with other people or the third respondent’s management. The
initiator’s omission to
present aggravating circumstances did
not change the nature of the serious charges which had been levelled
against the applicant.
She found that any chairperson would have
recommended dismissal. The Commissioner’s conclusion was that
the applicant’s
dismissal was reasonable and fair.
Grounds
for review
[4]
The applicant sought to rely on more than ten grounds of review. He
submitted that the award stands to be reviewed and
set aside as
the arbitrator committed misconduct in the discharge of his functions
or she committed irregularities which are reflected
in her findings
of fact and conclusions of law. Those irregularities include the
arbitrator’s disregard of relevant and material
evidence and
abrogating the fundamental responsibility of assessing the totality
of the evidence before her in a fair and balanced
manner. She
consequently denied the applicant the right to a fair hearing. Her
decision that the applicant’s dismissal was
fair is not
supported by the evidence before her. She wrongfully rejected the
applicant’s version. She erred in finding the
applicant guilty
of the misconduct which led to his dismissal and made a gross mistake
of law and misconstrued the evidence before
her. The applicant
attacked the award also on the basis that the arbitrator failed to
lend a helping hand to his inexperienced
representative and himself
when it was clear that they were in need of her assistant. She failed
to apprize him of his rights including
his right to documents he
sought to rely on which were in the third respondent’s
possession. She also violated his right
to cross examination by
insisting that it be exercised through his representative only.
[5]
The applicant’s submissions were opposed by the third
respondent on the basis that when the test for review is considered
the applicant established no basis for the award to be reviewed and
set aside.
[6]
A reading of the record does not support the applicant’s
allegation that his colleague who represented him was inexperienced
and lacked the capacity to present his case. His representative
stepped in after the shop steward who had represented the applicant
earlier was suspended. Neither the applicant nor his representative
informed the commissioner that the latter lacked the necessary
ability. The alleged limited ability of the applicant’s
representative is not apparent from the record so are its
consequences.
Amongst the applicant’s main grounds for review
is the arbitrator’s failure to exercise the power bestowed on
her when
conducting arbitrations. That obligation is summarised as
follows:
‘
A
review court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated the facts presented
at the
hearing and came to a conclusion that is reasonable…’
[1]
The
court further held that the piecemeal approach in dealing with awards
is improper. The totality of the evidence has to be considered
and
thereafter a decision taken whether the decision made by the
arbitrator is one that a reasonable decision-maker could make.
Another finding of
Goldfields
[2]
which I find apposite is that the argument that failure to have
regard to material facts must actually defeat the constitutional
imperative that the award must be rational and reasonable for it to
render an award reviewable. The applicant failed to demonstrate
how
the errors made by the arbitrator and her alleged failure to take
into account certain parts of the evidence made her award
susceptible
to review. Nothing turns on the arbitrator’s insistence that
the applicant exercise his right to cross-examine
witnesses through
his representative. It is an acceptable part of ensuring that the
arbitration is conducted in an orderly manner.
[7]
The court made it abundantly clear in
Fidelity
Cash Management Service v CCMA and Others
[3]
that the test for review is a stringent test which will ensure that
arbitration awards are not lightly interfered with. It further
reminded the review court that the task of determining the fairness
or otherwise of dismissal has been bestowed to the CCMA by
legislation. The question whether the review court would have reached
a decision different from the arbitrator’s is irrelevant
in
determining the reasonableness of an award.
[8]
I have considered the submissions made on behalf of both parties and
the authority that both counsel sought to rely on. An assessment
of
the evidence before the arbitrator when viewed in its totality
reflects that she considered the principal issue before her which
was
the fairness of the applicant’s dismissal. She evaluated the
facts before her, identified the mutually exclusive versions
presented by the parties and gave reasons for preferring the one
presented by the third respondent over the applicant’s.
She
also dealt with the inherent probabilities of the case and eventually
arrived at a decision which a reasonable decision-maker
could make on
the evidence before her.
[9]
In the premises, the following order is made:
9.1
The application for review is dismissed.
Lallie J
Judge of the
Labour Court of South Africa
APPEARANCES
For
the Applicant: Advocate Booi
Instructed
by: Siwisa Attorneys
For
the Third Respondent: Advocate Le Roux
Instructed
by: Smith Tabata Incorporated
[1]
Goldfields
Mining SA (Pty)Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at paragraph 16
[2]
Supra
[3]
[2008]
3 BLLR 197
(LAC); also (2008) 29
ILJ
964 (LAC).