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[2015] ZALCPE 58
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Bengxesha v General Public Service Sectoral Bargaining Council and Others (P552/11) [2015] ZALCPE 58 (13 November 2015)
OF
SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P 552/11
In
the matter between
NOMALINDE
GLORIA BENGXESHA
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
PI
DHLODHLO
Second Respondent
DEPARTMENT
OF HOME
AFFAIRS
Third Respondent
Heard:
19 March 2015
Delivered:
13 November 2015
Summary:
An arbitration award will not be reviewed and set aside based on the
arbitrator’s errors
which have no effect on the reasonableness
of the award.
JUDGMENT
LALLIE
J
Introduction
[1]
In this application, the applicant seeks an order reviewing and
setting aside an arbitration award of the second respondent
(“the
arbitrator”). It is opposed by the third respondent. In the
award, the arbitrator found the applicant’s
dismissal both
substantively and procedurally fair.
Material
facts
[2]
The applicant was employed by the third respondent on 1 July 1988.
She was dismissed on 26 August 2009 for making fraudulent
entries in
the national population register between 1 June 2007 and 30 June
2008. On dismissal, she was a senior administration
officer at the
Libode office of the third respondent. She challenged the fairness of
her dismissal at the first respondent where
on 30 June 2011, the
arbitrator issued the award which the applicant seeks this Court to
review and set aside. This review application
was filed outside the
six weeks statutory period. The record of the arbitration proceedings
and the replying affidavit were also
filed late. Condonation for the
lateness was sought. The condonation applications were not opposed. I
have considered them and
could find no reason to decline them as the
applicant showed good cause.
[3]
In the arbitration award the arbitrator noted evidence on behalf of
the third respondent to the effect that there was a standard
procedure which had to be followed when birth was registered in the
population register. It required that a mother’s identity
number, the clinic card and application forms be submitted at the
office of the third respondent. The father’s identity number
would be included in the form when he acknowledged paternity and when
the child’s parents were married. The information is
captured
on the computer by officers of the third respondent who use secret
passwords which they had to change after every six
months for
security reasons. Birth registration documents are kept in the third
respondent’s offices. During the period 1
June 2007 and 30 June
2008, 2000 children were registered irregularly. The applicant’s
password was used for the registration.
The irregularities included
use of the mother’s identity number only. Births were
registered on the same day with mothers
of different children having
the same date of birth. On 4 June 2007, 18 such births were
registered, 4 were registered on 5 June
2007, 9 on 6 June 2007 and 53
on 2 July 2007. On 1 June 2007 and 27 August 2007, 1981 October 10
was used as a mother’s date
of birth to register the birth of
346 children. On 4 October 2007, identity numbers of 2 mothers were
used to register the birth
of 101 children. When the birth of twins
born on 4 April 2000 was registered, each twin had a mother with a
different date of birth.
The registration of some siblings reflects
that their registration is fraudulent in that the period between
their births is not
probable. By way of example, in one family one
child was born two months after the other. In another family the
second child was
born three months after the first and the fourth,
two months after the third. Twins were registered as having been born
21 days
apart. The third respondent’s records therefore reflect
that all these births were registered by the applicant.
[4]
The applicant denied having registered births fraudulently. Her
evidence was that the Libode district office was small and without
proper infrastructure. Any official could capture births on the
computer system using her username if she had not logged off. She
denied having signed a declaration to keep her username confidential.
She, however, testified that she did not disclose it to her
fellow
employees. She maintained that in instances where a mother did not
have a valid identity document, her date of birth could
be used to
register the birth of her children. She denied that a form had to be
approved by her in her capacity as the supervisor
before birth
registration was captured. She explained that a possibility existed
that it was used when she left the computer unattended
without
logging off. She used the biometric system which required her to log
on the computer system using her fingerprint. The
arbitrator also
considered the evidence given by her witness who had joined the
Libode office in May 2008.
[5]
Giving reasons for her decision, the arbitrator noted that the third
respondent had the onus to prove the fairness of the dismissal.
She
accepted the third respondent’s version that the applicant’s
password was used for the fraudulent birth registrations
whose
supporting documents could not be traced. She rejected the
applicant’s version that the system used for birth registration
was unreliable. She found it highly improbable that more than 2000
births registered irregularly by the applicant would disappear
and
not be sent, in terms of the standard procedure, by courier to Head
Office. She further rejected the applicant’s explanation
that
other officials might have used her password when she did not log off
on the basis that she had a duty to protect it. She
found that she
had failed to prove her defence. He found that the applicant breached
a rule of conduct knowing that it fetched
the sanction of dismissal
and concluded that her dismissal was substantively and procedurally
fair.
Grounds
for review
[6]
The applicant submitted that the arbitration award stands to be
reviewed and set aside because the arbitrator was biased. She
committed a gross irregularity by her failure to consider all the
evidence and arguments before her and to apply her mind to the
facts
of the case and the applicable law. She failed to consider and assess
the evidence before her fairly and preferred circumstantial
evidence
led on behalf of the third respondent over the clear position of how
the computer system worked which was presented on
her behalf. Her
conclusion that the respondent proved its case on a balance of
probabilities was unreasonable and unjustified.
She committed a
further irregularity by disregarding closing arguments and
authorities cited in them.
[7]
The test to be applied in determining review applications is whether
the decision reached by the arbitrator is reasonable. An
award
becomes reviewable if it constitutes a decision which a reasonable
decision-maker could not reach on the information before
the
arbitrator. In this regard see
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
I
n
her papers and argument the applicant sought to rely on a number of
errors made by the arbitrator in the conduct of the arbitration.
The
correct approach in determining the reasonableness of an arbitration
award is stated as follows in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2]
:
‘
[18] In a
review conducted under section 145(2)(a)(c)(ii) of the LRA, the
review court is not required to take into account every
factor
individually, consider how the arbitrator treated and dealt with each
of those factors and then determine whether a failure
by the
arbitrator to deal with one or some of the factors amounts to a
process -related irregularity sufficient to set aside an
award. This
piecemeal approach of dealing with the arbitrator’s award is
improper as the reviewing court must necessarily
consider the
totality of the evidence and then decide whether the decision made by
the arbitrator is one that a reasonable decision-maker
could make’.
[8]
The applicant adopted a piecemeal approach and sought to rely on
every error she perceived the arbitrator to have made. Her
review
application appears to be an appeal dressed as a review. Her approach
is impermissible. Not every error made by an arbitrator
renders an
award reviewable. Dealing with the issue of errors made by
arbitrators in the conduct of arbitrations the court in
Herholdt
v Nedbank Ltd
[3]
held
thus:
‘
[25] In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in section 145 (2) (a) of
the LRA. For a defect in the conduct of the proceedings
to amount to
a gross irregularity as contemplated by section 145(2) (a)(ii), the
arbitrator must have misconceived the nature of
the inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator
could not reach on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance
to be attached to particular facts,
are not in and of themselves sufficient for the award to be set
aside, but are only of any
consequence if their effect is to render
the outcome unreasonable’.
[9]
The totality of the evidence before the arbitrator shows that she
considered the principal issue before her and evaluate the
facts
presented at the arbitration. She gave reasons for accepting the
third respondent’s version and rejecting the one presented
by
the applicant. She gave reasons for finding that the third respondent
had discharged the onus of proving the fairness of the
applicant’s
dismissal. The applicant’s argument that the respondent failed
to prove that the applicant acted fraudulently
is based on her
piecemeal approach because when the award is read in its entirety the
arbitrator’s decision and reasons thereof
are undoubted. She
cannot be faulted for rejecting the applicant’s version that
between 1 June 2007 and 30 June 2008, 2000
births were registered by
the applicant’s colleagues using her password which she had not
disclosed to them. The applicant
did not establish that the error she
sought to rely on led the arbitrator to reach an unreasonable
decision. The arbitrator did
not misconceive the nature of the
enquiry before her. Her decision based on the evidence before her
falls within bounds of reasonableness.
[10]
The third respondent sought a costs order against the applicant. I am
not convinced that the order should be granted because
the applicant
did not act unreasonably in bringing this application.
[11]
In the premises, the following order is made:
11.1
The late filing of the review application is condoned.
11.2
The late filing of the arbitration record is condoned.
11.3
The late filing of the replying affidavit condoned.
11.4
The application for review is dismissed.
__________________________________
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Advocate Grobler
Instructed
by:
Brown, Braude & Vlok Inc Attorneys
For
the Respondent:
Advocate Gqamana SC
Instructed
by:
The State Attorney
[1]
2008 (2) SA (CC).
[2]
[2014] 1 BLLR 20
(LAC).
[3]
[2013] 11 BLLR
1074
(SCA).