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[2018] ZALCPE 4
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Lemley v Commission for Conciliation, Mediation and Arbitration and Others (PR66/13) [2018] ZALCPE 4 (19 January 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PR 66/13
In
the matter between:
EDWARD
LEMLEY
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
COKILE N.O.
Second Respondent
T-SYSTEMS
SA (PTY) LTD
Third Respondent
Heard:
1 December 2016
Delivered:
19 January 2018
Summary:
In an application to review and set aside an arbitration award in
which the commissioner found
the applicant not entitled to severance
pay, the applicant has to prove that the award is unreasonable. It is
not permissible for
the applicant to augment the reasons for refusing
alternative employment as the review court does not determine the
reasonableness
of the applicant’s refusal of alternative
employment.
JUDGMENT
LALLIE
J
[1]
The applicant was employed by the third respondent until his
dismissal for the third respondent’s operational requirements.
He approached the first respondent (the CCMA) in terms of section 41
of the Basic Conditions of Employment Act 75 of 1997 (the
BCEA) for
relief as the third respondent had refused to pay him severance pay
on dismissal. His dispute was arbitrated by the second
respondent
(the commissioner) who issued an arbitration award dismissing his
claim on the basis that he was not entitled to severance
pay. In this
application, the applicant seeks an order reviewing and setting aside
the arbitration award. The application is opposed
by the third
respondent.
[2]
The applicant submitted that the award is reviewable because it is
not one a reasonable decision-maker could reach. The grounds
the
applicant sought to rely on are that the commissioner disregarded his
evidence to the effect that the offer of alternative
employment the
third respondent made was not reasonable. He made errors which
resulted in him reaching an unreasonable decision.
He failed to take
into account relevant evidence including his evidence that the offer
was made before the commencement of the
retrenchment process and that
it is his refusal of the offer that triggered his retrenchment. It
was the applicant’s case
that the commissioner erred in his
analysis of relevant case law. The applicant attacked the
reasonableness of the award also on
the basis that the award is not
rationally connected to or substantiated by evidence. The third
respondent’s basis for opposing
this application is that the
grounds for review are devoid of substance.
[3]
For an arbitration award to pass muster, it must be one which a
reasonable decision-maker could make based on the evidence tendered
at arbitration. The award must, therefore, fall within bounds of
reasonableness. It is trite that different commissioners acting
reasonably may reach different conclusions on the same facts. The
reasonableness of an award is determined on the totality of the
evidence tendered at arbitration. The applicant’s submission
that the award is unreasonable because the offer of alternative
employment was made before the commencement of the retrenchment
exercise and never repeated is not valid. Part of the evidence
that
the commissioner took into account was that in a meeting held on 11
June 2009, an official of the applicant’s trade
union intimated
that the applicant had declined alternative employment due to his age
and family circumstances.
[4]
The applicant’s argument that the award is not rationally
connected to the evidence tendered at arbitration is unsustainable
as
the arbitrator dealt with the issue before him, considered evidence
and made findings and a final decision based on evidence.
Similarly,
the argument that the commissioner erred in his analysis of relevant
case law is untenable. The commissioner considered
case law on
entitlement to severance pay and applied it to the facts before him.
He considered objective facts as well as the applicant’s
personal circumstances. His conclusion, based on relevant authority
that the applicant was not entitled to severance pay cannot
be
faulted. It is not the duty of the review court to determine the
applicant’s entitlement to severance pay. It is therefore
impermissible for the applicant to augment the reasons for refusing
alternative employment on review. The review court has to determine
the reasonableness of the commissioner’s arbitration award. The
applicant has not established valid grounds to have the award
reviewed and set aside. His application can, in the circumstances,
not succeed.
[5]
In the premises, the following order is made:
Order
1.
The
application is dismissed.
Z
Lallie
Judge
of the Labour Court of South Africa
APPEARANCES
:
FOR THE APPLICANT:
Mr Van Der Walt of Van Der Walt Attorneys
FOR THE THIRD RESPONDENT:
Mr Moshoana of
Mohlaba & Moshoana Inc