About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 358
|
|
Steval Engineering (Pty) Ltd v Mphaphuli NO and Others (JR2354/15) [2017] ZALCJHB 358 (27 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE NO: JR 2354/15
In
the matter between
STEVAL
ENGINEERING (PTY) LTD
Applicant
and
JOSEPH
MPHAPHULI N.O
First
Respondent
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
Second
Respondent
STEVEN
FRANK CRONJE
Third
Respondent
Heard:
13 September 2017
Delivered:
27 September 2017
Summary:
Errors committed by an arbitrator in the conduct of arbitration
proceedings which have no impact on the reasonableness
of the award
do not constitute the defects envisaged in
section 145
(2) of the
Labour Relations Act of 1995
.
JUDGMENT
Lallie,
J
Introduction
[1]
The applicant approached this court for an order reviewing and
setting aside an arbitration award of the first respondent (the
commissioner). The application is opposed by the third respondent.
The basis of the applicant’s case is that the award is
defective as envisaged in section 145 (2) of the Labour Relations
Act
[1]
(the LRA).
Factual background
[2]
The applicant employed the third respondent in 2012 until his
dismissal on 2 October 2015, when he worked as a foreman. The
events
leading to the third respondent’s dismissal are that sometime
in 2015, the applicant was concerned with the third
respondent’s
conduct and absence from work. The third respondent was suspended for
an unspecified period from 7 July 2015.
The applicant required the
third respondent to subject himself to a medical examination by Dr
Landman. It arranged appointments
for the examination for 15 and 16
July 2015. The third respondent did not honour the appointments. He
was booked off sick by his
doctor from 3 August to 4 September 2015.
The applicant made a further appointment for the third respondent to
be examined by Dr
Landman on 15 September 2015. At 14h00 on 16
September 2015, Dr Landman forwarded an email to the applicant
advising that the third
respondent had returned the pathology form
for blood tests to his receptionist and refused to undergo any tests.
The applicant
responded by delivering to the third respondent a
disciplinary notice for an enquiry which was scheduled for 30
September 2015.
The charge against the third respondent was:
“
Breach of Contract of
Employment in that you failed and or refused to undergo a Medical
Examination as requested by the Doctor Landman
on 15 September 2015”.
[3]
Pursuant to a disciplinary enquiry which was held in the third
respondent’s absence, he was found guilty and dismissed
for the
misconduct which formed the basis of his charge. He referred an
unfair dismissal dispute to the second respondent where
the first
respondent found his dismissal substantively unfair but procedurally
fair and ordered the applicant to pay the third
respondent an amount
of R43 000.00 for outstanding remuneration and compensation in the
amount of R192 000.00 which is equivalent
to his six months’
remuneration. The global amount of the relief granted was in the
amount of R235 000.00.
The
award
[4]
The commissioner recorded that at the heart of the dispute was
whether the third respondent committed an act of misconduct by
not
honouring the doctor’s appointment, conduct which, on the
applicant’s version, constituted insubordination punishable
with dismissal. He noted that the essence of the evidence of Mr
Aucamp (Aucamp), the only witness for the applicant, was that the
third respondent did not honour his doctor’s appointments of 15
and 16 July 2015. The evidence was not disputed by the third
respondent but it was submitted that he was unwell at the time and
honoured the appointment of 4 September 2015. The commissioner
found
that the charge was that the applicant did not comply with the
respondent’s instruction when in fact the opposite was
true. He
concluded that the charge had no basis in law. He added that even if
the third respondent had committed the misconduct,
the sanction of
dismissal would have been inappropriate as the prescribed penalty in
terms of the Site Specific Agreement was a
final written warning. He
found the dismissal substantively unfair. The commissioner, however,
rejected the third respondent’s
version that the applicant’s
refusal to provide him with transport to the venue of the
disciplinary enquiry rendered his
dismissal procedurally unfair.
Grounds for review
[5]
The applicant submitted that the arbitrator misconstrued the nature
of the charge against the third respondent as being disobeying
a
lawful instruction when it was in fact breach of his contract by not
undergoing medical tests by Dr Landman. He erred in finding
that the
third respondent was dismissed for failure to attend a consultation
on 15 and 16 July 2015. He therefore embarked on the
wrong enquiry
and his error led him to a conclusion which no arbitrator could
reasonably have reached. Had he embarked on the correct
enquiry, he
would have established that the applicant’s evidence was not
refuted. It was further argued that had the arbitrator
evaluated the
misconduct which formed the basis of the third respondent’s
charge, he would have at least concluded that he
committed gross
insubordination which justified the sanction of dismissal. The
applicant submitted that the arbitrator committed
a reviewable gross
irregularity in disregarding the concession made by the third
respondent under cross-examination that he did
not have to undergo
medical tests because he was medically fit. The third respondent
denied that the award is reviewable. He submitted
that it is
reasonable because his dismissal was substantively unfair as it was
punishment for reporting that his superior had raped
his wife in the
applicant’s house that had been allocated to him while the
third respondent was on duty. He denied that the
grounds for review
have substance.
[6]
The applicant argued that the arbitrator misconstrued the nature of
the dispute before him in that he conducted the wrong enquiry.
He
considered whether the third respondent had failed to honour a
doctor’s appointment on 15 and 16 July 2015 instead of
determining whether he refused to undergo a medical examination on 15
September 2015. The error tainted his whole award and led
to a
failure of a fair trial of issues. He relied on the following
dictum
[2]
:
“
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 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) is to a result in a misconceived
enquiry a decision
which no reasonable decision-maker could reach on all the material
which was before him or her.”
[7]
The third respondent argued that the distinction the applicant sought
to create between insubordination and breach of contract
was
artificial as at arbitration its evidence was that the third
respondent was dismissed for misconduct for his failure to adhere
to
an instruction to attend consultations on 15 and 16 July 2015.
Defending the reasonableness of the award, the third respondent
argued that the clause of his contract of employment he was alleged
to have breached required him to submit himself, at the expense
of
the applicant, to examination by any medical officer appointed by the
applicant. The third respondent led evidence to the effect
that he
honoured the doctor’s appointment of 4 September 2015 for which
the applicant had to pay. The applicant led no evidence
to prove that
it had paid for the appointment of 15 September 2015, which formed
the subject of the applicant’s charge.
[8]
It is trite that an award may be reviewed and set aside if the
arbitrator has misconceived the dispute before him or her,
alternatively,
when the arbitrator has reached an unreasonable
conclusion. The applicant argued that the arbitrator misconceived the
dispute before
him by conducting the incorrect enquiry. He enquired
into the fairness of the third respondent’s dismissal for
failure to
honour doctor’s appointments on 15 and 16 July 2015
when he was in fact dismissed for refusal to undergo medical
examination
on 15 September 2015. The third respondent denied that
the arbitrator misconceived the dispute before him. He argued that
the arbitrator
dealt with the third respondent’s refusal to
undergo medical examination on 16 September 2015 but concluded that
no evidence
was presented to support the applicant’s case. In
determining the reasonableness of the arbitration award I am enjoined
to
consider the evidence that was led at the arbitration in its
totality. When Aucamp sought to rely on the email the third
respondent
received from Dr Landman regarding the third respondent’s
refusal to undergo medical examination on 16 September 2015, the
commissioner informed him that it did not carry much weight. He
expressed the view that even Dr Landman was not a witness to the
refusal as he based his email on information he received from his
receptionist.
[9]
The record supports the third respondent’s version that the
arbitrator dealt with the issue before him. Considered the
third
respondent’s refusal to undergo medical examination on 16
September 2015 and concluded that the applicant failed to
lead
admissible evidence to prove it. There is merit in the applicant’s
submission that the arbitrator erred in identifying
the misconduct
which led to the respondent’s dismissal. Errors do not
constitute valid grounds for review. It is their effect
on the
outcome of the award that have an effect on the reasonableness of
awards. The arbitrator’s errors did not affect the
reasonableness of his award because he dealt with the issue before
him and reached a reasonable decision on it. The argument that
he
misconceived the dispute before him is untenable. In
Pharmaco
Distribution (Pty) Ltd v Lize Elizabeth Weideman
[3]
it was held that the consent to medical examination in a contract of
employment does not constitute justification as contemplated
in
section 7 (1) of the EEA. The applicant did not establish that the
award falls outside the bounds of reasonableness.
[11]
The third respondent should not be out of pocket in his attempt to
defend an award in his favour. Both the law and fairness
require that
the applicant pay the third respondent’s costs.
[12]
In the premises, the following order is made:
Order:
1.
The
application for review is dismissed with costs.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
For the Applicant:
Advocate J Eastes
Instructed by
Erasmus-Scheepers Attoeneys
For the Third
Respondent:
Advocate P Kirstein
Instructed by:
Van Der Merwe Attorney
[1]
Act 66 of 1995 as amended.
[2]
Head of the
Department of education v Mofokeng and others
(2015)
36 ILJ 2802 at para 32
[3]
[2017]
ZALCJHB 258 (4 July 2017)