About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 112
|
|
Belloord 28 CC v CCMA Johannesburg and Another (JR1499/17) [2018] ZALCJHB 112 (15 March 2018)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
CASE
NO: JR 1499/17
In
the matter between:
BELLOORD
28 CC
Applicant
and
CCMA
JOHANNESBURG/J D SELLO
First
Respondent
LUCKY
M MASELESELE
Second
Respondent
Application
heard: 13 March 2018
Judgment
delivered:15 March 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an unopposed application to review and set aside an
arbitration award issued by commissioner JD Sello on 11 July 2017,
under case number GAJB 3343-17. In his award, the commissioner
held that the second respondent’s dismissal by applicant
was
procedurally fair but substantively unfair. The commissioner went on
to order the second respondent be reinstated, with retrospective
effect.
[2]
The application for review has been prepared by one of the
applicant’s employees. The application does not comply strictly
with the format that is ordinarily used in this court and
applications of this nature, and I have had some difficulty
discerning
precisely what the basis for the review might be. The
application referrals interchangeably to the internal disciplinary
hearing
and the arbitration proceedings under review and neither were
the founding affidavit nor the supplementary affidavit clearly
articulate
the applicant’s grounds for review.
[3]
Be that as it may, the relevant facts are recorded in the
commissioner’s award and I do not intend to burden this
judgment
with their repetition. It is sufficient to record for
present purposes that the second respondent was employed by the
applicant
with effect from 1 September 2016. He was dismissed less
than two months later, after a disciplinary hearing, on 24 November
2016.
The charge levelled against the second respondent was one of
gross insubordination in the form of a refusal to comply with the
instruction given by his manager, a Mr de Beer, to wear protective
clothing. The defence proffered by the second respondent during
his
disciplinary hearing was that he had been excused from any obligation
to wear protective clothing by the owner of the business,
a Mr
Bezuidenhout, since he was a supervisor. The disciplinary hearing was
chaired by Mr Botha, who also prepare the papers in
this application
and appeared on the applicant’s behalf. Botha from the second
respondent are guilty of the charge against
him and dismissed him
some relief. The reasons for dismissal were extended to include
reasons that were not the subject of the
original charge sheet and
which related to the second respondent’s conduct after he had
been charged.
[4]
The case that served before the commissioner was one that concerned
the substantive and procedural fairness of the second respondent’s
dismissal. The arbitration proceedings were preceded by points in
limine raised by the applicant. These related to a request previously
directed to the management of the CCMA to move you arbitration to
Randfontein, and a point relating to a second referral that had
been
initiated by the second respondent. The applicant’s
representative also raised the fact of that one of his key witnesses,
De Beer, had been hospitalised and was unable to give evidence. In a
most commendable fashion, the commissioner dealt with all
of the
preliminary issues and resolve them on the basis the arbitration
would commence with Botha giving evidence as to the procedural
aspects and that the matter would be postponed if necessary for
further evidence.
[5]
In the result, Botha testified as to the disciplinary hearing that he
had conducted and then inexplicably, closed the applicant’s
case. The second respondent then testified, and gave evidence as to
Bezuidenhout’s advice to him that it was not necessary
for him
to wear protective clothing given his status as a supervisor. The
second respondent also gave evidence as to the conduct
of the
disciplinary hearing, but none of that evidence is material for
present purposes.
[6]
In his award, and his analysis of the evidence, commissioner rejected
all of the second respondent’s challenges to the
fairness of
the procedure adopted prior to the second respondent’s
dismissal. As I have indicated, the commissioner concluded
ultimately
that the second respondent’s dismissal was procedurally fair.
That decision and the commissioner’s reasoning
leading to it
have obviously not been challenged in the present proceedings and I
need say no more about them. In so far as substantive
fairness is
concerned, the commissioner noted the definition of insubordination
as a deliberate refusal to obey a reasonable and
lawful instruction
by an employer. The commissioner went on to note that the second
respondent’s undisputed evidence was
that he had only taken
umbrage at the manner in which De Beer had addressed him and that
Botha, to the extent that he gave evidence
as to what transpired was
not present and therefore unable to proffer direct evidence regarding
the alleged incident. The commissioner
went on to pursue that he had
offered to adjourn the arbitration in order to afford the applicant
the opportunity to call all of
its witnesses but that for ‘some
strange reason’ the applicant had closed its case after Botha’s
evidence. As
such, the commissioner noted that the was no evidence
before him that the second respondent had in fact refused to carry
out De
Beer’s instructions, or that he had challenged De Beer’s
authority.
[7]
As I have indicated, the applicant’s grounds for review are
difficult to discern. The applicant does not make out a case
based on
the reasonableness threshold, to which I refer to below. The
applicant filed a statement of case, which I was advised
I could
ignore - quite rightly, since a statement of case has no place in
motion proceedings. The founding affidavit is focused
less on the
commissioner’s award than on the disciplinary hearing but be
that as it may, the applicant appears to contend
that because Botha
was a witness to the disciplinary hearing, his evidence regarding
substantive issues was not hearsay. When pressed
during the hearing
of the present application is to precisely what gross irregularities
or misdirections the applicant asserted,
Botha submitted that the
case referred to arbitration by the second respondent was one that
only concerned procedural fairness
and that to the extent that the
commissioner had found against the applicant on the issue of
substantive fairness, that constituted
a material misdirection.
[8]
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; 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. Thus, material errors of fact on the part of the
arbitrator, as well as the
weight and relevance to be attached to
particular facts or a failure to have regard to particular facts are
not in themselves sufficient
grounds for review; their effect must be
to render the outcome unreasonable.
[9]
Precisely how this determination is 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.
[10]
What this analysis requires is that the review court determine first
whether the arbitrator perpetrated any ‘defect’
or
irregularity contemplated by s 145 (2). Secondly, the court must have
regard to the distorting effect that the error may have
had on the
outcome of the arbitrator’s award. Thirdly, 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 the
award is
prima facie
an unreasonable award. Finally, the court
must 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. Put more plainly, the review
court must ask whether but for the defect, a reasonable
decision-maker could have come to the
conclusion reached in the award
on the same material.
[11]
When conducting this analysis, the review court must avoid falling
into the trap of what the Labour Appeal Court in
Gold Fields
referred to as a ‘piecemeal analysis’ of each of the
arbitrator’s findings. The question to be answered ultimately
is whether on the totality of the evidence, a relationship of
reasonableness exists between that evidence and the result reached
by
the arbitrator.
[12]
A useful summary of the test to be applied was the subject of a
recent decision by the LAC in
South African Breweries v Hansen &
others
(unreported 25 May
2017 CA 6/2016)
where the court stated:
[10] The test tha
t
the Labour Court is required to apply in a review of an arbitrator’s
award was settled by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others (Sidumo)
.
It is that an arbitration award is reviewable if the decision reached
by the arbitrator was one that a reasonable decision-maker
could not
reach. Essentially, this test requires the Labour Court, sitting as a
court of review, to enquire whether the decision
under review is one
that a reasonable decision-maker could not reach on the evidential
material available. On this test, an arbitration
award based on
defective reasoning by an arbitrator may still pass the muster
required in reviews, provided that the result is
one that a
reasonable decision-maker could have reached. This was
clarified by the Supreme Court of Appeal in
Herholdt
v Nedbank Limited (Congress of South African Trade Unions as amicus
curiae)
as follows:
‘
For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s 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, are not in and of themselves sufficient for
an award to be set aside, but are only of any consequence
if their
effect is to render the outcome unreasonable.’
[11]
In
Gold Fields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
(Gold Fields),
this Court refined
the
Sidumo
test by introducing
a
two-stage enquiry
.
In short, this
requires the Labour Court to consider two issues: The first is
whether the applicant has established an irregularity.
This
irregularity could be a material error of fact or law, the failure to
apply one’s mind to relevant evidence, or misconceiving
of the
enquiry or assessing factual disputes in an arbitrary fashion. The
second is whether the applicant has established that
the irregularity
is material to the outcome by demonstrating that the outcome would
have been different having regard to the evidence
before the
arbitrator. An arbitration award will, therefore, be considered to be
reasonable when there is a material connection
between the evidence
and the result (footnotes omitted).
[13]
As I have noted above, the applicant’s grounds for review are
so imprecisely expressed, they are insufficient to provide
a case for
any respondent to answer. Even if I accept the applicant’s
contention that the commissioner made a decision on
substantive
fairness, an issue that had not properly been referred to
arbitration, there is no merit in this submission. First,
this is not
a ground for review disclosed in either the founding or supplementary
affidavits. Second, the Constitutional Court
has made clear that
provided the dispute referred is one that is alleged to concern an
unfair dismissal, the nature and extent
of the dispute is a matter
for determination by the commissioner if necessary. As I indicated
above, the commissioner during the
course of the proceedings made the
observation that the dispute concerned both substance and procedure.
This was never challenged
during the course of the arbitration, and
indeed, the arbitration was conducted on the basis that the second
respondent disputed
that there was a substantively good reason for
his dismissal. In these circumstances, in my view, the applicant has
failed to establish
the existence of any gross irregularity or
misdirection on the part of the arbitrator.
[14]
Even if I am incorrect in coming to this conclusion, and to the
extent that the court is nonetheless obliged to satisfy itself
that
despite any misdirection on the part of the arbitrator the award is
nonetheless sustainable by reference to the reasonableness
threshold,
I am satisfied after a perusal of the record that the arbitrator’s
decision is one to which a reasonable decision-maker
could come
having regard to the evidence. On an application of the principles
established in
Goldfields
, the arbitrator clearly understood
the nature of the enquiry before him, and afforded the parties an
opportunity to be heard. His
reasons for finding that the version
advanced by the second respondent had not been challenged and ought
to be sustained are not
capricious, irrational or arbitrary.
[15]
For the above reasons, the commissioner’s award states to be
appealed and the application for review dismissed.
I
make the following order:
1.
The application is dismissed.
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: Employee