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[2015] ZALCD 58
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Department of Health v HOSPERSA obo Ince and Others (D549/13) [2015] ZALCD 58 (24 September 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
C
ase
no: D549/13
In the matter between:
DEPARTMENT OF HEALTH
APPLICANT
and
HOSPERSA OBO SHIREEN
INCE
FIRST RESPONDENT
PHSSBC
SECOND RESPONDENT
PATRICK STILLWELL
N.O.
THIRD RESPONDENT
Heard
:
28 May 2015
Delivered
:
24 September 2015
JUDGMENT
WHITCHER
J
[1]
The Applicant seeks to review and set aside an arbitration award in
which the third respondent (‘the arbitrator”)
found that
the dismissal of the employee, Mrs Ince, was substantively unfair and
ordered her reinstatement.
[2]
The award was issued on 21 May 2013. On 29 May 2013 the Applicant’s
attorney informed the employee that he has received
instructions to
file to review the award, but the review application was only filed
on 14 August 2013, more than one month late.
The record was also
filed and served late, in August 2014, that is, 10 months late. The
Applicant made application for the condonation
of the late filing of
the review but not for the late filing of the record. I am not
persuaded that the Applicant has provided
a good explanation for the
delays and in this regard, it will be required to establish excellent
prospects of success in its review
application.
[3]
In 1987 the employee became employed by the Applicant’s
predecessor. In November 1987 the employee was placed in a post
in
the Central Provincial Stores (her workplace at time of her
dismissal). On 17 June 2011, the employee was dismissed.
[4]
The employee was found guilty of and dismissed for five charges of
misconduct relating to procedures and approval in respect
of
write-offs of stock losses and discrepancies. In light of the limited
grounds of review, there is no need to set out the extensive
details
of these charges.
[5]
The arbitrator found that the employee had contravened the rule.
However he found that the employee was not aware of the rules
or
procedures that she had to follow and could not have reasonably been
expected to know same. As a consequence of this, he found
that the
dismissal was substantively unfair.
[6]
The grounds of review relate to the reasoning of the arbitrator and
how he assessed the evidence and conflicting versions.
[7]
The threshold for review is fairly well-established. Section 145
permits the review of an arbitration award, amongst other grounds,
where the arbitrator commits a gross irregularity. This extends to
latent gross irregularities or, put another way, instances where
an
arbitrator fails to apply him or herself to the available evidence,
makes defect of factual findings and the like. In these
instances, a
party seeking to set aside an award or ruling must establish both the
irregularity or defect relied on and that
the
Sidumo
threshold is met.
In Gold Fields Mining SA (Pty) Ltd (Kloof Gold
Mine) v CCMA & others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC), the Labour
Appeal Court noted that it is not sufficient for an award to be set
aside simply to establish a gross irregularity
in the conduct of the
arbitration proceedings; in the event that a gross irregularity in
the conduct of the proceedings is established,
it is incumbent on an
applicant to establish that the result was unreasonable or ‘put
another way, whether the decision that
the arbitrator arrived at is
one that falls outside the band of decisions to which a reasonable
decision-maker could come on the
available material’. In other
words, the review court must consider whether despite the
arbitrator’s reasoning, the
result is nevertheless capable of
justification on the available material.
[8]
Precisely how this determination to be made was the subject of recent
guidance provided by the Labour Appeal Court. In head
of the
Department of Education v Mofokeng &
others
[2015] 1 BLLR 50
(LAC), Murphy AJA
said the following:
‘
The
determination of whether a decision is unreasonable in its result is
an exercise inherently dependent 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 interrelated
questions of rationality, lawfulness and proportionality, pertaining
to the purpose, basis, reasoning or effect
of the decision,
corresponding to the scrutiny envisaged in the distinctive review
grounds developed 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 with 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 (at
paragraph 31).
Further:
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 enquiry. 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 on the
arbitrator’s conception of the enquiry,
the determination 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. The material error of this order would point to at least a
prima facie unreasonable
result.’
[9]
What this analysis requires is a determination first of the nature of
the error alleged to have been committed by the arbitrator
and any
distorting effect that the error may have had on the outcome of the
arbitrator’s award. If it is reasonably clear
that but for the
identified error relied upon the award would have been different or
cannot stand on its own reasoning, then it
is
prima facie
an
unreasonable award. The court must then have regard to the issues and
the evidence as a whole to determine whether or not the
outcome is
nevertheless capable of being sustained on the
Sidumo
test.
[10]
The Applicant contends that the commissioner “placed undue
weight” on the employee’s assertion that she had
not been
informed of the procedures that she was alleged to have ignored and
that the arbitrator ignored the evidence of the Applicant’s
witness, Bouwer, who testified to the contrary.
[11]
The Applicant contends that “it is highly improbable that she
would have performed her duties without knowing the rules
which
applied to her duties” and in any event she ought to have known
the rules.
[12]
With regard to the latter contention, the respondent correctly
contended that an employee can only know what rules apply to
his or
her task if he or she is informed of them by the employer. Of
necessity an employee performs the task in the manner that
the
employer has indicated it to be performed.
[13]
The respondent demonstrated, with reference to the record, that the
evidence of both the employee and the witness Hamilton
Shezi was to
the effect that they both performed the task in the same way that
they had done year after year without demur from
those in charge of
them, and in the way they had been told to do it many years ago.
[14]
The arbitrator thus correctly found that the employee’s version
was corroborated by the evidence of Hamilton Shezi. The
Applicant did
not aver or establish, with reference to the record, that Shezi’s
testimony fell to be rejected on any grounds.
[15]
While corroboration is not a rule, in situations where there are
conflicting versions, it is in order for an arbitrator to
choose a
version which is corroborated, as long as there is nothing
inherently
improbable in such version. There is nothing in the version
itself (the version of Shezi) which does not make sense.
[16]
There is no substance to the Applicant’s submission that the
arbitrator ignored the evidence of Bouwer. The first respondent
pointed out that the arbitrator devoted two full pages to the
evidence of Bouwer. The arbitrator was thus alive to that evidence.
The respondent further demonstrated with reference to the record that
Bouwer did not establish unequivocally that stores staff
was trained
in the procedures and policies in issue.
[17]
In all these circumstances it cannot be said properly that the
arbitrator “placed undue weight” on the employee’s
assertion that she had not been informed of the procedures that she
was alleged to have ignored.
[18]
It is important to note that the weight to be attached to any
particular evidence is pre-eminently a determination to be made
by
the arbitrator because it is the function of the trier of fact to
weigh evidence and to make assessments of its sufficiency,
cogency,
credibility, probative value and so on. It is only where it can
be established that the assessment is so wrong that
it was an
assessment that no reasonable arbitrator could have made on the
material before him or her. The applicant has not demonstrated
such
an irregularity in the reasoning process of the arbitrator. Even if
the arbitrator made errors of fact and his reasoning is
not perfect,
it has not been demonstrated that his reasoning and decision is so
material that his conduct amounts to a reviewable
irregularity.
[19]
The next ground of review, as articulated by the Applicant, is that
the arbitrator “failed to consider the evidence of
the
Applicant’s witnesses”. The first respondent correctly
submitted that this is not a ground of review and the assertion
can
be dismissed solely on the basis that the allegation is baldly stated
as a legal conclusion. The Applicant makes no reference
in its
application to particular references or passages or findings in the
arbitration award to the record to justify its allegation.
In this
regard see the judgment of Gush J in
Naidoo
v National Bargaining Council for the Chemical Industry and
Others.
[1]
[20]
In my view the arbitrator gave a detailed award in which he dealt at
length with the testimony of each witnesses and analysed
their
evidence in relation to the evidence of other relevant opposing or
corroborating witnesses. In every aspect he provided a
cogent reason
for accepting or rejecting certain evidence.
[21]
In light of all the findings above, I make the following order:
1.
The review application is dismissed, with costs.
_______________________________
BENITA WHITCHER
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Z Luthuli from A P Shangase & Associates, Durban
For
the First Respondent: Adv P J Blomkamp instructed by Llewellyn Cain
Attorneys
[1]
[2012] 9
BLLR 915
(LC).