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[2017] ZALCPE 16
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African Bulk Earthworks v Commission for Conciliation, Mediation and Arbitration and Others (PR138/14) [2017] ZALCPE 16 (17 November 2017)
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
Not Reportable
CASE NO: PR 138/14
In
the matter between
:
AFRICAN
BULK EARTHWORKS
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
THEMBA CHOBOKOANE
N.O
Second Respondent
INNOCENT
ZAKHELE
ZULU
Third Respondent
Heard:
9 November 2016
Delivered:
17 November 2017
Summary:
An application to review and set aside an arbitration award of the
CCMA
may not be granted when the applicant has not established that
the commissioner has either misconceived the dispute before him or
her or reached an unreasonable decision.
JUDGMENT
LALLIE,
J:
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent who will be referred to as the
commissioner
in this judgment. It is opposed by the third respondent.
Factual background
[2]
The applicant conducts business in the construction sector. It
employed the third respondent as a construction health and safety
officer from May 2012 until 21 February 2014 when he was dismissed
for unauthorised absence from duty. It is common cause that
the third
respondent was absent from work on 28 January 2014. On 27 January
2014, the third respondent phoned Mr Booyce (Booyce),
the applicant’s
site agent at the East London site where the third respondent was
working. The third respondent’s version
was that the purpose of
the phone call was that he wanted to find out whether he should
report for duty the following day. Booyce
responded in the negative
as he was not going to be at work. The applicant’s version
which was presented by Booyce was that
Booyce told the third
respondent to report for duty on 28 January 2014. The third
respondent’s absence was construed to be
misconduct by the
applicant. He was subjected to a disciplinary enquiry and as he was
on a final written warning for similar misconduct,
he was dismissed.
He referred an unfair dismissal dispute to the first respondent which
would be referred to as the Commission
for Conciliation, Mediation
and Arbitration (CCMA) in this judgment. The commissioner arbitrated
the dispute and issued an award
in which he found the third
respondent’s dismissal substantively unfair and ordered the
applicant to pay him compensation
equivalent to three months’
remuneration.
The
award
[3]
The commissioner submitted the first respondent’s version that
Booyce told him not to report for duty on 28 February 2014.
His
reasons were that as no work could proceed in his absence, Booyce
told the workers not to report for duty on 28 February 2014.
He
rejected Booyce’s evidence that the reason for instructing the
third respondent to report for duty was that, unlike the
contractors
he told not to report for duty, he gave the third respondent a
different instruction because he was the applicant’s
permanent
employee. The commissioner noted that Booyce testified that he told
the third respondent to report for duty because he
wanted the third
respondent to do Booyce’s work which he usually assisted him
with. Booyce is not computer literate. The
first respondent from time
to time assisted him by doing some of his work on the first
respondent’s slip. Booyce conceded
that by virtue of the first
respondent’s position of health and safety officer, there was
no work to be done by him when
the site was not operational. The
commissioner found that the first respondent’s dismissal was
substantively unfair because
the applicant dismissed the first
respondent for refusing to do Booyce’s work. He further found
that the applicant acted
inconsistently by disciplining two permanent
employees who were also absent from work on 28 February 2014.
Grounds
for review
[4]
The applicant submitted that the award stands to be reviewed and set
aside because the commissioner committed a gross irregularity
within
the meaning of section 145 (2) (a) (ii) of the Labour Relations
Act
[1]
(the LRA). The award is
not rational and justifiable in relation to the evidence presented at
the arbitration. The irregularity
is based on the commissioner’s
failure to take into account the fact that the third respondent had
assisted Booyce on numerous
occasions with site agent administrative
work. He failed to consider the contradictory versions before him. He
failed to determine
the issues in respect of the misconduct which led
to the third respondent’s dismissal. He further erred in
determining the
validity of the instruction given by Booyce to the
third respondent. The third respondent opposed the application on the
basis
that the grounds the applicant sought to rely on are not valid.
The award according to the first respondent is not susceptible to
review.
Test
for review
[5]
The applicant sought to rely on errors made by the commissioner in
the conduct of the arbitration proceedings. For this Court
to find an
arbitration award defective as envisaged in section 145 (2) (a) (ii)
of the LRA, the applicant is required to establish
that the
commissioner either misconceived the enquiry the commissioner was
required to undertake in determining the fairness of
the third
respondent’s dismissal or that the commissioner reached an
unreasonable decision. In this regard see
Head
of the Department of Education v Mofokeng and others
[2]
.
The power to determine the fairness of an employees’ dismissal
for misconduct has been given to commissioners by the LRA.
They make
the determinations based on their sense of fairness. The commissioner
was required to determine whether the applicant’s
conduct of
dismissing the third respondent for misconduct was fair. In
determining whether the applicant has provided grounds to
have the
award reviewed and set aside, this Court is required to consider the
evidence and all the evidentiary material before
the commissioner in
its totality.
[6]
The totality of the evidence tendered at the arbitration does not
support the applicant’s case that the commissioner committed
gross irregularities. The applicant’s averment that the
commissioner failed to take into account the evidence that the third
respondent assisted Booyce with his administrative work is
unsustainable. The commissioner dealt with the issue and made a
finding
that the instruction given by Booyce was unreasonable and
that the applicant should not have dismissed the third respondent for
failure to do Booyce’s wok. The ground for review that the
commissioner failed to apply his mind to the contradictory versions
before him does not hold water. The commissioner identified the
conflicting versions and dealt with the contradictions. He preferred
the first respondent’s version and gave reasons for preferring
it. He dealt with the reason for the third respondent’s
dismissal. He cannot be faulted for taking into account the
instruction Booyce gave the third respondent because it forms an
integral
part of the reason for the third respondent’s
dismissal. The commissioner did not misconceive the nature of the
dispute before
him and his award falls within bounds of
reasonableness. The applicant did not establish grounds to have the
award reviewed and
set aside. Its application cannot succeed.
Order
[7] In the premises, the
following order is made:
1.
The application for review is dismissed.
______________________
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
For the Applicant:
Mr Van
Der Walt of Labuschagne
& Van Der Walt Inc.
For the Third Respondent:
In person
[1]
Act 66 of 1995 as amended.
[2]
[2015] 1 BLLR 50
(LAC) at para 32